Seanad Éireann - Volume 162 - 27 January, 2000
Statute of Limitations (Amendment) Bill, 1998: Second Stage.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: As this is a Private Members' Bill from the Dáil, I call Senator O'Meara as the first speaker.
Ms O'Meara Ms O'Meara
Ms O'Meara: I move: “That the Bill be now read a Second Time.”
This is a unique occasion and I am very proud and privileged to move a Labour Party Private Members' Bill in Seanad Éireann in Government time. The Bill was debated in the Dáil after it was moved by my colleague, Deputy O'Sullivan. I thank the Minister for accepting the Bill in principle. Important amendments have been already discussed and some were accepted in the other House. Other important amendments remain to be made and I look forward to Committee Stage when they can be debated in detail. I hope the House can add constructively to the legislation.
The Bill seeks to correct an injustice done to a group who, all Members would agree, have already suffered horrendous injustice. As children, these people were subjected to physical and sexual abuse and were effectively disbarred from seeking legal redress because of the current Statute of Limitations Act which effectively gives them only up to the age of 21 to initiate a legal action against the offenders. The fact that the Bill has been accepted in principle by all parties proves there is a widespread consensus that the balance in the legal system needs to be tipped to ensure that justice is available to this most sinned against group in the community.
Over the past years our society has finally begun to lift the veil of silence which kept the  whole issue of the physical and sexual abuse of children hidden and secret. The horrendous stories of abuse in the past decades and in more recent years have shocked us to the core as a society and forced us to face up to some harsh realities.
We have begun to learn about where power has resided in Ireland, the nature of power and how it has been exercised. In particular we have learned how power has been abused. We now know the power of the church, the State, and authoritarian parents has been used to physically and sexually abuse children and to allow it to continue and, effectively, to protect those who have been responsible, while victims continued to suffer in silence and were not believed. They simply had nowhere to go.
This Bill seeks to give victims an extension of the right which currently exists to take legal action on the basis that it is not tolerable that people should effectively be debarred once they have reached the age of 21 from taking such legal action. The Bill has its roots in the Sophia McColgan case. This case involves the action taken by Ms McColgan and her siblings against the North-Western Health Board and a general practitioner for their failure to act when evidence of severe abuse of these children over a number of years was presented to them. The children took the case as adults. Ms McColgan had allowed more than three years to elapse after her 18th birthday before initiating the action. At that time the health board claimed she was statute barred since the existing Statute of Limitations Act only allows an action to be taken within three years of the occurrence of the act being complained about. Since the case was settled out of court no legal judgment, which might have lit our way on this matter, or legal precedent is available.
The Bill seeks to remedy the situation. It seeks to accommodate cases of childhood abuse by extending the definition of what is known in this context as a disability during which time the clock does not run on the statute of limitations. Being under a disability in this context generally means the plaintiff is under 18, of unsound mind and, therefore, unable to take a case. By extending the definition of “disability” the Bill provides that a person can be regarded as having been under a disability by virtue of the severe emotional or mental injury suffered and attributable to the acts complained of, that is, physical or sexual abuse. In other words, they had been so assaulted as to be considered unable to make a decision to take such an action. This is a reasonable position.
Ms McColgan relates in her excellent book on the experience written by Susan McHale that she was unable to confront her father until such time as she had built a life for herself, got a degree and gained a measure of self-belief and self-confidence. It is not unbelievable that a person would be so traumatised and damaged by the experience of childhood abuse as to be unable for many years to confront it sufficiently to take a legal  action. While Ms McColgan was in her twenties when she initiated the action others could be in their forties, fifties or older before being in a position to confront the offender and come to terms with what had taken place in their childhood. Sophia McColgan's is not the only case.
My colleague, Deputy O'Sullivan, who introduced the Bill in the Dáil told the House that the Minister for Education and Science, in reply to a parliamentary question, had told her that 145 cases relating to his Department, involving allegations of sexual or other physical abuse of children in State-run or State-supported institutions, have been initiated. This was in the middle of last year. In February, 1999, Magill estimated that 560 victims were suing the State and the Catholic Church. The Artane boys' school case which has come to light recently is enormous and adds to a long list, including the Kilkenny incest case, Brendan Smyth, Ivan Payne, Donal Dunne etc. There will be more.
We are witnessing what I and many others would consider to be one of the most painful periods in our history in that we are coming to terms with a heinous breach of trust by a number of people, entrusted by the wider community with the care of children. It is necessary for us as a community to confront what happened in the past, to make proper reparation to victims and to ensure it does not happen again.
In the past number of years we have heard unbelievable stories of cruelty, trauma, abuse and torture of children, many of them in the care of institutions run or funded by the State. The Government's response in the establishment of a commission on childhood abuse goes some way towards tipping the balance in favour of victims as well as constructing a mechanism whereby victims will be heard and facts investigated, particularly allegations of systematic abuse in institutions run or funded by the State. This is essential. I note this morning's newspaper reports that the Government intends to take a new approach in this commission by establishing a two-stranded approach, one which would investigate facts and make findings and the other which would allow victims to speak. There is some merit in this approach but a number of issues remain to be answered in relation to this commission and investigation. One is the discovery of documents and the release to victims of information, particularly that held by educational establishments and former educational establishments, in the context of this commission. The issue of legal representation remains but we shall discuss that at another time.
