Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

Having consistently called for the Children First Bill to be published and introduced in this House over the past two years, I obviously welcome the fact that we are where we are this evening, that the Bill has been published and we have an opportunity to debate it. I welcome elements of the Bill in so far as it goes. However, that welcome is strongly tempered by disappointment and concern that the new Children First Bill does not include any sanctions for those who refuse to report child protection issues.

On assuming office, the Minister, together with the Taoiseach and the Minister for Justice and Equality, promised that Children First was their number one priority but it has taken three years to bring forward what Emer O'Kelly rightly described in theSunday Independenttwo weeks ago as "a toothless Bill".

Before turning to the Bill, it is important once again to deal with the repeated efforts of the Minister to give the impression that children's rights were not taken as seriously before she and the Government took office three years ago. No one can deny that the country had a less than admirable record regarding child protection and welfare during the 20th century. However, attitudes have changed immensely over the past 20 years. The Child Care Bill 1991, enacted by Dr. Rory O'Hanlon, introduced considerable changes in respect of children in care and improving the child care policy previously regulated by the Children Act 1908. The then Minister pointed out how political and administrative structures had changed, how new values and attitudes had evolved and that there was more sensitive understanding of the psychology and needs of children. In particular, he cited how there was a greater awareness of the rights of a child as an individual member of society.

Attitudes to children have changed considerably over generations. There was an old saying that children should be seen and not heard but even when I was growing up, that was regarded as an old saying. A clear focus on children and child-related issues has accelerated in this century and members of the public and previous governments have come to focus on children and child-related issues. This change in focus has been incremental and substantial and not only in recent years as the Minister would have us believe.

In 2000, the then Government published the first national children's strategy while, in 2002, legislation was enacted to establish the Office of the Ombudsman for Children to provide an independent mechanism to vindicate the rights of children. The establishment of such an office was in recognition of the need for an independent person to act as a powerful advocate for children and promote the welfare and rights of the child. This year marks the tenth anniversary of the Office of Ombudsman for Children and Ms Emily Logan's appointment. I congratulate her and her staff on their immense contribution over the past ten years.

In 2006, the Government appointed the first independent Special Rapporteur on Child Protection, Dr. Geoffrey Shannon. This was also an important development and I welcome that the original appointee was reappointed by the Minister. In 2005, the Minister of State with responsibility for children was given a place at Cabinet and, in 2008, the previous Government also established the first Office of the Minister of State for Children and Youth Affairs. Obviously this was not a full Department but it put in place the infrastructure for such a Department under the current Government and we welcome the fact that the Minister for children is a full Minister now.

Much of the preparatory work for the referendum on children's rights was done by the previous Government and a cross-party Oireachtas committee on which the Minister and Deputy Ó'Caoláin served. I have previously complimented the Minister on ensuring a referendum was put to the country and the result was a significant achievement, which ensures the rights of children are enshrined in our Constitution. However, she jeopardised the campaign by other actions and almost 18 months after its passage, the practical implementation of the result remains stalled.

I have provided brief background details to demonstrate that reforms and a change in attitude were not confined to the past two years. This incremental and substantial process has been ongoing for the past decade and needs to continue for many years. Let us consider where we are now and the reforms being brought forward by this Minister. I want to be constructive but I am struggling to find something positive to say about this latest legislative initiative, which confirms a pattern of action under the Minister's tenure. She seems to over promise and under deliver; great on rhetoric but poor on delivery. The recent published Aftercare Bill is restrictive and discriminates against the most vulnerable of the vulnerable. The legislation to establish the Child and Family Agency omitted two of the critical services recommended by the task force the Minister established to advise her. Despite the "Prime Time" exposé, "Breach of Trust", relating to child care settings, inspectors have still to be appointed in some regions. The Minister amended the period within which inspections must be carried out. Previously, they had to be carried out annually but this was extended to triennially recently and we ware still waiting on the new standards to be published almost 12 months on.

I am not surprised that the latest initiative from the Department is yet another U-turn on a solemn commitment made by the Minister and her Government colleagues. To his credit, the Minister for Justice and Equality has carried through on what he promised and he has introduced the legislation that will enhance child protection, the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 and National Vetting Bureau (Children and Vulnerable Persons) Act 2012, although we are still awaiting the commencement order for the latter.

I have consistently called for the legislation to be published over the past two years and I welcome the fact that we are debating it now. The Minister will say others promised it as well but, for her part, she promised it on a number of occasions. Sadly, the lack of sanctions in Bill represents a watering down of the robust legislation that was promised. It is hard to believe that this is the best legislation the Minister could come up with three years on from her describing the legislation as her top priority. The rhetoric of her reforming agenda lies in tatters with this inadequate legislation. It was described by Emer O'Kelly in the article to which I referred as follows:

We have been saying 'never again' for a very long time. And this ridiculous watered-down Bill doesn't even say that. It is merely a blanket to attempt to muffle the sounds of weeping, anguished children. Shame on us; and shame on our Government for our and their indifferent hearts and empty words.

