Brian Hayes (Dublin South West, Fine Gael) | Oireachtas source

I congratulate Deputy Denis Naughten for publishing this Bill and bringing the matter to the floor of Dáil Éireann. I apologise on behalf of the Minister for Justice and Equality, Deputy Shatter, who is unable to attend. He is at a meeting of the Cabinet and he asked me to express his apologies to Deputy Naughten and other Members for not attending. He will read the content of the contributions made. Deputy Naughten has set out that he acknowledges this as an issue the Minister has spoken about consistently since his appointment in 2011. The Minister is absolutely committed to bringing comprehensive legislation before the House. That the Minister met the Deputy earlier this week to discuss the Bill is welcome.

Recent events have shown that we have to be ever mindful of the dangers posed to our children and must explore all avenues that will enhance their safety. We all want a comprehensive approach to minimising the risk posed to our children. This is not a simple task, nor will we ever be able to eliminate the risk altogether but child safety and putting children first is a priority for this Government. Any debate that helps us consider how we can best protect our children is to be welcomed.

The Bill focuses on the threat posed to a child by the unknown stranger in the neighbourhood. While we must take steps to minimise that threat, the greater risk to a child of sexual violence, unfortunately, is likely to be from a member of the child's family or an acquaintance. This week, the Rape Crisis Network of Ireland published important research on sexual abuse of children in Ireland. Of the children who reported sexual violence, 7% of reported incidents involved strangers; 31% involved close family members; and 39% involved friends and neighbours. Other Members alluded to the fact that the great majority of the problem relates to people in close proximity to the child, such as friends and neighbours and especially family members. We must be cognisant of the research.

The report made it clear that, where sexual violence is perpetrated by a family member, many children do not report such incidents until they reach adulthood. An analysis of all of the people who reported child sexual violence in this study, whether they reported the abuse as a child or did not report it until they became adults, showed that 50% of reports related to sexual violence perpetrated by a family member. Some children are either reluctant or afraid to report sexual violence perpetrated by a family member, and this is understandable. The humiliation, fear and denial of the terrible realities of family abuse contribute to the obstacles faced by children in reporting sexual violence perpetrated by a family member.

It is difficult for many to come to terms with the reality of family sexual abuse as it utterly offends our notion of family care, duties and protection but while we focus on stranger danger it is important that we do not neglect or ignore that the real danger lies for many children in the risk of abuse from someone they know. It is important in this context to emphasise that, while such a risk is very real, it applies to the minority of families and family settings and the vast majority of parents, their relations and friends do not pose any risk to their children. It is the failure, however, to recognise that such risk can exist that can condemn too many children to repetitive abuse by a serial abuser while those close to the abused child are either oblivious to the danger, in a state of denial or choose to look the other way.

These issues are not unique to this country. The World Health Organisation and the United Nations Secretary General published a major international study of sexual violence against children in 2006, which showed that much of the sexual violence against children is perpetrated by family members or people residing in or visiting the family home.

This report showed that of the 150 million girls worldwide who have experienced sexual violence, up to 56% was perpetrated by relatives. An analysis of the child protection files in Spain in 1997 and 1998 showed that 3.6% of abuse cases involved sexual abuse and of these cases, 96% of the perpetrators were family members and relatives. This global report also acknowledges that adults are more comfortable and outspoken about the risk of sexual violence at school or in the community but are much less likely to discuss a child's risk of sexual abuse in the family home. My concern and that of the Minister is that the dominance in the discourse of the risk posed by a shadow behind a bush instead of the footstep on the stairs can divert our attention from the greatest likelihood of danger to children and may make it more difficult for children to report abuse by those they trust and depend on most.

The Bill essentially addresses the risk posed to children of sexual abuse and assault by strangers. The Minister shares the desire of Deputy Naughten to enhance the protection that can be afforded to our children. There are many positive aspects to the Bill. It is the Minister's belief, for example, that a parent who has a legitimate concern about an individual in contact with their children should be in a position to raise that concern with their local gardaí. Indeed, we would hope that parents would already feel free to do so and if there is a serious and imminent threat to their children, the Minister is confident that the gardaí would already take the appropriate action. Under Children First guidelines, on becoming aware of any danger to a child, the gardaí notify the HSE who is empowered to carry out a number of activities, including approaches to parents and organisations. Under Section 8 of the Data Protection Act, information may be disclosed directly by the gardaí to prevent an offence or to prevent injury to a person. As I will explain in detail later, the Minister will be asking the Commissioner to introduce an appropriate scheme on this matter.

However, we all have to be conscious of the rights established under our Constitution and the European Court of Human Rights. They do not allow the blanket disclosure of information on convicted criminals. It must be in pursuit of a legitimate aim and proportionate and must balance the competing rights at issue. Based on preliminary advices received from the Office of the Attorney General, there may be issues of constitutionality and concerns about the compatibility of this Bill with the European Convention on Human Rights, ECHR. With regard to Part 3, the Minister believes that it would be better for those subject to the requirements of the Sex Offenders Act 2001 to be required to register with their local Garda station, not just any Garda station, and that the time period for registration should be reduced from seven to three days.

