Seanad Éireann - Volume 157 - 12 November, 1998

Protections for Persons Reporting Child Abuse Bill, 1998 changed from Children (Reporting of Alleged Abuse) Bill, 1998: Committee Stage.

SECTION 1.

An Cathaoirleach: Amendments Nos. 1, 2 and 3 are related and amendment No. 12 is consequential on amendment No. 2. Therefore, amendments Nos. 1 to 3, inclusive, and No. 12 may be discussed together by agreement. Is that agreed? Agreed.

Dr. Henry: I move amendment No. 1:

In page 3, line 27, after “Act” to insert “or any person deemed to be so by the Minister”.

On Second Stage I expressed my concern that the definition of the term “a designated officer” is too narrow. While I accept the Minister of State wants people to report in the most suitable and direct way possible — in other words, reports should be made to someone within the health board to avoid confusion — the proposal contained in the amendment is sympathetic with the spirit of what Deputy Shatter intended when he drafted the Bill in its original form. When the Bill was introduced by Deputy Shatter it was stated in section 2 that, unless the context otherwise requires, “an appropriate authority” means any statutory or non-statutory body concerned with the welfare and care of children which includes each health board in the State and the Garda Síochána. He further stated that “an appropriate person” means any person who is a member or an employee of any such body. That is a much broader definition than the one currently contained in the Bill and it is much more in line with the recommendations of the Murphy report, which I quoted on Second Stage.

Amendment No. 1 would allow the Minister, if he believes it is correct to do so, to appoint members of staff of other statutory or non-statutory bodies to serve as designated officers. I am [74] not insisting that certain people serving within sporting bodies or voluntary organisations should be designated officers. Following Second Stage, I received a complaint that some voluntary bodies which operate junior sections are perhaps not as careful as they should be about monitoring those sections and the activities of those who run them. For that reason, I hope the Minister of State will accept the amendment.

Minister of State at the Department of Health and Children (Mr. Fahey): Amendment No. 2 inserts a definition of the term “Minister” as “Minister for Health and Children” for the purpose of the Bill. This was not previously required but it is necessary now because of the proposed insertion of amendment No. 2.

As stated on Second Stage, the impetus for amendment No. 3 arose because I accepted in good faith and at short notice an Opposition amendment which was designed to ensure the speedy implementation of the Bill when enacted. As stated previously, this was always my clear intention, but I was subsequently advised the amendment I accepted might conceivably give rise to questions about the legality of the appointment of designated officers in the future. Accordingly, when informed of this possibility, I instructed my officials to have the offending section redrafted to copperfasten the designation of officers of the health board. In doing so I was also conscious of the considered contribution of a number of Deputies on Committee and Report Stages in the Dáil who advised me that I should amend the legislation to allow the Minister to give directions to chief executive officers under this section.

I have given this matter careful consideration and, in the interests of ensuring a uniform approach to the granting of immunity to reporters under the terms of the Bill, I propose to amend section 2 to allow for a direction to be given to chief executive officers regarding the officers to be appointed as designated officers. In effect, prior to the commencement of the Bill, chief executive officers will be asked to designate a broad range of categories of staff to be designated officers for the purpose of the Bill. As I reported previously to the Dáil, I had arranged for consultations with the chief executive officers on this point. For the information of the Seanad I will outline the main categories of health board officers who, at this stage, it is envisaged will be designated. They are social workers, child care workers, public health nurses, hospital consultants, non-consultant hospital doctors — particularly those employed in accident and emergency departments, community welfare officers, speech therapists, occupational therapists and others.

I am satisfied these are the professionals in whom members of the public are most likely to confide or to whom they will express concerns. In practice, these officers will pass on reports immediately to the relevant child care staff in health boards. In most cases, this will be the child care manager. I will review the matter with the [75] health boards prior to the implementation of the Bill. If further categories of staff are required, I will add them to the aforementioned list.

I am anxious to include as wide as possible a range of personnel from the statutory agencies to be designated under this section. I have gone as far as possible to meet Members' legitimate concerns about the immediate and uniform implementation of the legislation by revising section 2. Accordingly, I must reject amendment No. 1 in the name of Senator Henry even though I take her point. That point was also made by a number of Deputies in the Dáil and I subsequently amended the definition of the term “designated officer”. We are now prepared to widen that definition to include all health board personnel who come into contact with the general public. We feel that nurses, doctors, social and child care workers and others represent a broad spectrum and consequently there will be an adequate designation. If the Senator has any other categories she wishes us to include, I will be happy to do so.

In dealing with the question of designated officers, however, we must take care that we can identify who they are, otherwise it would be impossible to have the reporting procedures which we are all so anxious to get right. It is a complex issue. Many of the troubles of the past arose because the complexities were not understood and dealt with. Consequently, I am happy to listen to the Senator, as I listened to a long discussion in the Dáil, to tease out this issue. We must respond in a definitive way or it defeats the purpose of the section.

Dr. Henry: I appreciate that the Minister has expanded the situation under section 2 and I am glad about that. I want to allow the Minister leeway so a committee chairman might be appointed a designated officer if it is realised at some stage that some non-statutory bodies need to be included. We do not want to have to go through further legislation. I do not want the Minister to specify anyone. If it is felt that there may be non-statutory bodies where a designated officer is also needed, the legislation would exist to allow the Minister to appoint such a person. There is a good list of people within the health board who are likely to be informed but in five years time it will be realised that people are still telling members of committees of swimming clubs and junior GAA teams. Of course those people should report immediately to health board officials but there should be some protection for those who did the original reporting.

I am not asking for any specifications, just that the Minister should have the leeway to appoint such designated officers without having to go through further legislation.

Mrs. Jackman: I support Senator Henry. I am pleased that the Minister has specified the designated officers within the child care management [76] arena. Senator Henry is pushing to ensure that we never have to go through the whole scenario again. She wants to copperfasten a procedure which takes into consideration voluntary and non-statutory bodies which would need to be designated at some stage.