This Bill is supposed to end a culture of turning a blind eye to child abuse and other child protection issues. While professionals working with children will be legally obliged to report concerns, there will be no legal penalties if they do not. The legislation, therefore, lacks teeth.

This is a major U-turn by the Government. The heads of the Bill, when published two years ago, included robust sanctions for failure to comply with the Children First legislation. The guide to the heads of the Bill stated:

Head 20 provides for offences under the Bill and for the liabilities attaching. A person is guilty of an offence if he or she is required to report concerns or allegations of abuse under the proposed Bill to the HSE and fails to do so. A person guilty of an offence will be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

This is absent from the legislation, which is disappointing. Following two years of protracted delays and with no meaningful explanation, we appear to have ended up with a watered down version of the original Bill. There will also be no sanctions against organisations that fail to have child safety statements in place.

Children have waited too long for these guidelines to be put into law. There is no point in the Minister patting herself on the back claiming that she is finally doing something that was first promised 15 years ago if she will not back it up. There is no room for tokenism or half-hearted efforts. We need a bold step that ensures people are forced to speak up when children are vulnerable to abuse or neglect. Surely what has led to the introduction of introduce this legislation is what is described in the Ryan report as the lack of consistent and uniform implementation of the Children First guidelines. Will this legislation remedy this fundamental fault in our child protection system? Together with many of the NGOs working at the coal face, I am concerned about the absence of sanctions for those who fail to comply with the provisions in this Bill.

This is not just partisan political posturing; there is widespread concern among many organisations and stakeholders about what is not in the Bill. Following the Bill's publication, the Saving Childhood Group, comprising Barnardos, CARI, the Children's Rights Alliance, the Dublin Rape Crisis Centre, Empowering People in Care, EPIC, the ISPCC and One in Four, issued a statement welcoming the Bill but also highlighting concerns. They drew attention to the fact that no sanctions are in place for those who fail to comply with the requirements set out in the Bill. They also pointed out the list of mandated professionals should include those working in organisations focused on child protection, welfare and rights services They went on to mention there is no reference in the Bill to retrospective allegations. The Saving Childhood Group also drew attention to the fact that the level of resources required to ensure all stakeholders, in particular parents, are informed and can act in an informed way is not outlined.

The CEO of the ISPCC highlighted his concern that the list of mandated professionals does not cover national organisations whose main purpose is working with children and families. He stated: "while so many organisations and services are doing great work and already adhering to best practice, many large service providers including my own organisation, the ISPCC are not explicitly mandated to comply with the protocols set out in the Children First Bill." He also rightly pointed out that it is imperative all organisations providing services to children, whether statutory or non-statutory, are obliged to take a consistent approach to ensure the best possible responses for children.

The CEO of One in Four emphasised the sanctions issue, making a compelling case that such a long-awaited Bill, which seeks to provide for the reporting of child protection concerns and to ensure statutory and non-State funded bodies are legally obliged to follow protocols in reporting any concerns regarding the safety and welfare of a child, does not include clear sanctions for failure to comply and without this it is hard to see how a completely consistent approach from all will result.

I do not believe the Bill can be described as providing for mandatory reporting, as promised by the Minister and her colleagues. This is because a key ingredient of a mandatory reporting system is a requirement to report child abuse on a reasonable suspicion and on threat of a penalty or sanction. I am struggling to understand the Government's U-turn on this, given the provisions of head 20 of the draft Bill published more than two years ago. This provided for a term of imprisonment of up to five years and would have represented a strong deterrent to those who fail to be vigilant with regard to child protection. Head 20 also envisaged the imposition of a significant monetary penalty. The Minister seemed to suggest this was international practice and cited New South Wales as an example.

I have examined the provisions of other common law jurisdictions with regard to failure to follow child protection guidelines. In Canada, which is often referred to as the most progressive jurisdiction for child protection legislation, the fine which can be imposed ranges from $2,000 to $50,000. Most Canadian provinces impose a prison term of six months, with a term of two years in Ontario. Prior to 2008, Ontario did not impose a prison sentence but is now doing so. The evidence, with the exception of New Zealand, seems to suggest a penalty is the most effective way of ensuring compliance with child protection. Another example is Florida in the United States, which introduced a similar penalty to that introduced in the original heads. Some states, such as California, provide for greater penalties for second offenders.

