Dr. Clíona Saidléar:

I thank the committee for the information to speak on the reform of the family law system. RCNI recognises the expert and detailed consideration given to the issues of interest to this committee by our peers today and in the last 12 months. I refer in particular to the Garda Inspectorate report, the Child Care Law Reporting Project, the Health Information and Quality Authority, HIQA, and the special rapporteur on child protection.

Rather than repeat them, I will focus on RCNI’s particular area of expertise and specialist concern, sexual violence and in this context, the child victims of familial sexual violence and incest. We have three priorities, the first of which is the establishment of a specialist family court, as our peers have also advocated. Our second priority is transparency and accountability of our child protection system including the family law system, while the third is the development of a national strategy on child sexual violence.

Child sexual violence is a crime, not just a civil matter. However, in cases of child sexual violence and incest, the criminal justice system often fails and the protection of these children can become the subject of the family law courts, both publicly and privately. Tusla receives approximately 3,000 child sexual violence referrals per annum, although the number of children concerned will be fewer. I invite the committee to consider what happens to these 3,000 reports. International in-depth studies of disclosures, from whatever source, of sexual violence committed against children allow us to state that we can expect some false allegations at a rate of approximately 2% to 8%, with the lowest rate of false allegations being detected for the child who discloses themselves. In accordance with the law and protocols, all cases are notified to An Garda Síochána. Difficulties with these protocols are detailed in the specialist reports cited in the footnotes and are part of the implementation plan arising, in particular, from the Garda Inspectorate report but I do not propose to dwell on those matters here.

According to the Garda Inspectorate, for these cases there is a 4% prosecution rate, with less than 2% resulting in criminal convictions. Therefore, our criminal justice failure rate in reported and true child sexual violence is between 90% and 96%. For these children, risk needs to be managed and they need protection regardless of the absence of a criminal conviction. The protection of these children is one of the complex tasks we expect families and communities to undertake informally and which the legislature has mandated Tusla to undertake formally on all our behalf. In the course of this work, Tusla relies on the family law courts for some of its actions such as applications for care orders. In addition, these cases arise in private family law because for many child victims, the family is not a safe place and is the location of harm.

The inspectorate's report, published in December 2017, shows that in 44% of child sexual violence cases the alleged perpetrator was a family member. When we look at different age cohorts within childhood, which the RCNI did in our national statistics report of 2015, we see that in 62% of all cases of child sexual violence against children younger than 13, they were reported as perpetrated by family members. Where a child discloses incest, some but not all cases will result in the family breaking up. This can be expected to be a highly acrimonious situationwhich is likely to escalate into the private family courts. This means that we can expect that a significant proportion of family separation and child custody cases going through our family courts involve the rape and sexual abuse of children by family members in the absence of a parallel criminal conviction.

The family court service processes on average 11,600 cases involving guardianship, custody and access matters. The Child Care Law Reporting Project and the Legal Aid Board have tried to estimate how many of these involve child sexual violence. RCNI believes this figure should not be a matter of a guesstimate. It should be possible, if novel, for our court services to gather and release statistics on how many private family law cases involve allegations of child sexual violence. We recommend that the Courts Service gathers and publishes this information regularly as an imperative matter of justice and public interest. Our family courts are handling highly criminal matters of the most sensitive and urgent child protection nature in unknown numbers, without criminal authority, without the appropriate tools and in the absence of appropriate specialisation. RCNI advocates strongly for a special family law court which addresses these concerns. Such a court was recommended in 1996 by the Law Reform Commission, and since then by the child rapporteur and the Child Care Law Reporting Project among others. It is long overdue.

As noted by the committee, family court hearings are held in camera. This means that apart from the very welcome Child Care Law Reporting Project and the work of the rapporteur, there is little by way of gathering and collating of data to allow for accountability and reassurance. A thorough review of how the in camerarule impacts on transparency and accountability should be considered. In addition to the in camerarule, confidentiality and non-disclosure clauses imposed on parties in the family courts do sometimes occur, whereby the court rules, among other things, that a child’s disclosures of rape and sexual violence must not be reported directly to the State’s investigative authorities, An Garda Síochána, but must be mediated through appointed individuals or Tusla who will decide when a child’s voice can be heard by our mandated criminal justice investigative authorities. There is no data or analysis generated by the courts services or Tusla to make publicly transparent how many children and their guardians are bound by civil court ordered, non-disclosure clauses. While we recognise the complexity of the cases we would recommend that achieving greater transparency on these matters through Courts Service data is a minimum for the discharge of oversight when such grave matters are at issue.

Finally, we recommend that this committee adds its voice to the call for an urgent child sexual violence national strategythat would ensure that the child victim of rape, and most particularly of incest, does not continue to be at risk of falling through the cracks. Until we increase our family courts and allied child protection structures transparency and accountability and specialisation, children and their voice will remain disturbingly silent.