James Reilly (Dublin North, Fine Gael) | Oireachtas source

Section 14 provides that certain professionals and other persons in specified occupations, as listed in Schedule 2, are mandated persons for the purposes of the Bill. The section sets out the circumstances where a mandated person is required to make a report to the Child and Family Agency.

Amendment No. 2 proposes to impose a criminal sanction on a mandated person who fails to report concerns or allegations of abuse to the Child and Family Agency. Taking legal advice into account and the need for a reasonable and proportionate approach, it was decided that it was unnecessary to impose a criminal sanction on a mandated person in the overall context of meeting the policy objectives of the proposed legislation. There were very serious concerns that unfounded and misplaced fears of attracting a criminal sanction would result in over-reporting and thereby place the child welfare and protection system under even more pressure. Some low level or inappropriate reporting could have the unintended consequence of delaying the prioritisation of higher risk reports if the ability to process reports was compromised. International comparisons indicate that this, in fact, has been the case in other jurisdictions. For example, in New South Wales the introduction of mandatory reporting precipitated a large increase in reporting rates but with little or no improvement in child protection overall.

There are a number of administrative sanctions or consequences available if it transpires that a mandated person has failed to comply with his or her statutory obligations. The option to report a mandated person to his or her employer or the fitness to practise committee of his or her professional regulatory body remains open to the Child and Family Agency in a case where it transpires that a mandated person has failed to make a report. The Bill includes a link to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The Child and Family Agency will be a scheduled organisation under that Act and in cases where a mandated person has failed to make a report, the agency, following an inquiry, will pass this information to the National Vetting Bureau.

The Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 makes provision for the reporting of relevant information to the Garda. This legislation will operate in tandem with this Bill, when enacted. A person who fails to report to the Garda under the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 could be subject to criminal sanction. I envisage opportunities for administrative arrangements to support the implementation of the legislative requirements; for example, mandated reporting should be incorporated into codes of conduct and contracts of employment for relevant persons. As things stands, many providers of children's services consider a failure to report to be a disciplinary matter.

For these reasons, I am not accepting amendment No. 2. However, as stated previously, I will be keeping the operation of the Act under review and if it transpires that mandated persons are failing to comply with their legal obligations to report, I will be prepared to revisit the issue.

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