Olwyn Enright (Laois-Offaly, Fine Gael)

I welcome the opportunity to speak on this Bill. The Minister said it will greatly assist the commission in completing a comprehensive inquiry into child abuse within a sensible time frame and at an affordable cost. While I agree with the Minister's sentiments, it should be clarified that while justice should be delivered in the most timely and effective manner, the priority must be that it is delivered.

When Ms Justice Laffoy resigned from the Commission to Inquire into Child Abuse in September 2003, the work of the commission and its relationship with the Government was brought under the spotlight. What was uncovered exposed the Government to valid criticism as to how it had failed to support Ms Justice Laffoy in her approach to the investigation of abuse and how persistent mishandling of the situation led directly to her resignation. In fact, the Government approach to the Commission to Inquire into Child Abuse led Ms Justice Laffoy to write that since its establishment "the Commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas". This was a damning indictment of a Government that on one hand established the commission to investigate the most dreadful case of mass abuse to occur in the history of the State and, on the other hand, failed to give the same commission the support it needed to carry out its functions.

I do not wish to rehearse the significant failings of the Government at that time but it is important that some of the most serious failings are noted. Ms Justice Laffoy listed the ways in which the Government thwarted the work of the commission: compensation for the survivors of abuse was raised in July 2000 but was not dealt with until 2002; the issue of the payment of legal costs of persons involved in the process of the investigation committee was also raised in July 2000 but was not dealt with until 2002; the decision to review the commission's mandate, which effectively stalled the work of the commission, and the slow and contradictory way in which commission requests for additional resources were handled.

These issues were clearly matters for the Government to resolve but the delay in dealing with requests from the commission and the often contradictory responses that Ms Justice Laffoy received regarding requests for assistance frustrated the work of the commission and led to her resignation. As I said previously, there is a conflict of interest in the Department of Education and Science sponsoring an inquiry when the Department is part of what is being investigated. That is a mistake and it is a pity the opportunity to rectify it in this legislation was not taken.

The actions of the Government stymied the work of the commission and delayed proceedings that are vital to the search for truth, acceptance and healing that so many victims of past abuse seek. I sincerely hope Mr. Justice Ryan is receiving the co-operation and assistance he needs from Government to conduct this important work. We must now ensure that we enable the Commission to Inquire into Child Abuse to work for all victims of abuse.

From the moment the Taoiseach made his apology to the victims of child abuse in 1999, the victims expected that they would have access to the commission and that their stories would be heard. Following the resignation of Ms Justice Laffoy and the appointment of Mr. Justice Ryan to the commission, a detailed report on the commission was published in January 2004. In his report, Mr. Justice Ryan outlined the difficulties that have faced the commission, in particular the problems associated with the work of the investigation committee. Mr. Justice Ryan made a clear statement with regard to the issue of "sampling", the random selection of cases to proceed to inquiry, when he stated:

While there was a readiness all round to acknowledge the problems facing the Investigation Committee, the idea of "sampling" the cases was seen as an unacceptable attenuation of the entitlements of victims of abuse to bring their experiences to the Commission via the Committee of choice. And it has to be accepted that this proposal would indeed have deprived a large number of complainants of the opportunity to participate directly in the inquiry process.

However, Mr. Justice Ryan also stated in his report that he believed the commission should have a wider discretion regarding which cases go to a full hearing and stated:

The [Investigation] Committee requires a capacity to come to a conclusion in respect of a particular complainant that it would be impracticable or unfair or unreasonable to put him or her to the ordeal of being examined and cross examined in respect of allegations that were of such a nature as to be unlikely ever to be able to ground a finding of abuse. This is naturally a sensitive and difficult issue.

Certainly, this issue is one that has caused most considerable debate and concern among the victims of abuse in recent years. It as of paramount importance that the commission on child abuse is statutorily empowered to fulfil its vital remit but it must also be of real assistance and benefit to each victim who seeks access to it.

There are aspects of this legislation that are welcome but there are also aspects that cause concern. I welcome the broadening of the definition of abuse that now includes not only the result of abuse but also includes what "could be expected to result". This is a change that eases somewhat the burden on the victim and acknowledges, whether intentionally or not, that different people are affected in different ways.

Section 4 of the Commission to Inquire into Child Abuse (Amendment) Bill 2005, amends the Act of 2000, removing the obligation on the investigation committee to hear all complainants and gives it discretion as to which witnesses it considers should be called to a full hearing. However, in balance to this change in legislation, the commission will meet all victims and conduct interviews with each one before making a decision as to the cases that should progress to full inquiry. Mr. Justice Ryan, in his report of January 2004, was clear that he was not suggesting that the category of complainants whose allegations of abuse would not proceed to full inquiry would be large in number. This point is of some concern. Obviously, the amending legislation being discussed cannot indicate the number of cases that might not proceed to inquiry. However, it is important to insist that if this legislation is passed, and discretion is given to the child abuse commission, it would only be applied in cases where the intention was to use it, in the January 2004 report.