I am concerned when I look at the amendment tabled by Deputy Shatter which was not accepted. He proposed that the Minister “shall” publish guidelines describing the category of persons who shall be appointed designated officers. The legislation uses the phrase “the Minister may give a direction”. There is little between them but “shall” could be considered stronger. The Minister may give direction in writing to the chief executive of the health board or he may not. Could that be stronger? Does that mean the Minister would come into play only if there was a problem as a result of a chief executive officer asking him? It is a little weak in comparison to Deputy Shatter's original amendment.

I agree with Senator Henry that she is reacting to the Murphy report. She is anticipating — and I hope it does not happen — that the non-statutory and voluntary bodies, at some time, may not have a facility to do something about a report made to them. It would go back into the shadows and we would have to introduce more legislation.

Mr. Fahey: Could the Senator clarify where she is talking about “may” and “shall”?

Mrs. Jackman: An amendment tabled by Deputy Shatter read that the Minister “shall publish guidelines describing the category of persons who shall be appointed designated officers”. That amendment was rejected. The Minister's amendment reads that the Minister “may give a direction in writing” to the chief executive officer of a health board requiring him to appoint designated officers. The Minister gives directions to the chief executive officer to appoint as a designated officer each person falling within a category of officer of the board specified in the direction. I feel that “may” is weak in comparison to the amendment which was not accepted which used the words “shall publish guidelines”.

Miss Quill: I listened carefully to Senator Henry and she is correct when she says that, while we must confront this issue in the context of all the information available to us, it is a good idea, if it is possible in the framing of this legislation, to leave some leeway to make provision for eventualities. We are making law which we hope will stand for a long time. I agree with Senator Henry and I am glad that we are not taking Report Stage today. That will give the Minister time to take on board concerns expressed by us on Second Stage and which were clearly articulated today by Senator Henry. The Minister will hopefully find himself in a position to come back to us on Report Stage and show us that, following deliberation, he has added this to the Bill. By way [77] of a ministerial order or a new guideline emanating from such an order, this Bill could be amended to take on board the very real concerns expressed by Senator Henry and in the Murphy report.

I commend the Minister for broadening the range of people who can act as designated officers. It is broader than I initially realised. I understand his concern when he says that there will come a time when he does not want to broaden it further. It is a fact that everybody's business becomes nobody's business. That is what happened in the swimming scandal. People knew what was happening and chatted about it among themselves; it may be that they agonised about it. However, one way or another they did not take the correct course of action and as a result, pain was inflicted on so many victims who will carry the scars for the rest of their lives.

I understand why the Minister wants to be clear and definite about where he places responsibility and the protection in law which goes with that. Nonetheless, as Senator Henry said, if someone in the voluntary sector wants to report to another person in a key position of authority as opposed to going directly to a garda or health board officer, provision ought to be made to enable that to happen. I read the Murphy report in great detail. It recommended, that in the first instance, officers might have the matter of suspicion discussed within the internal structure. That should not be ignored. If it can be taken on board I ask the Minister to come back to us about it on Report Stage.

This is Committee Stage and I will not make a Second Stage speech. However, our history is one of under-reporting. It is like the valley of the squinting windows — we are all looking out to see what is happening but none of us is taking action to prevent vulnerable people being damaged and destroyed. This Bill should ensure that citizens are alerted to their responsibility, particularly to children. Every adult citizen has a responsibility to take care of the next generation. This must be taken into account. This Bill should not be copperfastened in such a narrow fashion that matters which arise at a later stage cannot be provided for. I ask that Senator Henry's concerns be taken into account.

Dr. Fitzpatrick: I have a great deal of sympathy for Senator Henry's amendments and I listened carefully to Senator Quill. However, basically we are making law here today. The nub of the question is whether the Minister can delegate statutory powers to those in the voluntary sector. I want a strong Bill, not a narrow one. I do not want weaknesses shown in the Bill in years to come because of what we do today. If cases are reported they will go to court. I would hate to see somebody getting away with a crime. I look forward to the Minister explaining the thinking behind this section.

[78] Mr. Fahey: Deputy Quill gave the most important reason for this Bill — we want to get away from the culture of the squinting windows. Perhaps Senator Henry will expand on why she feels her amendments are necessary. I am satisfied that reports should be made to the statutory authorities. I accept the legitimate concerns of Members about not allowing those in the voluntary sector to be involved in the loop. This is a small part of the wider issue of mandatory reporting on which we are preparing a White Paper. We will introduce legislation and I will be happy to examine this concept further in that context.

We have to invest significant moneys in an adequate child care system. The essence of that system is that when someone reports a case, the authorities have the ability to respond quickly and adequately and that there are qualified people who can deal with it in a professional way. For that reason, we are employing new child care managers at a very high cost. I am looking for further funding from the Government to strengthen our ability to respond quickly and effectively to reports.

That is why we want to get away from the culture, whether in a club or other organisation, where one person reports to another person, an amateur, the chairman of a football or swimming club who works in an office during the day. That person is then asked to adjudicate. He cannot use the “Dúirt bean liom go ndúirt bean leí” concept. He has to go to the committee and decide whether to report it.

Can anyone honestly say that is the proper way to go about reporting? That will not improve what has been happening in clubs where there is a controversy or a scare about someone. The club must make a decision but the chairman is not the person to do that. We want to get away from that culture which has bedevilled child abuse reporting here.

What we want is simple — if anyone is worried about or suspects child abuse, they can go to a designated officer in the health board or any garda. I wish to clarify a misunderstanding of Senator Henry's. There is a specific set of protocols between the Garda and the health boards for immediate transmission of reports. We are strengthening those in the child abuse guidelines legislation.

Every expert is of the same opinion, from the officials in the Department to the social workers in the health boards, to the management of health boards, to the expert group which I established last February under an independent chairperson, made up of voluntary agencies and professionals. If we are to have a proper system of reporting we need clear and distinct lines of communication. We will hear the arguments of Senators Henry and Jackman later.

We do not want to encourage any further designated officers who are not capable of dealing with or trained to deal with a report and who are simply becoming another link in the chain we [79] want to break. Forty five million pounds have been invested in child care services in the past four years, double the funding given prior to that time, yet, the problems are not getting fewer and we are striving to ensure they do not get any worse. We must have specific and clear guidelines. There is no point in making a report if the statutory agency is not able to respond immediately and effectively and Members will be aware from the figures that statutory agencies are unable to respond immediately and effectively. For that reason we must improve the response of health boards, both in terms of response times and effective action. Also we must ensure proper treatment, intervention and therapeutic care for children who we discover from the reports are victims of abuse. Of course this is another issue.