This Bill forms part of the wider community response that we must make to ensure that for victims justice is not only done but is seen to be done. The Bill has been debated extensively in Dáil Éireann by our colleagues there and a number of amendments have been put forward, some by my colleague Deputy O'Sullivan, and debated, in response to concerns raised by victims while the debate was taking place. Given that some  matters have not been satisfactorily dealt with we will table new amendments on Committee State in an effort to make the Bill as comprehensive as possible. I would point to the need to include physical abuse in the terms of the Bill, on which we shall have an extensive debate. There is also the question of ensuring that the victims of childhood abuse have access to the legal system, in other words, that people who have already visited a solicitor or Garda station on the matter of childhood abuse, with a view to initiating an action, may be considered able under the law and, therefore, covered by the terms of this Bill. This is just one aspect that has emerged and which will be the subject of amendments to be tabled on Committee Stage. The Minister told the Dáil before Christmas he would come to the Seanad and consider a number of issues raised there. I look forward to the Minister's response today.
I pay tribute to the work done on this Bill by the Labour Party's legal advisers, Finbar O'Malley and Richard Humphries, and thank them for their support and advice to us in bringing it forward and as it goes through the House. I thank also a number of visitors in the Gallery who have a particular interest in this issue and have come forward to debate the matters contained in the Bill. I thank them for their enlightenment, tenacity and courage in bringing forward their own experiences and uncovering that dark episode in our history to ensure there is justice and accountability. They are doing a great service and we should be grateful to them.
Mr. O'Donoghue Mr. O'Donoghue
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I am pleased to have the opportunity in this House to demonstrate the Government's support for this important Bill. It is significant legislation for victims of childhood sexual abuse as it will give to many, who might otherwise have been unable to do so, an opportunity to take civil proceedings in the courts to establish liability and seek recompense for the wrongs done to them.
I again commend Deputy O'Sullivan of the Labour Party for her initiative in promoting this Bill in the Dáil and I take this opportunity of reiterating to Senator O'Meara, who leads on the Bill in this House, the Government's continuing support for the Bill and our commitment to ensuring it makes its way on to the Statute Book without delay.
The Bill, as initiated, has undergone a certain reworking on the basis of amendments agreed on Committee Stage in the Dáil and the work involved has, I suggest, benefited the Bill considerably. I do not propose to dwell on the various amendments as such because they largely are no longer an issue unless, of course, some Senators were to suggest otherwise, but I will address certain of the principles involved with a view, hopefully, to informing further debate in the House.
 The provisions in the Bill are of a kind which formed a significant element of the comprehensive package of measures which the Government announced a while ago to tackle the issue of past childhood abuse. In order to put the Bill's proposals into context I should like to remind Senators of the more salient features of that package, as announced by the Taoiseach in May last. These include an apology on behalf of the State to the victims of child abuse, the setting up of a commission to inquire into childhood abuse, expansion nationwide of the counselling services available to assist victims of child abuse, the preparation of a White Paper on the mandatory reporting of child abuse, priority advancement of legislation to include a register of sex offenders, amendment of the limitation laws as they relate to civil actions based on childhood sexual abuse and the referral of the question of limitation in other forms of childhood abuse to the Law Reform Commission.
The unreserved apology made by the Taoiseach on behalf of the State was an important starting point in addressing the wrongs of the past. There was general agreement that this was an appropriate response for the State to make to those who have suffered in childhood; indeed, it was a response with which spokespersons across the political spectrum have associated themselves.
The Government has been actively progressing the measures announced by the Taoiseach, which represent the considered and proactive policy of the Government in this area. It would be useful if I briefly outlined to Senators the latest developments in the implementation of these measures which fall broadly into two types: steps designed to deal with abuse which has occurred in the past and others aimed at limiting the scope for such abuses into the future.
The Commission to Inquire into Childhood Abuse, which is chaired by Ms Justice Laffoy of the High Court, has produced two reports on its terms of reference and the powers and protections it requires to carry out its work generally. Following the consideration of these reports, the Government decided to bring forward legislation in order to confer the necessary powers and protections so that the commission can carry out its work as effectively as possible. The drafting of this legislation is at an advanced stage and the Minister for Education and Science will bring the text of a Bill to the Government for approval in the very near future. Rather than discuss the contents of that legislation in a speculative manner, I think it will be accepted that it would be best if we were to wait to see the full text of the legislation before commenting in any detail on it. The commission sittings will provide an opportunity in which victims can tell of the abuse they suffered to a sympathetic and expert forum. It will also provide as complete a picture as possible of the causes, nature and extent of abuse suffered by children in institutions and other places.
 The health boards, under the aegis of Minister for Health and Children, are co-ordinating the work of expanding the counselling service for the victims of child abuse available in each health board area with the aid of annual funding of £4 million from the Exchequer and recruitment of additional highly skilled staff to boost these services is under way at present.
The White Paper on Mandatory Reporting of Child Abuse is in the process of being drafted and an interdepartmental advisory group is in place to assist in this work.