The chairman of the commission, Mr. Justice Ryan, wrote to the 1,712 outstanding complainants, asking them whether they wished to proceed with their complaint. We would have a better idea of what we are dealing with here if we were told how many have replied to say that they are continuing. It would allow us to debate this issue with a clear grasp of the level of complaint. When Fine Gael contacted the commission, it informed us that it is not making this information available but that replies are still being received. It is a pity we cannot have this information. I will examine this section in detail and consider the best way forward for the victims of child abuse before Committee Stage of the Bill.

Section 5 represents a sea change from the original Act of 2000. The alleged abuser will now only be identified if he or she has been found guilty of an offence in respect of the abuse. I can only assume the reason for this is to speed matters up and that it will mean the abuser will not have to be afforded legal representation. However, I would like to hear further explanations from the Minister on this issue as it represents a considerable turnaround which is difficult for victims to accept.

Section 6 appears to allow for the opportunity of meetings being held in public, but I would like to see greater clarity on what will guide the commission in reaching its decision on this issue. I endorse the opportunity being given to the commission by this Bill to act in divisions, which is broadly similar to the last Act. The difference is in allowing the divisions to consist of only one member rather than members. While the previous commission technically had this power, resources and the awaiting of responses from the Department of Education and Science for clarifications and commitments in this area effectively rendered this power useless. The commission can only work with the resources allocated to it by the Department, which to date has shown a spectacular disregard for the work of the commission.

A sweeping change is proposed in section 7. Up until now, the function of the commission was to provide "for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and make submissions to the Committee". Under this proposed legislation we are:

to provide, as far as is reasonably practicable, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and other relevant experiences undergone by them in institutions.

What does the legislation mean by "reasonably practicable"? No definition is offered to enlighten us further and I ask the Minister for clarification on this point. If people are asked to accept such a change, which runs contrary to all their expectations, they are at least entitled to know how the commission will be guided on this.

Proceeding with the work of the commission and reaching conclusions on this shameful aspect of our national history is in the interest of the victims of child abuse and of society. We have a responsibility to ensure the dreadful occurrences of the past cannot happen again. A large part of our response must focus on the need to hear for ourselves about the ill treatment meted out to vulnerable children in the past. When she dealt with the issue of residential institutions redress boards, I was disappointed that the Minister did not take the opportunity to consider the issue of children who were abused in regular day schools. People such as those involved in the Donal Dunne case have always been refused the opportunity of appearing before the redress board. The argument used was that the State was not in loco parentis to those children, which I find difficult to accept. These people may lose their opportunity, under the proposed changes, to have their voice heard.

As there is no redress board, the only opportunity these people would have to get their story told is through the child abuse commission. There have been court cases, and the abuser in this instance was prosecuted. However, there is an issue surrounding the responsibility of the Department and health board officials who should have known what was going on but failed to take action. There is a great degree of concern among the victims that they will not get the opportunity to have their story told. That brings me back to my point about the conflict of interest in having the Department of Education and Science as a sponsoring Department and under investigation at the same time. I would be concerned if there was a feeling that these people were being denied that opportunity.

We often feel that we have only become aware of the abuse in the 1990s. However, in 1957, the ISPCC recorded cases of assault, incest and neglect while the Tuarim report was published in 1966. The commission of inquiry on mental illness was carried out in 1966 and recommended that the problem of industrial schools should be examined. The Kennedy report in 1970 was described by Mary Raftery as one of the most damning indictments of the operation of any State system ever recorded in this country. Unfortunately, it appears the documents gathered for this report were lost. In that same year, Donal Dunne arrived in a school in County Offaly and evidence of his abuse became apparent after three years. He was sacked by the parish priest but was provided with a glowing reference after which he served in six or seven more schools. Instances like that must be investigated by the commission because it is not just the abuser who bears responsibility — the State does so as well.

According to the third interim report of the commission in 2003, there were 165 complainants from primary and secondary schools, but 93% of these could not be called because there was only one allegation made against 135 individual abusers. That means that only 7% of those who claim to have been abused in those schools are allowed to come before the commission. There are obvious concerns that this 7% would be diluted further. I welcome the fact that section 17 of this legislation, in amending section 25 of the principal Act, now gives discretion to the High Court, rather than to the commission, to decide on whether court directions on the performance of its functions should be held in public.

Provision in the legislation for the establishment of an education finance board for the former residents of children's institutions also represents an important development. For those denied the type of support and education that is now taken for granted in most families, this support is overdue. The composition of the board will be one chairperson and eight ordinary members, four of whom must be former residents of institutions. All are to be appointed by the Minister for Education and Science. I would appreciate further clarity on the manner in which these people will be appointed, and how the former residents of institutions will be selected. It is important that people from different institutions, with different experiences, have the opportunity to serve on this board. I must question the delay of one year for the establishment of this section of the Act. Justice has been delayed and denied long enough for those involved. I appreciate the necessity to establish a board, but there is no reason that these preparations cannot be made now.

As it is not clear from section 30 of the Act, the Minister should clarify whether the cost of running the board will be borne out of the €12.7 million granted to it. Section 30 allows the Minister for Finance discretion on the number of employees on the board. There was a clear impression among those involved that the money would be ring-fenced for them and not spent on administration.

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