As the Minister does not have any issues with the general approach of the Bill, the Government will not be opposing its reading at Second Stage. However, its focus is limited and there are a number of drafting difficulties. The Minister is already bringing forward legislative proposals which will address the issues raised in this Bill as part of a more comprehensive approach to the question of sexual offences. As regards the text of the Bill generally, the Minister thinks the approach is too complicated and confusing and that many of the provisions are unnecessary. Under sections 4 and 5, an application can only be made in respect of a "named person". I can imagine many circumstances where a parent would have concerns about an individual but would not be able to establish the name of the person. Should they be excluded? While on the face of it, the procedure is appropriately restricted to a person "who has contact with his or her child or vulnerable adult", the definition of "contact" in section 1 includes "likely physical presence in the vicinity of the child or vulnerable adult" and, as a result, is so wide as to cover most of the population. The preliminary advices received from the Office of the Attorney General identify this as a key concern as the Bill throws an extraordinarily wide net as to those about whom information may be sought. This raises issues about proportionality having regard to the objective to be achieved.

The Office of the Attorney General has also voiced strong concerns about the lack of any safeguards in the Bill to protect the constitutional and ECHR privacy rights of persons about whom information is sought. In the Bill, such persons do not have any right to know that information about them has been disclosed and will not have an opportunity of correcting information that is inaccurate.

The Bill includes an appeal against non-disclosure and requires the establishment of a three-person appeals panel in each Garda division. The Minister is not sure whether such a system would be justified. There is no appeals provision in the UK scheme, which is understandable as a person either receives information or is told there is no information to disclose. It is hard to see what is the purpose of an appeal or how it could be argued by applicants that a decision should be reversed if all they have is a response saying there is no information to disclose.

The Minister has concerns about section 8, which makes it an offence for a person to fraudulently, maliciously or vexatiously make an application. Presumably, applications would be made in private to a designated Garda and ask for information on a person. As the application will be private and is inquiring after information, it is hard to see how an application itself it can cause harm. The only two circumstances that the Minister can envisage being of concern is wasting police time or seeking information on a third party when there is no perceived threat to a child. Wasting police time is not a new problem and the penalties for wrongful disclosure of confidential information would address the second issue. The Minister thinks that section 8 is heavy-handed and might serve to deter parents from making genuine applications.

Moving to the substance of the proposal, we have to place this in context. There is already a structure in place in this jurisdiction to monitor convicted sex offenders with a designated Garda inspector in each Garda division having responsibility. As stated earlier, under Children First guidelines, if the Garda become aware of any danger to a child it notifies the HSE which is empowered to carry out a number of activities, including approaches to parents and organisations. While there is no formal scheme in place, there is nothing to stop any individual making inquiries with the Garda about an individual who may pose a threat to their children.

The explanatory memorandum to the Bill states that the scheme is modelled on "Sarah's Law", to which Deputy Naughten referred and which operates in the UK through the child sex offender disclosure scheme. Despite being referred to as "Sarah's Law" in the UK, the scheme in question is not a statutory scheme but an administrative scheme that formalised on a national level what would be regarded as good practice in child protection throughout the different police services in the UK. It was first piloted in the UK in 2008 before being extended nationally. The UK scheme is tied into the multi-agency public protection arrangements for the management of sex offenders and is not a stand-alone approach or scheme. Two questions immediately arise. Why do we need an elaborate statutory scheme here if one is not required in the UK? More importantly, why should we focus on just one aspect of the monitoring set up in the UK and not look at the bigger picture?

The Department of Justice and Equality carried out an extensive review of the management of sex offenders in this jurisdiction. It involved a series of consultative meetings with the front-line justice services involved, including the Garda, the Prison Service and the Probation Service, to look at the issue of the threat posed by sex offenders. In particular, there were detailed discussions about what legislative changes would bring a practical benefit to improving the management of the risk posed by sex offenders. Arising from these internal reflections, a comprehensive document entitled The Management of Sex Offenders - A Discussion Document was published in January 2009. Among other things, it looked at best practice in other jurisdictions. A discussion forum was arranged and oral and written submissions invited and received. The outcome of that consultative process was published on the Department's website in September 2010.

There was a high level of engagement by bodies dealing with the victims of crime and a general consensus as to the best approach.

Currently, 344 sex offenders are in prison, of whom 103 will be released in 2013 and 99 in 2014. Not all sex offenders pose the same level of threat on release and that has to be taken into account. Indeed, the recidivism rate for sex offenders is lower than for the average offender. The most-up-to date study shows an average recidivism rate of 62.3% within three years for prisoners. The rate for sex offenders was much lower, with fewer than 5% committing a further sexual offence within the three year study period. More sex offenders are participating in the building better lives programme in prison. We are seeing some success as a result of this programme.

I thank Deputy Naughten for introducing the Bill. He has obtained support for what he wants to do in his discussions with the Minister, Deputy Shatter, and from my contribution because we agree that the issue has been left in abeyance for too long and must now be addressed. The approach we are taking incorporates many aspects of his Bill into a wider piece of legislation.

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