The Department of Health and Children is co-ordinating the work on developing the national children's strategy. Deputy Frank Fahey, the former Minister of State with cross-departmental responsibility for children, recently invited submissions to contribute to the strategy; the closing date for such submissions is 11 February next. The strategy will map out a direction for the next ten years through a set of realisable goals which will address all aspects of the child and young person. It will promote the best interests of children and young people, reflecting the provisions of the UN Convention on the Rights of the Child.
As Senators may be aware, I published a discussion paper on the law of sexual offences in May 1998. Much of the paper deals with offences against children and I have recently published the Sex Offenders Bill, 2000, as my initial response to the proposals in that paper. This Bill provides for a major package of innovative reforms to protect the public against sex offenders, including a new notification procedure or tracking system for all convicted sex offenders, a requirement which will also extend to any sex offenders entering this jurisdiction from abroad; a system of sex offenders orders, to be issued by the civil courts, to deal with instances where the behaviour of a convicted sex offender gives cause for concern that an order is necessary to protect the public from serious harm; a new system of post-release supervision for sex offenders released from prison; separate legal representation in rape and other serious sexual assault cases in certain circumstances and new requirements for sex offenders when seeking employment where unsupervised access to children is involved. I consider the provisions of that Bill to be of special benefit in safeguarding society, and particularly children, now and into the future against the risk of sexual abuse.
In particular, the new offence relating to employment is designed to reduce the risk of unsuitable people obtaining access to children through the workplace. Such legislative sanctions, by themselves, will not be sufficient to remove these risks. There will continue to be a particular onus on employers to maintain good employment practice, both during the recruitment stage – for example, good interviewing practice, checking references, etc. – and also when it comes to ensuring adequate post-recruitment supervision arrangements.
 In the context of the employment of sex offenders, there are already arrangements in place since 1994 whereby the Garda authorities carry out clearance checks in respect of full-time prospective employees in the health care area who would have substantial access to children or vulnerable individuals. These arrangements, which were introduced by my predecessor at that time at the request of the then Department of Health in response to allegations of abuse of children in residential child care centres, are implemented by the Garda authorities in strict adherence to legal advice received in the matter from the Attorney General. It is my wish to have the Sex Offenders Bill in force as early as possible.
That, then, is the context in which the Government supports the Bill before the House. It is a key aspect of the considerable body of work which now underpins the package of measures that are in train to deal with past and future child abuse.
In our jurisdiction, the Statute of Limitations Act, 1957, is the basis for the law on limitation of civil actions in personal injuries actions. Only one significant amendment has been made to that statute since 1957, that is, the Statute of Limitations (Amendment) Act, 1991. It is no harm to look in a little detail at the 1991 provision since the changes being brought about by this Bill are comparable in certain respects with the 1991 amendment. Up to that point, the position was that a person had three years from the date of accrual of a cause of action for personal injuries based on negligence, nuisance or breach of duty within which to commence proceedings. That three year period does not start to run during any period where the person is under a disability. Section 48 of the 1957 Act specifies that a person is under a disability while not of full age or while of unsound mind.
The significant change brought about by the 1991 amending Act was to introduce the concept of “discoverability” to limitation law as it relates to personal injuries cases based on negligence, nuisance or breach of duty. The effect of this is that if an injured party does not know that he or she has been injured by the wrongful act or omission in question at the time it occurred, the three year period does not begin to run until such time as the person discovers, or could reasonably have discovered, the injury.
The 1991 amendment was made on the basis of a report on the matter by the Law Reform Commission. That report analysed the approaches to the question of discoverability taken in other jurisdictions as well as the framework of Irish law, both constitutional and statutory, into which such a change would have to be integrated before arriving at a detailed and technically complex set of recommendations for amendment of the law. Among its recommendations, given effect to in the 1991 legislation, was that the new discoverability rule should apply to all causes of  action whether they accrue before or after the commencement of the legislation.
The Law Reform Commission has also recently produced a consultation paper on another aspect of limitation law, that is, the law as it should apply to latent non-personal damage arising out of professional negligence. This would cover such matters as negligent surveying of a building where defects may not become apparent to the occupier for years, or defective legal advice given to a purchaser on the title to a property which may not emerge until that person goes to sell the property on.
The Bill recognises the serious trauma which acts of sexual abuse committed against children can have, often long into adult life, trauma which can prevent the victim from seeking help or redress for the abuse suffered. The psychological disability engendered in the victim by the abuse means that the normal limitation period for the taking of a civil action against those responsible is often long spent before the victim can contemplate taking steps to overcome the after-effects of the abusive conduct. Such persons cannot benefit from the “date of knowledge” provisions of the 1991 amending Act. They are all too keenly aware of the nature of the wrong done to them, and it is this very knowledge which causes the feelings of guilt and self-blame and gives rise to the disability hindering them from seeking the help which they need.
By treating such a person as being under a legal disability for the purposes of bringing a civil action, the Bill will enable many, who hitherto could not seek redress in the civil courts against their abusers or those responsible for the acts of their abusers, to embark on court proceedings.
The Bill as it stands applies to civil actions where the cause of action includes acts of sexual abuse. There is clearly an unanswerable case for this reform of limitation law as it applies to sex abuse cases. This is not to suggest that the issues surrounding other forms of abuse in childhood are regarded by the Government as being less serious or of less significance. I am very aware from representations made and from having heard, at first hand, the harrowing stories of some of those whom I have met, how such abuse has blighted many lives, leaving emotional as well as physical scars. I want to assure such people and this House that neither I nor the Government seek to neglect their position or to exclude them in any manner.