I am anxious to hear the arguments because I accept the point made in the Murphy report that if a person has a suspicion he or she should report it to the chairperson of the club. There is nothing to stop someone reporting to the chairperson of a club because, having also reported to the designated officer in the health board or the Garda, they are covered. If a person has an immediate worry that somebody in the club should be expelled, I suggest he first goes to the Garda or the health board. At the same time there is nothing to stop him telling the chairperson he has done that. In that case the chairperson can take immediate action, the person is covered by immunity and the statutory agencies will make the examination.

Recently I spoke to social workers as I was taken by the stringent arguments Deputy Shatter made in the Dáil. All the social workers were clear in their minds that the biggest problem they had was that people would talk about something and not know whether it was just a suspicion. They were afraid that if they reported it they would destroy somebody's reputation. The social workers said that kind of circle is more harmful to their work. If the person with the suspicion went directly to them and let them deal with the issue in a professional way, it would be far more efficient, quicker and easier to deal with. They are the professionals on the ground.

If Senators would like to talk to the professionals we can arrange that; Senators can choose social workers in any part of the country. They are at one and they know best the proper procedures. We consulted with all the health boards during the passage of this Bill through the Dáil. They all said the proper thing to do was to have designated officers within the statutory agencies. While I appreciate and wish to accommodate Senators points — I will think about what I hear today — I wish to hear cogent arguments the system as amended is better than the Government's proposal.

Dr. Henry: I thank the Minister of State for his reply. I hope he and the social workers are at one when it comes to mandatory reporting. It may not [80] be the same then. I thank Senators Quill and Jackman for their support. It is important to note that I am not asking the Minister to expand the number of designated officers at this moment. I am giving him the latitude to expand the number if he needs to.

I wish everything was as clear and straightforward in life as the Minister wishes it to be. He is right, people should report. There should be a chain of command within the health service by which proper and direct action is taken immediately and professional experts in the area deal with these cases. People in the voluntary sector and in non-statutory bodies should be discouraged from taking on the responsibilities of trained social workers.

However let us be practical. The Minister has been practical about the extent to which the statutory bodies are able to do anything at present. I am sure the Minister, like myself, saw the reports in the newspapers that the Eastern Health Board had not inspected any child care facilities in its jurisdiction in the past few years. I presume the same must have happened with the other health boards. I do not see why the Eastern Health Board, the one with which I deal, would be any worse than the others. They are terribly over-stretched. They are not very close to what is happening on the ground. The Minister has expanded the number of designated officers. I was delighted to hear that.

This amendment does not have to come into play at all and I will not press it if the Minister will think about it. It does not have to come into effect if his proposal is seen to be working adequately in five years time and everyone is reporting to the health boards. That would be fine. However I know from experience working in the health service for 30 years, there are unfortunately a large number of cases that “trickle through”. I anticipate that this will not change.

It is not a valley of squinting windows. I think Senator Quill was implying we are inclined to close the lace curtains and pretend nothing is happening outside. There are people in voluntary organisations who are not happy about the way something is happening. They want to do the best they can for children but they are not sure to whom they should report. Let us suppose that within five years we do not get through to these people that they must contact someone in the health board, then I want the Minister to be able to put the youth officer of a club in a position to which people can report without fear of prosecution. That is all I want. I do not want him to do anything today. He can consider it in five years time and set a time limit. I would like there to be leeway. I will not press the amendment as the Minister said he will think about it. The Minister will have gone on to higher things by then but he could leave the then Minister of State with the leeway to deal with a problem if youth clubs have not got the message and there needs to be an officer within the organisation to whom people can report. That officer can be told that he needs [81] to report immediately. I am anxious that we will be left with a situation we might regret in a few years time. The Minister need not appoint any other designated officers. I agree with his aims and that is preferable.

I have not been able to ascertain from inquiries within the health board if it is true that none of these facilities has been inspected in the past few years. It is few years since we brought in legislation that facilities for children were to be inspected. I acknowledge this is very difficult because it is a large area and inspections can be expensive and time consuming. Those inspecting child care facilities cannot simply run in, look around and run out. All these things take time and it is a very onerous task for the social workers involved. Of course they would like people to report directly to them but I am asking the Minister to leave leeway.

Miss Quill: We are in tough territory and I am not trying to put road blocks in anybody's way. If anything I say helps ensure we have the best available legislation and procedures, I know I will get a fair hearing. We are essentially providing immunity in law for people who in good faith report an abuse to a designated person. That is the essence of our actions in the context of this Bill; there will be further legislation.

The only personal experience I have is teaching in a school for almost 25 years. If I had a suspicion that abuse or neglect was taking place, my first port of call would be the principal's office. It may well be, in the context of the school in which I taught, that there would not have been any difficulty in this regard. Sadly, it has emerged that many abusers of children have been school principals. Are we extending immunity in this Bill to a teacher who would follow the route I would have taken by reporting to the principal's office as opposed to the gardaí? Until quite recently there was not a good response to the reporting of rape cases. This is something we must take into account when putting in place procedures we hope will work and deliver the outcome intended in the legislation.

Mr. Glynn: The comments of various speakers is a clear indication of the concern to get this legislation right. However, we must be careful when framing it to ensure the people enshrined in it as the appropriate people to whom to report, will have the ability to correctly interpret the report. In the past there has been a great reluctance on the part of the abused and members of the general public to report abuse cases. However, recent cases have focused people's minds regarding the concept of child abuse. This could be described as the silver lining behind the cloud.

Senator Quill referred to school teachers. Given the various cases that have emerged in the last number of years, it is fair to say that all categories of people have abused. This is why we must be so mindful of the situation confronting us when framing this important legislation.

[82] I would be concerned that people appointed to receive reports would not be in a position to correctly interpret them. The people referred to by the Minister should be the people designated to receive reports. I would be concerned about two categories of people in this regard — the abuser and the false accuser. If someone gets a bad reputation it is difficult to disprove it. We must give careful consideration to those to whom we give a mandate to receive reports.