This legislation is about safety of children. Let us consider other safety legislation. The crucial difference between this legislation and health and safety legislation is the fact that health and safety legislation imposes prohibitive penalties. Why do organisations which fail to provide a health and safety statement face penalties while organisations which fail to provide child safety statements do not? What signal does this send out? What does it say about our commitment to child protection?

My greatest fear was confirmed by the Minister's statement at a recent Oireachtas committee meeting that she did not wish to overburden the system. As with so many of her decisions, quality legislation is being sacrificed in the interest of securing savings, a far cry from "never again" in the aftermath of the reports published in recent times. We should not be limited in how we respond to child protection concerns by questions of administration.

At an Oireachtas committee meeting before Easter, the Minister spoke of a suite of legislation already in place, but the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act deals with a much higher threshold. It caters for people who deliberately and recklessly conceal information, not those who might have suspicions of abuse or neglect and fail to report them. The Minister also publicly stated this issue was dealt with by professional bodies under misconduct procedures. This is simply not the case as no professional body can impose a penalty in excess of that provided for by law.

My concern is the real reason the Minister does not wish to overburden the system is a resource issue. Let us face it: the Bill does not only need the power of sanction to be effective, it also needs resources. I am concerned that no additional resources are being provided to implement the measures in the Bill. The introduction of reporting of allegations of child abuse must be backed up with adequate resources to handle all cases of suspected abuse. There cannot be a properly functioning child protection structure in the State if our system cannot handle allegations that are reported to the authorities. It is crucial that the Child and Family Agency is sufficiently resourced to assist parents and professionals understand and support the implementation of the law. This concern is shared outside the House. Tanya Ward of the Children's Rights Alliance pointed out the legislation would be more robust if greater resources were made available. The fact is we will fail vulnerable children throughout the county if we allow this legislation to pass into law without a robust regime to back it up. Mandatory reporting can only achieve its objective of protecting vulnerable children if there are enough trained workers to handle suspected abuse cases.

When mandatory reporting was introduced in the Australian state of New South Wales, there was a sixfold increase in the number of reports made. We cannot end up in a situation whereby additional reports clog up an already overburdened social work system, leaving vulnerable children at risk. The Minister must outline what additional resources she plans to deliver to ensure that every single allegation is thoroughly investigated and that every single suspected victim gets the care he or she needs. She must also commit to HIQA inspections to ensure full compliance.

There is much in the Bill which I endorse, such as the best interests of the child being the paramount consideration. No one can disagree with the requirement of all organisations providing services to children to have a child safeguarding statement which details policy and procedures on child protection. The Children First interdepartmental group to promote compliance and monitor implementation by a variety of Departments is welcome, as is the obligation on the authorised person in the Child and Family Agency to respond in writing to all reports made.

I reiterate that provisions without enforcement are meaningless and note that under the proposed Bill, specific individuals have a legal duty to report child protection concerns to the Child and Family Agency. However, what happens if they fail to so do? Nothing. Does the Minister agree that all children, regardless of their early education or child care setting, should have the same protection provided by this legislation?

The Bill includes early years services as defined by the Child Care Act 1991 and includes any work or activity which consists of the provision of care or the supervision of children. Schedule 2 includes both providers and the staff members in preschool services as defined by the Child Care Act 1991. However, for as long as most childminders remain outside the scope of the aforementioned Act, the Children First Bill cannot be applied to them. This is problematic, as children in home-based child care, that is with childminders, should receive the same protection as those in centre-based child care. Childminders may care for children for long hours, often all day, in the childminder's home, typically with little supervision or support. There are major child protection concerns regarding the lack of regulation and the absence of requirements for Garda vetting or child protection training for most childminders. At the same time, as individuals who have close and frequent contact with young children and their families and who play a large and active role in children's daily lives, childminders are well placed to identify concerns in respect of children's welfare at home. To ensure all children have the same level of protection, regardless of the child care setting, would the Minister consider amending the list of mandated persons in Schedule 2 in order that it explicitly includes paid childminders who are not relatives?

I will bring forward amendments to try to improve and strengthen the legislation and hope the Minister will consider them positively. Chief among them will be the reintroduction of meaningful sanctions for those who fail to comply. Moreover, the Minister is on notice that unless she accepts sanctions, she and her Government colleagues will be obliged to vote against penalising those who fail to comply. When this law was first envisaged, it was designed as a line in the sand - that is, something that would end a culture of turning a blind eye to child abuse and other child protection issues. The Minister has stated that she would undo the neglect of previous years and Administrations with this Bill but she has under-delivered. I acknowledge that she has been meeting the NGOs and various interested parties, from some of which I quoted earlier. Hopefully she will listen to them and will use Committee and Report Stages of the Bill to provide what was promised. I certainly will provide her with the opportunity to so do.

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