The issues in relation to other forms of abuse, however, are not quite so clear-cut as they are in relation to sex cases. There are questions arising from the wide range of activities which at one end of the scale would have been classed until not too long ago as reasonable corporal punishment, and which at the other end of the scale are by any standard unacceptable, but may not affect the ability of a person to take legal proceedings in a given time. The Government needs to obtain the advice of experts on whether and to what extent  other forms of abuse are likely to have an inhibiting effect on the victim long into adult life.
Some other jurisdictions have modified their laws in respect of sexual abuse in childhood but not in relation to other forms of childhood abuse. Research needs to be undertaken into the position in a wide range of other jurisdictions so that we can benefit from the experiences of those states that have taken a wider or a narrower approach to the issue of limitation periods for various forms of childhood abuse; understand why different approaches have been taken in different countries; and apply the most appropriate reasoning gleaned from that research to whatever changes we should make in our own law.
It is because the issues in the non-sexual abuse of children are not clear-cut that the Attorney General, at the request of the Government, referred the matter to the Law Reform Commission. The purpose of that referral is to have the benefit of the commission's research facilities, their well-established consultative processes and most importantly their independent and considered advice as to the way forward in this area of the law. I understand that the commission's researches are well under way and that they envisage publishing a consultation paper on the matter in the near future.
I am aware of arguments made that, by referring the matter of non-sex abuse cases to the Law Reform Commission, the Government is in some way rowing back on the commitments given last May. I have also seen and heard attributions of motivation for this referral which are, at best, inventive. Let me say here and now, as I have said before, that there is only one reason for seeking the Law Reform Commission's advice on this matter, and that is to have the best possible advice available to inform legislative change in this difficult area. It does not make sense to pre-empt the advice sought by going ahead with legislation to deal with such cases. Before we can decide what changes should be made, the Government must know how best those changes should be achieved, and I suggest that the Oireachtas should also be in the same position. It would not necessarily make for enlightened law-making to provide, in effect, that a civil action grounded on assault should automatically, and without qualification, be distinguished from all other forms of actionable loss or personal injury which might have occurred before a person's eighteenth birthday.
I have given repeated assurances elsewhere that I will act on the commission's report in a prompt and pro-active manner. I repeat that assurance in this House.
This Bill, as originally introduced, would have applied the new disability principle only to instances of child abuse occurring after the passage of the Bill. As the text of the Bill now stands, following Government amendments accepted by the Dáil, the disability principle will apply to all cases of child abuse, whether before or after the passage of the Bill. This approach is modelled on  the recommendation on the issue of retrospectivity recommended by the Law Reform Commission, and given effect in the 1991 legislation, regarding the application of the “date of knowledge” principle. This approach is consonant with legal principle in that it puts all those who shared the disability caused by childhood sex abuse, after the introduction of that concept into law, on the same footing.
Concerns have been expressed by groups representing those who have experienced abuse in childhood in the past that victims who have already overcome the disability which would have prevented them from taking steps to institute civil proceedings against those responsible for the sex abuse and for whom, by any measure, the three-year limitation period expired before the change in the law now proposed will be unable to benefit from that change. This question of whether the Bill should operate in a more retrospective fashion than that already catered for in the current text involves difficult issues of legal principle.
I am considering these questions in more detail in consultation with the Attorney General. Those consultations are going on at present. Any proposals I may have as a result of those discussions will be brought forward on Committee Stage.
This is a Bill which is worthy of support and which, most importantly, will be of real benefit to many victims of child abuse. The Government is happy to support the provisions of the Bill.
Mrs. Taylor-Quinn Mrs. Taylor-Quinn
Mrs. Taylor-Quinn: I compliment Deputy Jan O'Sullivan on having introduced this Bill in the Dáil. The legislation is commendable, although long overdue. All parties have been somewhat negligent about this matter over the years and they must take responsibility for that. Because of the sensitivity of the issue involved, for many years people were unable to cope and did not want to know about it. That was most unfortunate. The reports on television brought home the stark reality of the terrible events that children suffered in industrial schools and other institutions across the country. Public opinion then forced the political system to take a much more pro-active position on the awful problem of child abuse which existed and, let us not be under any illusions, continues to exist. We are inclined to talk about what happened in the past but we must also be very aware that this is continuing in some places. Structures must be put in place to protect children at all levels. Abuse has occurred in families and in places where people were acting in loco parentis such as institutions, schools, places of recreation and so on.
It takes courage for politicians and Governments to introduce the legislation which is so urgently required. I am disappointed at the Minister's repeated references to the need to refer the issue to various consultative committees, commissions and so on. At some stage, some country had to take the initiative to introduce legislation without the prior existence of a formula in another state. Will we ever be able to stand on  our own feet, do what we believe to be correct and act on our own knowledge, information and common sense, rather than looking to models in other countries? We seem to refer consistently to what is done in America, Europe and Australia. We do not feel in a position to introduce legislation until we have collected and collated all the information.
A substantial number of people in this country, and among those who have emigrated, suffered child abuse in institutions and schools and in their families. We should not underestimate the substantial trauma and huge damage done to those people. We have seen very stark examples of institutional abuse on television. We have also heard stories from individuals, both publicly and in private as politicians, about what happened in various institutions.