The health board of which I am a member has a confidential telephone line. It is within the remit of anyone to pick up the phone and ring an appropriate person regarding a report. Twice in the last three years I received two different reports about work being carried out by the board in relation to child abuse. This concerned children who were being physically abused by their parents. I got a blow-by-blow account from the parents of what had taken place. Having listened carefully to what I heard from both occasions, I found the approach of the social workers to be absolutely correct. I would be extremely worried that we would not designate the people who are best qualified to receive reports. For example, the PRO of a youth club could have no qualifications; he or she could be the biggest lúdramán since the sliced pan.

I appreciate the comments of Senators Henry, Quill and others. However, it is imperative that we get this legislation right. I am pleased the Minister said he has listened carefully to Senators and that he will consider their comments. I compliment Senator Henry on not pressing her amendment because it is a clear indication that she wants to get this legislation right. When we discuss the Report and Final Stages of this Bill, we will all be focused in on what the Minister is trying to do. The Minister also wants to get the legislation right. The appropriate people to receive reports are those mentioned by the Minister. They are the best qualified people to interpret them and to take the correct action.

Mrs. Jackman: We are forgetting the amendment refers to “or any person deemed to be so by the Minister”. It is up to the Minister to designate the particular person, it is not the youth club who will designate the PRO. While I agree that categories of social workers within the health boards would be the appropriate people to deal with these issues, reports from the health boards indicate that these people are currently very hard pressed. Senator Henry's amendment proposes that we should give people an opportunity to come forward. Many people will not want to go that route; we are not a civic minded people. Have there been instances of people reporting from a malicious or vindictive viewpoint? On Second Stage Senator Norris gave statistics in relation to New Zealand where very few of the cases reported were of a malicious or vindictive nature. I was surprised to learn that the Scandinavian countries, New Zealand and Ireland are the only countries going down this road. I am not [83] sure of the position in Northern Ireland. We are fairly proactive in this regard and we could learn a lot from the other countries who have this immunity.

Senator Henry is asking the Minister to bear in mind that he may get many complaints from sporting organisations, GPs or the teaching profession. Up to now these people would have said they would not do so because they intend to go down the legal route and it is not worth it. It is such a sensitive area they would not want to bring a complaint against a person. Paedophiles can be very respected people in the community. In rural areas, in particular, a person can be singled out as the one who made a complaint. Senator Henry's amendment would give the Minister leeway so that people would feel free to go to the designated people.

Will health boards be in a position to react immediately to complaints? This is related to my later amendment. There may be a delay before designated officers of health boards or the Garda are in a position to act and that could give time for similar acts to be perpetrated on other children. There is so much pressure on health board workers and on the Garda in other areas that we must question how quickly they could act on an allegation of child abuse.

Is it possible for immunity to be expanded to other areas? The matter would still be dealt with by health boards and the Garda. It is a matter of granting immunity to other designated people. The Minister has the final say. Senator Henry raised the matter to give the Minister of State an opportunity to consider if there is a better way. I am aware his heart is in the right place and that this is a very sensitive area. However, we tend to forget that the legislation should be centred on the child and that we do not want to resort to the legal route. That would cost a fortune, by and large, and the Minister of State has limited funds. It is our hope that 80 per cent of the funds would be spent on the child rather than on the legal route which has been the case up to now. Our hearts are in the right place. Senator Henry is merely asking the Minister of State to consider if other people could be designated and to return on Report Stage with his decision. Perhaps the health boards and Garda would know of suitable people. We must be more creative in this area because it is so traumatic for us all.

Dr. Henry: If we all followed child abuse guidelines, there would be no need to worry because they are good. Unfortunately, this does not happen. I was taken with what Senator Quill said about teachers. I was involved in the establishment of a sexual assault unit in the Rotunda Hospital almost 15 years ago. The other doctors and I involved in its establishment thought we would be dealing with one or two adult rape victims a week. Within six weeks, we were flooded with children who had been brought in by teachers. They had been receiving these complaints [84] but they could think of nowhere to bring the children. When the unit opened, they thought they had somewhere to bring them and children of all ages were brought to the unit. We had to open two specific facilities in Temple Street and Crumlin to deal with them. Even the most intelligent people, and among those I include the teaching profession, are sometimes nonplussed as to where they should go. There was nothing preventing them from contacting the health board or social workers. However, they did not know where to bring the children.

I will not continue to discuss this matter because the Minister of State knows my views. I understand what Senator Glynn said, but I am not suggesting that PROs should be able to set themselves up as some form of social workers in youth clubs. All power rests with the Minister. We want to ensure that, if it is seen in five years' time that the necessary reporting is still not happening, he or she will be in a position to do something about it rather than having to return to the Houses of the Oireachtas. I will not press the amendment because I only want the Minister to consider it and see if he can grant this leeway for the future.

Mr. Fahey: If Senator Henry would consider how the time lapse issue might be dealt with in five years' time, I would be prepared to consider the issue in general. However, the wording of such an amendment would need to be exact so that, in a situation where a time lapse existed and the current system of reporting was not working, further officers could be designated who would not be employed by a statutory body.

The irony in what all three speakers said is that they agree with the thrust of what we are trying to achieve. Senator Henry initially asked what social workers would think of mandatory reporting. This is a small part of the wider issue of mandating people to report to which we are committed and on which we have a White Paper. It is possible that, if people were to be designated, the legislation would have to be changed in the context of mandatory reporting. All are agreed that the only people who should be mandated to report are professionals — teachers would probably be the most important. The example given by Senator Quill will be catered for in the mandatory reporting legislation under which all professionals will be mandated to report child abuse. However, ordinary people will not be covered.

I have studied countries where mandatory reporting has been introduced, and the most significant finding regarding its introduction, especially in the United States, was that it was necessary to put a great deal of resources into training professionals given the responsibility to report. It is a major problem here that many professionals, including teachers, are not trained to recognise abuse. One of the major tasks in the context of the legislation will be training professionals, such as teachers, to recognise and report abuse. In the context of mandatory [85] reporting, the amendment is going in the opposite direction because we will be mandating professionals and not ordinary individuals in clubs across the country.