The State stands condemned for what occurred in those institutions for which it had responsibility. The reality is that, until very recently, politicians were so controlled and influenced by the church that they were afraid to take action. That is very sad and deserves to be condemned. They did not have the courage of their convictions to stand apart from what the church was dictating at that time. We know of cases where school managers left teachers in position, whom they knew had committed sex offences against children, and did not take action until a public outcry arose locally. That is extremely serious and should be condemned from the highest level. The Government and the Department of Education and Science ignored or reneged on their specific responsibilities in those instances. I hope this will never arise again and that all State institutions, and the health boards and Departments responsible for them, whether it is the Department of Education and Science or the Department of Health and Children, will take full responsibility. They must be made accountable for any abuse which occurs. The onus must be specifically laid on individuals in particular positions to ensure someone carries the responsibility for the occurrence of abuse.
We have had very clear and specific instances of abuse in families. There was the Kilkenny case, with the subsequent Kilkenny incest report, and the Kelly Fitzgerald case in Mayo and the subsequent report. Every Member of these Houses is aware of abuse cases in their constituencies. Over the years many public representatives have had the experience of hearing reports that certain matters could be happening in certain households, but when the authorities were approached they were somewhat hesitant about responding or unsure how they should approach the matter. This was primarily due to the lack of specific guidelines, criteria and legislation to guide people such as gardaí under the Department of Justice, Equality and Law Reform, officials and social workers under the Department of Health and Children and teachers under the Department of Education and Science. We must examine that and produce enabling legislation which will allow  these people to take clear and specific action when a report is made to them.
Judges in the District, Circuit and, in particular, High Courts have expressed their disappointment with the minimal provision of facilities to deal with sex offenders in comparison with the number who need treatment. It is unacceptable that, while there are facilities to deal with only ten sex offenders, 200 such offenders are serving prison sentences at present. That must be addressed. These people are released into society without having received specific treatment for their particular weaknesses. That is very serious for society because it has been proven that such people continue to offend. Children are being put at high risk by the release of these people. There is an onus on the Departments of Health and Children and Justice, Equality and Law Reform to provide the necessary personnel to treat these people.
New cases surface every week in practically every county of people who were abused in schools, institutions or families many years ago, some of which date back 20 or 30 years. In many cases, the State has taken the complaints on board, made detailed investigations, found extensive evidence and put together cases. There are cases involving sex offenders before the courts at present and others will come forward shortly. Some of these offenders will plead guilty, which will mean the whole book will not be fully opened, and others will deny the allegations.
In cases where the defendant pleads guilty, it is very important that the victims, who have given evidence to the Garda, are given an opportunity to make a statement in court and put it on the record. I know if they were all to do that some court cases could last for weeks because of the number of victims abused as children by some offenders. However, I stress to the Minister the importance of his Department engaging in dialogue with the Judiciary to ensure that judges hearing these cases adopt a very flexible and open approach and allow victims, regardless of their number and of the extent of their cases, to make a statement if they so desire. That is important because such people have suffered appalling abuse and need to be heard. For many of these people, it may be 20, to 30 years later but they deserve to be heard. It is particularly important for them that they are seen to be heard, so to speak. Many of these people will travel from America, England, parts of Europe and Australia.
It is vital that legislation is enacted to protect children today. I am sure if a question was tabled to the Minister in the Dáil on the cost to the Exchequer of investigations of child sexual abuse cases and if a costing was done on the number of psychiatrists and psychologists who have travelled overseas to meet and speak to victims on behalf of the State, it would be phenomenal. This is something which should be taken into consideration. In instances where this is done, it is highly  commendable. It should continue to be done regardless of the numbers involved.
Going to court is a traumatic and slow process. We suggested that a tribunal be put in place soon. I urge the Minister to reconsider his position on that issue. There is a large number of victims who deserve and justly merit compensation. No matter what monetary compensation they receive, it will never undo the damage which has been done to them, the impact on their lives, the trauma they have suffered and the difficulties they have experienced in relationships. No financial compensation will compensate them for those difficulties and we should fully appreciate that. It is important in order for these cases to be dealt with expeditiously that the Minister puts in place a tribunal to hear the cases.
It is also important that children who are under the age of majority have a facility to lodge complaints and to be heard. That is why it is necessary to appoint an ombudsman for children. Every child knows about Childline because of the advertising campaign over the years. If an equally effective advertising campaign was put in place for an ombudsman and if one was appointed, it would extremely helpful and could be a source of protection for many children. I urge the Minister to consider that matter.
I understand about 46,000 children went through the industrial school system. Most of these schools were run by religious orders. It is important to put on record that the majority in the religious orders did considerable good work, made huge sacrifices and were extremely kind. However, a minority did much damage and the damage they did spoiled the good work of many others in the institutions. These institutions were starved of financial resources and left unsupervised and unregulated by the State, and it stands condemned for that.
It is important that those children who are now adults, some middle aged, are compensated for the terrible trauma they suffered. They suffered considerable personal trauma because they were taken away from their families and, in some cases, were never visited by their families or relations. They were left in splendid isolation in institutions in the hands of people they did not know. Some of these people who acted in loco parentis abused their position and they stand condemned for that.