Senators Jackman and Henry referred to the pressures of designated officers. They are all designated to receive a report. The child abuse guidelines include a series of new channels. Once the designated officer in the health board receives a report, it is then channelled to the child care manager who has the specific task of examining and responding to it. One thing of which we are certain and have been assured by the health boards is that, while there are pressures on health boards and waiting lists in terms of investigations, every case received is screened and any case deemed urgent is dealt with. There is no question of children being left in circumstances of continuing abuse. They are always given priority and dealt with urgently.

I accept there are delays in the introduction by the Eastern Health Board of inspection of child care facilities, but that is a separate issue. Having regard to health and safety and children's welfare, we are now implementing the child care legislation. However, it is only in the past six months that health boards started to carry out inspections because the regulations had to be introduced, but inspections are now taking place. I accept Senator Henry's point that the only excuse for their not happening earlier is that the Eastern Health Board did not have the resources in that area, which is separate from that with which we are dealing now.

I am prepared to consider the limited possibilities of an officer in a club, which could include a timescale. If Senator Henry wishes to expand on the five year time span, I could consider the matter, if it were acceptable as a compromise.

Dr. Henry: I accept the Minister of State's proposal, but I would like to talk to him later.

Mr. Fahey: Yes.

Miss Quill: I accept it and commend the Minister of State. I could not envisage a situation in any registered club with recognised structures, that is grant aided out of public funds, where officers would not be given some level of responsibility in the context of the law we are going to frame. This is the angle I have been using all the time. My motivation and information on this issue derives from the Murphy report and the awful story about a Dublin institution that was on the news this morning.

While the Minister is correct to narrow the provision to make it as effective as possible, my fear is that young people are very vulnerable. People who run clubs for children must recognise from the outset that they have to take on board huge responsibilities for their welfare. It is not enough to take in children and teach them new skills in [86] swimming and so on. They must be required by law to be responsible for their welfare and wellbeing while they are under their care. That is the least the State should seek to demand. I am pleased the Minister of State said he will see if it is possible, without in any way weakening the fabric of this Bill, to bring people who work in the voluntary sector into the designated area.

Dr. Fitzpatrick: My concern about clubs, or designated people in clubs, is that people tend to join clubs because they are of a like mind and share a common purpose, whether it is swimming, the GAA, or some other type of sport, and there is a club atmosphere. I may sound cynical and like someone who has lost faith in human nature, but I would not trust a club member to protect my child or any other child if child abuse was taking place within the confines of that club, even if I were a member. I would have more faith in a statutorily appointed civil servant because we would have some sanctions against that person if he or she failed to live up to his or her statutory obligations. I am uneasy about the route we are considering, but perhaps we can flesh out the issue on Report Stage.

Mrs. Jackman: I accept and welcome what the Minister of State said. The Murphy report identified all the risk areas for children, for example, swimming, the GAA, etc. It may be necessary to extend the legislation beyond the statutory bodies, but it is not envisaged that there will be a huge plethora of designated persons. I hope there will not be any forthcoming scandals. The legislation should give the Minister the option to afford children extra protection in areas of high risk. We do not know what will be uncovered in the future because each week there is a new scandal to shock our system. This provision will act as a safeguard. I rely on the Minister of State to glean from what will happen over the next number of years how this reporting system emerges. As a teacher I welcome what he said. Teachers have been crying out for the necessary training for a long time. It may be necessary to extend this training beyond teachers.

Senator Fitzpatrick referred to club officers. A committee of a club takes on the responsibility to run that club, not necessarily for the pursuit of excellence in the sport, they also take on the responsibility to care for the children in the club. Parents would be very pleased to know there is another arm of designated people whom they or perhaps teenage children can approach. I do not believe teenage children, who may not want to say anything to their parents, would go to a health board or the Garda Síochána. A designated person is another option for a child. We have to think through this matter and I believe the Minister will do that and come back to us to determine how it can best be achieved.

As Senator Henry stated, this provision does not apply to every youth club officer. The Minister can examine other areas where a designated [87] officer would be an easier person for a child or parents to contact. I thank the Minister of State for stating he will consider this matter.

Mr. Glynn: I defer to comments made by Senators Quill, Henry and Jackman. As I have already stated, I am concerned that designated persons would not be qualified to receive reports, interpret them correctly and take appropriate action. The adage “too many cooks spoil the broth” sums up this matter. There could be an excellent person in a club, but there could also be a head banger who would not be qualified to deal with child abuse. I accept Senators are trying to broaden the Bill to ensure as many people as possible are in a position to report child abuse. I am concerned that unqualified people could be put in a position of huge responsibility. I am not pre-empting what the Minister might do because he said he will consider the matter, but I urge caution for the reasons I have stated.

Dr. Henry: If what Senator Fitzpatrick said is true, that all people in a club are like minded and that it would be pointless contacting them because they would not report abuse, why is Minister McDaid withholding money from the Irish Amateur Swimming Association until it puts its house in order? The Minister is saying people within a club must have some sense of responsibility for what happens in a club. I would say the same to Senator Glynn.

Dr. Fitzpatrick: The Minister will discharge the fund.

Dr. Henry: I agree with the Minister. People who run clubs should have responsibility for the activities that take place within their organisations, especially when many of them receive financial, moral and ethical support from the State.

Mr. Fahey: The ethics in sport regulations are being reviewed with a view to ensuring the current difficulties are brought to an end. Again, I am prepared to consider the provision but I can see difficulties arising with regard to associations and clubs. There would still be the same problem even if we designated the chairman of a club. The chairman would then have to decide whether to adjudicate himself or automatically approach the health board. Would it be acceptable that we would try to amend the legislation to allow for a person informing the chairman and going to the health board?

Dr. Henry: Absolutely people have a sense of moral responsibility. The appointments do not have to be made now. Everything is all working so that people get on to the health boards at once. That is terrific. The child abuse guidelines are very good. Would that all of us kept them in mind but, unfortunately, that does not happen. When a person knows that if they receive a complaint they [88] must get on to the health board, they will not sit around adjudicating on it themselves. They should get on to the health board or the Garda. Senators Quill and Jackman have the same thing in mind. They should not set themselves up as a private social work board.