While talk of investigation continues, legislation is introduced and commissions' reports are presented, it is important that the only person who is protected is the child who was abused or children who are currently being abused. The perpetrators of abuse should not be protected and old age should not be considered a reason not to pursue a person who abused 20, 30 or 40 years ago. Age should not be a mitigating factor in this matter. Whoever perpetrated abuse should be followed to the end and the abused person, the victim, should see that that person is followed. That is extremely important.
While it is important the Minister listens to various people and groups concerned and hears from  interested parties, we must realise that only a few years ago when the then Minister for Education introduced “education for living” to the schools, there was a group which argued strongly against that because of the damage it would do to children and that it was dangerous for them to be too knowledgeable about matters of sexual nature at a young age. In some instances, there can be a hidden agenda behind many of the cases put forward by certain people or some organisations. Let us be honest about it. I know of cases where people taking a particular stance on that issue could have had other agendas. We should be aware of that.
It is important the Minister stands up to that. He is an intelligent man – Senator Ryan said that repeatedly yesterday – and has common sense. The Minister should stand up, use his intelligence, common sense and life experience and make decisions without too many inputs from too many sources. He has a fair idea of what is going on and a fair amount of common sense about how to deal with the issue. I suggest the Minister takes the initiative, does not wait for too many reports and gets on with it sooner rather than later.
It is a considerable problem and many people have been damaged. It is vital that we, as legislators, legislate to protect children today and ensure children are not abused as they were in the past. As the Minister will know, children in rural areas are being invited into cars on country roads. It has happened in every county, including west Kerry and Clare and it goes on all the time. We must do everything to protect these children and the responsibility lies with us as legislators and, primarily, on the Minister and on his party.
Mr. O'Donovan Mr. O'Donovan
Mr. O'Donovan: I support the Statute of Limitations (Amendment) Bill, 1998. At the outset, I compliment the Minister for coming to the House and supporting a Bill initiated by a former Member of this House, Deputy O'Sullivan. It is positive that the Minister has been accommodating and supportive of a Bill introduced by another party, which is not the norm. Normally it is the Government who introduces a Bill. The Minister's position on this matter and the gracious way in which he has accepted this Bill must be recognised.
I compliment Senators O'Meara and Taylor-Quinn on their sincere contributions to the debate on this sad problem. There is no doubt that there can be no hidden agendas on this issue. I fail to see from where Senator Taylor-Quinn is coming in that regard because this is such a serious and fundamental problem in our society that we must move forward – whether by introducing legislation, establishing a tribunal or whatever else – in a spirit of openness and transparency and in the absence of agendas of any sort, hidden or otherwise.
Since he took office, the Minister for Justice, Equality and Law Reform, who, thankfully, remains with us following today's Cabinet reshuffle, has been one of the most reforming holders  of that office in the history of the State. The amount of legislation he has introduced and initiated in this House during the past two and a half years is indicative of the strength of his no-nonsense approach. I have no doubt that he will pursue this matter with great vigour and passion and that he will be supported by the Government, which now recognises the problems that have existed in our society for some time.
If this debate had taken place 30 years ago, the official record of it would make for mind-boggling reading. In my opinion, this debate could not have taken place 30 years ago – that is a sad indictment of our society – because of a lack of political will. Abuse of children, whether it took place in the home, was carried out by those acting in loco parentis, or occurred in institutions such as schools, swimming clubs and industrial schools, has gone on for decades.
I grew up in a humble and religious background in west Cork and I know that people in the 1930s, 1940s and 1950s were afraid to oppose the church. That is a simple fact. I know of a case in which took place almost 100 years ago where a young girl was raped by a farm-hand and she was sent to live with an aunt in Boston. Her parents decided to say nothing about the incident because they believed it would bring shame on their family. Unfortunately, this type of situation has been allowed to exist for many years and we put up with it, as did our forefathers. Thankfully, however, it has all come out into the open in the past 20 years.
At long last there is a political will to set matters right and we are now moving in the right direction. There has been some form of reformation or renaissance in our churches. The abuse which took place was incredible and it is difficult for any sane person to accept what happened. As a family man, I often wonder how I would react if it happened to my children. I have the greatest sympathy for anyone who has suffered any abuse, in whatever situation. Such abuse was undeserved and I am incredulous when I consider what took place.
Senator O'Meara referred to the Sophia McColgan case which was appalling but which also proved to be a milestone because of the courage this young woman showed in bringing matters into the open. Ms McColgan, who was in her twenties at the time, suffered because of the Statute of Limitations but she still had the courage to take on the health boards, who defended the case vigorously. If I recall the facts correctly, the GP in question also defended his position vigorously. However, through might and main Ms McColgan was victorious. It indicates that the Judiciary recognises that this problem exists and that it is prepared to make decisions it would not have made several years ago.
If one considers the case of Brendan Smyth or those of several boarding schools and colleges where abuse took place, it is difficult to accept the facts. I attended a boarding school for a number of years and I read in the newspaper recently  that two former priests at the school are in prison for abuse of children which took place subsequent to my departure. That indicates that abuse has taken place until recently. However, a new approach is being put in place.
The Government should not crow about this or seek plaudits for what is now being done because it should have been done 20, 30 or 40 years ago. We should not politicise this issue because it is a human problem with affects everyone in society and we should work together in seeking to find a resolution to it. I am pleased that funding has been made available for counselling to be provided by health boards, etc.
On several occasions in my legal career I have come across cases where a member of a family committed suicide. Twenty years ago, the prospect of counselling for children whose father, mother, sister or brother had committed suicide was not entertained. It is an accepted fact now that counselling should be given to children who have undergone the trauma of having a close relative commit suicide. How would a child react if they were systematically abused by their father, a person they trusted, a teacher or a priest? It must be an appalling weight to carry during their life.
The essence of the Bill, which I do not doubt will receive broad support, is to ensure that a mental block which has been established in a person's mind due to an extremely traumatic experience during their childhood or adolescence will not prove a barrier to their taking proceedings in the civil courts in order to obtain compensation. That is another milestone. People might say that we are not going far enough but at least we are going in the right direction.
The type of mental block to which I refer can affect a person in their twenties – for example, Sophia McColgan – thirties, forties or fifties. I read an interesting newspaper article recently about a retired Garda sergeant who undertook one of the most difficult tasks of his life when he was approached by a person from a town in another county who stated that he had been living under a cloud for many years as a result of being abused as a young boy. The sergeant gained the confidence of that man. It took him years to get to the bottom of the case but he succeeded in doing so. It was the pinnacle of his career as a member of the Garda Síochána that he was able to help the man in question and that justice of some sort eventually prevailed.
I have read a number of books which exposed situations of this kind and brought them into the public domain. I accept comments by other Members that the financial recompense victims of such abuse receive offers scant compensation when one views the overall picture. However, if it helps in any small way – particularly in allowing them to seek help from counsellors or members of the Garda Síochána to lift that burden from the shoulders of those who have been abused for many years, in some instances decades – then we are moving in the right direction.
 When speaking on subjects of this nature I sometimes find it difficult to remain calm and collected. When one hears about cases of abuse or reads newspaper reports or see television programmes about them it is difficult to remain calm and objective. However, we must endeavour to do so. I am glad the Government has, although not before time, grasped the nettle.
Aside from sexual abuse and trauma, people are concerned about physical abuse. I have studied this issue and I have spoken to the Minister. I realise the difficulty with regard to defining physical abuse. Does it occur when someone gets a smack on the hand? When I was growing up I often got a smack on the hand. I got a smack from my teacher when I did something wrong but I had no difficulty with that. I am not saying someone should be thumped around the classroom or end up with black eyes or bruises. I recognise that if someone has been cruelly beaten and sticks are used or girls end up with black eyes or bruises, that has gone far beyond what is reasonable and proper.
The Minister is wise to refer this matter to the Law Reform Commission, which has done wonderful work. I must acknowledge that it was under a Fine Gael-led coalition Government that the Law Reform Commission was set up; the Act was initiated in 1985. That is not so long ago. We should not criticise the Minister for his sensible approach in seeking the advice of the Attorney General in order to get this aspect right. If we do not get it right the State will be in difficulty again because people will say it has gone too far and is unreasonable. The Minister in power could be in difficulty. We do not want to make a bad situation worse. I hope that the Law Reform Commission, the Minister and the Attorney General will work together to get this matter resolved in months rather than years. If not, we might be back here again trying to rectify this matter before the end of the year. I urge the Minister to propel this matter forward in every way possible.
I wish to refer to points raised by Senator Taylor-Quinn with regard to how courts do their business. Owing to the independence of the Judiciary we must let them do their job. However, I was in the Dublin Circuit Criminal Court last Friday because I had a particular interest in a case about child abuse. I spent two hours in the courtroom and several cases were up for sentence. I listened to a judge who professed that the lowest sentence for this type of serious offence is three and a half years ranging all the way up to a life sentence. He warned the legal profession and the media present of his views on this issue. He said that there was only one occasion where he granted a suspended sentence in his courtroom. This happened after a full investigation and it was discovered that the case was of a more trivial nature than originally presented. We cannot interfere with the system of sentencing in the courts.
In the past decade or less matters such as sexual abuse and other form of abuse have passed through the courts system to reach the Central Criminal Court. Many cases are not being dealt  with in minor courts such as the District and Circuit Courts. They are going all the way to the Central Criminal Court. Such cases are being treated with great sincerity and a realisation that these are serious matters. This shows a new direction for society. People have been fighting this issue since the 1950s and 1960s. Society is opening up. Politicians are coming right. Hopefully, the clergy, State agencies and health boards are coming around. Perhaps they have been taught a lesson. The circle is coming close to what it should be. Any person facing the courts now on a charge of indecent or serious sexual assault or rape of a male or female will face the rigours of the law and I support that type of approach.
We have come a long way. We are debating a subject that would not have been tackled 20 or 30 years ago because of a lack of political guts. I come from a protected and cocooned rural background. However, I am not saying abuse does not happen in rural areas. There is no doubt that for decades people in power and authority, bishops, politicians and parents knew this was going on but for some reason that I cannot define it was hidden away so as not to bring shame on the family. People were told that they could not take on the priests, clergy, health boards or institutions. That day is gone and thank God it is.