Mrs. Jackman: No.

Dr. Henry: That would be totally unsuitable. This provision is to ensure that the system is not too remote from the people and that people will not feel an incident is not serious enough to report. If they feel they should say something there should be someone adjacent to them to go to. This provision may be badly needed.

Amendment, by leave, withdrawn.

Government amendment No. 2:

In page 3, between lines 31 and 32, to insert the following definition:

‘“the Minister’ means the Minister for Health and Children;”.

Mr. Fahey: I am prepared to consider this. If I understood correctly what the Senator said, I am to come back with an amendment which leaves the onus on anybody who wants to report to the statutory authority.

Mrs. Jackman: Yes.

Mr. Fahey: We will add that they must also inform the chairman of the club or organisation. Am I clear?

Dr. Henry: Absolutely.

Mr. Fahey: May I also deal for a moment with Senator Jackman's amendment, although we have not come to it. Her amendment proposes that the committee of a club should consider the matter. If that is the case, is she happy that will not happen and will not be necessary?

Miss Quill: It is exactly what the Minister of State has agreed to.

An Leas-Chathaoirleach: We are discussing amendment No. 2.

Mr. Fahey: Will you allow us to discuss it?

Miss Quill: The amendments are interconnected.

An Leas-Chathaoirleach: It is not being discussed with amendment No. 2. Can we agree to section 1?

Miss Quill: What the Minister of State has now offered anticipates it.

[89] An Leas-Chathaoirleach: When we get to amendment No. 4 we can hear from Senator Jackman.

Mr. Fahey: May I clarify that in the event of our compromising on this matter, amendment No. 4 would fall? Subsection (2) of amendment No. 4 states that “a meeting of the governing body or relevant committee, whichever is the case, shall forthwith be convened. …”. We are not interested in getting into that. If Senator Jackman is happy to drop that amendment I will certainly look at the compromise of reporting, as the Bill provides, to the designated officers in the statutory authorities and also reporting to the chairman of the club.

Mr. Gallagher: I do not want to anticipate the amendment, but if we are making it a condition that somebody must also report it to the chairman of the club, we would want to look at that. What happens if the chairman of the club is the alleged abuser?

Mr. Glynn: That is the point I was going to make.

Mr. Gallagher: I know the Minister of State is trying to respond in a genuine sense to the points that have been raised and we will have a chance to discuss it on Report Stage. However, if the Minister of State is saying that we will have an agreed system whereby one reports it to an appropriate person in the Garda or the health board, and one also reports it to the chairman of the club, the difficulty is that the chairman of the club could be the alleged abuser. I do not know whether one should have a double condition that one must report it to A and B. There would be a difficulty if the person to whom one was supposed to report in the club was the alleged abuser.

Dr. Henry: One would be a lunatic to consider that. One would have to go to the health board immediately.

Mr. Gallagher: I am trying to clarify what is intended in the Minister of State's response. I understood him to say that one would report it to the appropriate person in the health board or the Garda, and one would also report it to the club. If there are two such conditions we will have less reporting rather than more.

Mr. Fahey: If we were to try to agree an amendment like this, the point is that the chairperson of the club would automatically have to go to the statutory authorities as well. To an extent our main thrust is covered in that we want everybody to go to the statutory authorities. However, to accommodate the requirement that the club chairman or designated officer would be informed, obviously, the onus would be on the club's designated officer to also confirm the report to the statutory authority.

[90] Miss Quill: That is the procedure we are agreeing.

Mr. Gallagher: Are we saying that the person who has concerns must report it both to the health board and the club?

Mr. Fahey: Yes.

Mr. Gallagher: If I had a suspicion and reported it to the health board my responsibility would not be discharged unless I also reported it to the club. Is that what we are saying?

Mr. Fahey: That is the thrust of the amendment proposed which I am prepared to consider.

Mr. Gallagher: If it is coming up on Report Stage we will have a chance to discuss it again. However, there may be circumstances where it would be in order for somebody to report it to the health board, but for reasons of their own, there should not be a further condition on them to report it to the club also.

Dr. Henry: I had certainly not envisaged that it would be a further condition that they had to report it to the club, it is not.

Miss Quill: No, it is not.

Mr. Glynn: Absolutely.

Dr. Henry: Of course the designated person might be the person who is the problem, as indeed a health board worker or a garda could be, if they were the designated people. We could not have a situation where a person had to go through somebody they suspected.

Mr. Fahey: It would not be a condition but we would insert a clause that they would report to the club chairman.

An Leas-Chathaoirleach: I am sure these matters can be discussed on Report Stage.

Dr. Henry: You have been very generous with this matter, a Leas-Chathaoirligh.

Amendment agreed to.

Section 1, as amended, agreed to.

SECTION 2.

Government amendment No. 3:

In page 4, lines 5 to 8, to delete subsection (1) and substitute the following subsections:

“(1) The chief executive officer of each health board shall—

(a) immediately upon the commencement of this Act, and

(b) thereafter from time to time as occasion may require (including a case in [91] which a direction is given under this section),

appoint one or more officers of the board to be a designated officer or designated officers for the purposes of this Act; in making any such appointment the chief executive officer shall comply with any direction under this section for the time being in force.

(2) The Minister may give a direction in writing to the chief executive officer of a health board requiring him or her to appoint to be designated officers each person falling within a category or categories of officer of the board specified in the direction.

(3) The Minister may give a direction in writing to the chief executive officer concerned amending or revoking a direction given to him or her under this section (including a direction under this subsection).”.

An Leas-Chathaoirleach: This amendment has already been discussed with amendment No. 1.

Mr. Fahey: To clarify this, it is not that we are agreeing to amendment No. 1, but we are agreeing to come back to it on Report Stage. Senator Henry has not pressed the amendment.

An Leas-Chathaoirleach: Amendment No. 1 has been withdrawn and amendment No. 2 has been agreed to. The Minister of State is promising to come back to the matter on Report Stage.

Miss Quill: That is it.

Mr. Fahey: That is on amendment No. 1.

An Leas-Chathaoirleach: That is on amendment No. 1, yes. Amendment No. 2 has been agreed to.

Mr. Fahey: And amendment No. 12.

An Leas-Chathaoirleach: We have not reached amendment No. 12 yet.

Mrs. Jackman: I asked for clarification of the difference between “may give a direction” apropos the issuing of guidelines. Will the Minister of State clarify how strong is the phrase “may give a direction”?

Mr. Fahey: I intended to give directions under this section. The Senator will agree it would be far stronger and would carry much more force to give directions rather than guidelines. I intend to give directions to the health boards in regard to designated officers.

Mrs. Jackman: Could the Minister of State have inserted the stronger wording that “the Minister shall give a direction”? That would be [92] stronger than saying “may give a direction”. Would it give the Minister the discretion that he may or may not give a direction?

Dr. Fitzpatrick: If one substitutes “shall” for “may”, does one not take away the Minister's discretion?

Mrs. Jackman: I would expect the Minister of State would say it is stronger. The previous amendment, which was not taken in the Dáil, said “shall issue guidelines”. That wording is very strong. Under the terms of the Bill the Minister has to “give a direction in writing to the chief executive officer of a health board requiring him or her to appoint to be designated officers. . . “. The word “may” does not appear in that section. The Minister told us he will appoint designated officers. Could the word “shall” not be used?

Mr. Fahey: The word “shall” presents the legal difficulty that if a person is designated he cannot subsequently be undesignated. I assure the Senator that the phrase “may give a direction” means that we intend to give directions under this section. There will be no ambiguity. We have already named the people whom we intend to designate and there will be others. I am satisfied that the word “may” is adequate.

Amendment agreed to.

Section 2, as amended, agreed to.

Section 3 agreed to.

NEW SECTION.

Mrs. Jackman: I move amendment No. 4:

In page 4, before section 4, to insert the following new section:

“4.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication whether in writing or otherwise, by him or her to a member or members of the governing body of a sport or of the committee of a sports club of his or her opinion that a child has been or is being assaulted, ill-treated or sexually abused by a member of or an employee of such governing body or sports club unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and so communicating it.

(2) Where a report as described in subsection (1) of this section is made, a meeting of the governing body or relevant committee, whichever is the case, shall forthwith be convened and if the committee finds that there are grounds for the complaint, it shall immediately furnish the details of the complaint to a designated officer of a health board and/or a member of the Garda Síochána [93] and the complainant shall be advised of the finding of the committee and the action, if any, taken or to be taken by it as shall the person in respect of whom the complaint is made.

(3) The action taken as referred to in subsection (2) of this section may include amongst other things the suspension from sporting, coaching and training activities of the person in respect of whom a complaint is made and the governing body or relevant committee which suspends any person following receipt of a communication to which subsection (1) of this section applies shall not be liable in damages to such person for so doing if it is proved that it acted reasonably and in good faith in taking such action.

(4) The reference in subsections (1) and (3) of this section to liability in damages should be construed as including a reference to liability to be the subject of an order for any other form of relief.”.

An amendment identical to this was moved in Dáil Éireann by Deputy Shatter. The Murphy report pointed out that a child might be at risk if his or her parents made a complaint to the officers of a sports club. The amendment would ensure immunity from prosecution to children and parents in such a situation. A person who makes such a complaint reasonably and in good faith should not be liable for damages or prosecution. The amendment also calls for an immediate meeting of the governing body of a sports club and, if there are grounds for the complaint, for the governing body to inform the Garda Síochána or a designated officer of a health board. Does the Minister have difficulty accepting these proposals?

Mr. Fahey: I will take account of Senator Jackman's concerns and in the light of what I have agreed, the Government will table an amendment on Report Stage.

Mrs. Jackman: I am happy with the Minister's assurance and I will not press the amendment. I know the Minister is aware of the recommendations of the Murphy report and I hope the issues are dealt with and these extra safeguards put in place. The officers of sports clubs must ensure that the children under their care are protected.

Mr. Gallagher: I look forward to the Minister's amendment on Report Stage. I foresee a difficulty defining the elements in the voluntary sector which will be affected by the amendment. The problem is not confined to sports clubs.

[94] Amendment, by leave, withdrawn.

SECTION 4.

Mr. Gallagher: I move amendment No. 5:

In page 4, subsection (1), line 26, to delete “An” and substitute “It shall be a term of an employee's contract of employment that an”.

The amendment relates to section 4 which gives protection from penalisation to employees who have reported child abuse. It makes it clear that an employer cannot penalise an employee for doing his or her duty in reporting child abuse. The purpose of the amendment is to state that it shall be a term of an employee's contract of employment that he or she shall not be penalised for making a report as provided for by this legislation. It makes clear that the prohibition on penalising workers in those circumstances will be an implied term of an employment contract similar to the implied term relating to discrimination on grounds of gender. The inclusion of the provisions of section 4(1) in a contract of employment will give a rationale for involving the labour law mechanisms in a case of the reporting of child abuse. This will strengthen the assurance to employees that they will not suffer through reporting child abuse because they will have the complete protection of labour law.

Mr. Fahey: The section, as drafted, provides a statutory protection for a concerned employee from penalisation by his or her employer for having formed an opinion of the kind referred to in section 3 and for having communicated it to an appropriate person if the employee concerned acted reasonably and in good faith in so doing. This statutory protection is considered adequate and in line with the approach adopted in other employment protection legislation. Therefore, I am not prepared to accept the amendment.

Mr. Gallagher: I am disappointed to hear the Minister's response because we need to give as much assurance as possible to those who may report alleged cases of abuse. By stating that it would be an implied term of the contract of employment that they could not be penalised for making such a report in good faith we would give employees such assurance and would state clearly that the corpus of labour law and labour law mechanisms can be invoked in their defence and protection.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach: Amendments Nos. 6, 7 and 8 are related and may be discussed together.

Government amendment No. 6:

In page 5, subsection (6)(a)(i), line 28, to delete “6” and substitute “12”.