Ms O'Meara Ms O'Meara
Ms O'Meara: I thank the Minister for his response. I also thank all the Members who have contributed to the debate on this significant legislation. I thank them for their insight into this area and for their comprehensive remarks. Senator O'Donovan's last comments ring true for those of us, including myself, who grew up in quiet rural areas. As he spoke I was reminded of a time when I was a child and rumours went around among us that we should, particularly girls, be careful in the company of a particular individual. When I reported this to my mother she was shocked and horrified at the idea. She and her friends who spoke about it found it difficult to comprehend that it could happen. That would have been indicative of the time. To most fair-minded, decent people it seem incomprehensible that a member of the church and a respected member of the community could be engaged in any activity which would be detrimental to children. We now know it did happen. It is difficult for people, particularly for the older generation, to comprehend the information that was revealed in programmes like the “States of Fear”. It is hard for them to believe that State institutions, particularly institutions run by the church, should have been centres where widespread abuse took place. People were entrusted by the wider community with the care of vulnerable individuals and children and believed by the wider community to be genuinely caring for children. People believed that they were doing an excellent job. In more recent times those individuals have been shown of having totally breached that trust.
I want to refer to the separation the Minister  has made between sexual and physical abuse. We will debate this issue on Committee Stage because I am disappointed with the Minister's response. I read the debate on Report Stage in the Dáil and I suspect we will have a similar division of opinion here. The Minister is incorrect in his approach. He seriously undermines the Bill by taking the issue of physical abuse out of the thrust and effect of this legislation. He says he is sending this matter to the Law Reform Commission and it should be allowed to consider this matter. He says it is a complex matter, presumably in relation to the definition of what is physical abuse. The effect of that will be not only to undermine this legislation but to create an injustice. We are all agreed that we want to end an injustice and deal with it here. We do not want to create an injustice but this measure seems to do that.
We are capable and we have defined sexual abuse. We are not incapable of defining physical abuse. The Attorney General should also be able to give us some guidance. Many individuals were subjected to both physical and sexual abuse. In some cases it is hard to make a distinction between physical and sexual abuse. For instance, beating a child might appear on the surface to be physical abuse if there was no sexual content involved in the abuse, but it is very possible – and in some instances is the case – that the person perpetrating the physical abuse was doing so for sexual gratification. How does one make that distinction? Is that sexual abuse or physical abuse? Some might say it is both. We are limiting the possibility of someone taking an action by splitting the issue in this legislation.
This decision also raises the issue of having to revisit this legislation in the future on the basis of the Law Reform Commission's recommendation. As a result people may have to take two actions before the courts – one regarding sexual abuse under the Bill if passed in its current form, and, if we ever amend this legislation, a second action concerning physical abuse. However, we have no idea if this legislation will ever be amended and the Minister is creating more problems than he is solving by taking this approach with which I have serious difficulties.
Some consider the beating of a child a lesser offence than sexual abuse. However, experts have shown that this is not the case and that the trauma of physical abuse can be as bad as that resulting from sexual abuse. Are we suggesting that physical abuse is a lesser crime? I do not suggest that the Minister considers it is a lesser crime but to some extent it is the inevitable conclusion one would have to reach if we split physical and sexual abuse in this legislation.
Senator O'Donovan said rightly that we have come to a point in our history where we are dealing with these matters. In doing so let us deal with them properly. Let us deal with them in such a way as to show our utter, complete and total abhorrence of the events which took place and of the societal structure which allowed them to  happen. Senator O'Donovan also said that we did not have the political will to deal with this issue 20 years ago but that is not a true reflection of the situation. Twenty years ago we were incapable of dealing with it because people who came forward with stories were not believed. This was because the sense of openness, transparency and accountability which is current in our systems was not as strong at that time. We did not have the same sense of accountability and, to a large extent, we were still in the grip of a very authoritarian society, the type of society which allowed this abuse to take place. Thankfully, our society is changing and as legislators we are charged with an onerous responsibility to ensure that legislation passed in both Houses is capable of dealing with the problems of the past which, in some cases, still exist. The beating of children has not stopped. It has stopped in institutions but it has not stopped in the domestic context and much abuse still takes place. We will not have completed our work in this area until we root out and deal with that problem.
This issue is about power and control. As legislators we are charged with the responsibility of getting legislation right. We have come up against a severe difficulty regarding the separation of physical and sexual abuse. We will come back to this on Committee Stage and the Minister knows my views. He said that he is awaiting the Attorney General's advice concerning the other complex legal issues such as the three year limitation and the central issue of retrospection. I look forward to the Minister's proposals on these issues.
I thank Members who contributed to this debate. The legislation has widespread support. I appeal to the Minister to listen to what victims and Members, particularly those on this side of the House, have to say on this issue. He should also remember that as legislators we are taking an extended role in reflecting the views and concerns of victims. We should listen carefully to what they have to say to ensure that legislation passed has the maximum effect and the widest possible powers so that justice is served for those who were so badly served in the past.
Question put and agreed to.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: When is it proposed to take Committee Stage?
Ms O'Meara Ms O'Meara
Ms O'Meara: Next Wednesday.
Sitting suspended at 12.15 p.m. and resumed at 1.30 p.m.
Seanad Éireann 162 Statute of Limitations (Amendment) Bill, 1998: Second Stage.