[95] These are three technical amendments which clarify that the period for making a complaint to the rights commissioner under section 4 of the Bill shall be an initial 12 month time limit from the date of contravention, as appropriate, followed by an extension of a further six months where the rights commissioner is satisfied that exceptional circumstances have prevented the presentation of the complaint within the period aforementioned. Accordingly, a total time limit of 18 months is proposed in paragraph (i) and not six plus 12 as is inadvertenty described in the text of the Bill.

Amendment agreed to.

Government amendment No. 7:

In page 5 subsection 6(a)(i), line 33, to delete “12” and substitute “6”.

Amendment agreed to.

Government amendment No 8:

In page 5, subsection 6(a)(i), line 34, to delete “6” and substitute “12”.

Amendment agreed to.

Mr. Gallagher: I move amendment No. 9:

In page 5, subsection (6)(b), line 40, to delete “to 10” and substitute “and 9”.

This amendment relates to sections 8 and 9 of the 1994 Act, not section 10 because section 10 is unconstitutional. That arises because section 10 provides for proof of offences by means of a certificate rather than oral evidence. Under the judgment of the Supreme Court on the Employment Equality Bill, 1996, this is unconstitutional. The court struck down a similar section in that Bill.

Mr. Fahey: The amendment proposes the deletion from section 4(6) of the reference to section 10 of the Terms of Employment (Information) Act, 1994. That provision provides that in the prosecution of a person for failure to attend before or refusal to give evidence or produce documents to an employment appeals tribunal, a document signed by the chairman or the vice-chairman of the tribunal detailing such a failure or refusal shall be accepted as evidence of the matter so stated without further proof. I see no justification for the amendment and I am not prepared to accept it.

Mr. Gallagher: Given the Supreme Court decision on the Employment Equality Bill, it is important that this matter is re-examined. I will withdraw the amendment now but I will return to it on Report Stage.

Amendment, by leave, withdrawn.

[96] An Leas-Chathaoirleach: Amendments Nos. 10 and 11 are out of order.

Amendments Nos. 10 and 11 not moved.

Government amendment No. 12:

In page 6, subsection (7), line 12, to delete “for Health and Children”.

Amendment agreed to.

An Leas-Chathaoirleach: Amendment No. 14 is an alternative to amendment No. 13. Amendments Nos. 13 and 14 can be discussed together. Is that agreed? Agreed.

Government amendment No. 13:

In page 6, lines 34 to 36, to delete subsection (3) and substitute the following new subsections:

“(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 2 years from the date on which the offence was committed or, if later, 2 years from the date on which evidence that, in the opinion of the person by whom the proceedings are brought, is sufficient to justify the bringing of the proceedings comes to that person's knowledge.

(4) For the purposes of subsection (3) of this section, a certificate signed by or on behalf of the person bringing the proceedings as to the date on which the evidence referred to in that subsection relating to the offence concerned came to his or her knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate.”.

Mr. Fahey: I welcome the broad acceptance by Senators of the new offence of false reporting of child abuse which I have introduced.

Amendment No. 13 refers to the length of time available for the institution of summary proceedings regarding a person who alleges that they have been the victim of a false or malicious report of child abuse. At present, the Bill provides that such proceedings should be instituted within 12 months from the date of the offence.

I listened carefully to the comments of Senator Norris on this issue last week and I appreciate the intention behind amendment No. 14. However, the amendment is flawed. It refers to the appropriate person having sufficient reason to believe that the statement was false. The term “appropriate person” has particular meaning under this Bill. It refers to designated officers of the health board in a broad range of categories of staff and [97] members of the Garda Síochána. These are the persons to whom reports are to be channeled initially so the reporter may enjoy the immunity provided under the Bill. They are not, in the majority of cases, the persons who will direct the investigation assessment of allegations and, therefore, would not be in a position, nor would they want to be in a position, to decide on the validity of a person's motives in making a report of child abuse.

The intention is to ensure that the widest possible grouping of health professionals is available for the purposes of receiving reports of child abuse. People who report child abuse to those individuals will enjoy the benefits of immunity offered by this Bill. The designated officers will pass the reports to the relevant responsible official in the health board. In most, if not all, health boards this person will be the child care manager.

I am advised that it is standard practice to have a time limit for the bringing of summary proceedings. This reflects the principle that summary offences should be disposed of speedily within a reasonable time after their alleged commission. The defendant in a summary prosecution has a right to expect that the matter will be pursued with reasonable expedition. Otherwise, it would be hard for a defendant to meet a case properly. Delays can lead to a defendant's summary proceedings being unfairly prejudiced in making a defence, and natural justice may require that a summons be dismissed. Irrespective of statutory time limits, the prosecution can be open to criticism by the courts for deliberately or neglectedly delaying the commencement of summary proceedings.

However, I welcome the intention of amendment No. 14 and I am pleased to bring forward my own proposal, amendment No. 13, which will meet the concerns of the House. Section 5(3) if amended will allow for a period of two years from the date on which the offence was committed or, if later, two years from the date on which evidence that, in the opinion of the complainant, is sufficient to justify the bringing of the proceedings comes to that person's knowledge.

In layman's terms, section 5(4) will allow for a certificate to be produced by the complainant to the effect that evidence came to his or her knowledge at a particular time and that this evidence is accepted by the courts. The amendment meets the concerns of Senators and I am happy to commend it to the House.

Mr. Gallagher: I welcomed this section on Second Stage and I welcome the Minister of State's response to that debate. I and my colleagues were concerned that the 12 month time limit as originally included might prevent the legislation being used in the majority of cases of malicious reporting that might arise since cases can take up to three years to be investigated by the health board.

[98] Amendment No. 14 was put down to ensure that this issue would be addressed. I do not understand the Minister of State's amendment. It was explained to me twice by a lawyer and I still do not understand it. It is written in strictly legal terminology. I have doubts about how the evidence by way of certificate might stand up if challenged in court. However, I accept the Minister of State's good intentions and assurances in that regard.

Amendment agreed to.

Section 4, as amended, agreed to.

SECTION 5.

Amendment No. 14 not moved.

Section 5 agreed to.

Sections 6 and 7 agreed to.

Title agreed to.

Bill reported with amendments.

Report Stage ordered for Tuesday, 17 November 1998.