Brian Lenihan Jnr (Dublin West, Fianna Fail)

I am glad the Seanad is holding a debate on this important report. First, I wish to pay tribute to those who came forward to speak to the inquiry to outline the appalling abuse they suffered. Their fortitude in recalling the past and bringing it to light has done a great public service for the people of this country and for the Government and Parliament. They laid the facts in public view and allowed the tribunal team to produce a fine report which outlines what we must do in the future to prevent the repetition of this type of conduct.

The courageous people who spoke about their experiences have offered both the inquiry and the country a disturbing but crucial insight into the nature and scale of the problem and the lasting trauma it can generate. We must remember that the events that occurred in Ferns have affected the families of both the victims and those against whom allegations were made. I hope that, in this debate, the feelings of all those people are taken into account.

I also pay tribute to Mr. Justice Murphy and his team. It is accepted on all sides that they have done an excellent job. The report is of a high intellectual quality and is practical and sensible in its conclusions. It carefully outlines the nature and purpose of the inquiry the team was asked to conduct. The report contains an interesting review of the relevant literature on the subject of child sexual abuse. It also deals with the legal and managerial structures not only of the diocese of Ferns but also of the relevant health and police authorities.

The Government accepts the recommendations of the report in full. The Government, and I on its behalf, condemned in the strongest possible terms the abuse of authority by those who perpetrated these acts in the diocese of Ferns and those who failed to prevent and deal with those who perpetrated these acts. This was a gross dereliction of duty in the protection of children. The Government and the country are appalled, shocked and dismayed at the extent of these allegations. However, our duty in the Oireachtas and in the Government is to ensure that proper child protection practices are in place and operate to the highest achievable standards.

I have taken a number of steps to ensure that the recommendations are implemented by all the bodies concerned and by the wider community. I have requested confirmation from the Episcopal Conference that the recommendations of the Ferns Report will be implemented both collectively and individually. I have also requested confirmation that the framework guidelines are in place in all dioceses. Archbishop Brady, in response to my letter, indicated to me that the individual bishops will communicate with me and liaise with the Health Service Executive at local level.

The Minister for Justice, Equality and Law Reform has finalised his proposals for the establishment of a commission to investigate the handling of complaints and allegations of child sexual abuse against clergy operating under the aegis of the Roman Catholic Archdiocese of Dublin. Due to the sensitivity of the subject and because of the child protection implications, the Minister also consulted with me about the drawing up of these particular terms of reference.

In addition to the inquiry into the Roman Catholic Archdiocese of Dublin, paragraphs (vii) and (viii) of its terms of reference empower me to refer to the commission any Roman Catholic diocese in the State that has not established the structures or may not be operating the procedures set out in the 1996 guidelines, or any similar document, satisfactorily. Paragraph (viii) also empowers me to refer to the commission the question of whether any particular diocese is not satisfactorily implementing the recommendations of the Ferns Report.

In any event, I intend to request the commission of inquiry to check and assess this issue following the completion of the work of the Health Service Executive. It is important that the people are given the assurance that the recommendations of the Ferns Report have been implemented, not just by the Health Service Executive, in which I have great confidence in this matter, but also by the commission of inquiry. I will ask the commission to confirm this in an authoritative manner upon the conclusion of the Health Service Executive's work. I am not saying I will not invoke any of the many other powers granted to me if required to do so. In such an event, I will notify the tribunal of any diocese which falls within the terms of reference.

The Health Service Executive has been requested to make contact with the individual bishops in the Roman Catholic Church as a matter of urgency, to monitor child protection practices and ensure compliance with the recommendations of the Ferns Report. I have also requested the Health Service Executive to launch a nationwide publicity and awareness campaign on child sexual abuse. The National Children's Office will assist the executive in ensuring the campaign targets, and is relevant, to children and young persons.

I welcome the statement by the church authorities that they intend to introduce an interagency review group, along the current Ferns Report model, in all areas. This is one of the crucial recommendations of the Ferns Report. The interagency review group is a simple device where the bishop, or more often his delegate, must liaise on a regular basis with the relevant representatives from social services and An Garda Síochána. Such review groups must exist in every diocese. Members will often have heard the Minister for Justice, Equality and Law Reform explore the intricacies of Canon Law in this area. The key practical solution to this is that all information must be shared with the civil authorities at the earliest stage possible.

The interagency review group's function is that when any information points a finger of suspicion, the assessment of that information is not made through Canon Law but is brought to the attention of the relevant civil authorities. They, in turn, will make an assessment about it with the bishop ordinary or his representative. If this system is not in place, we will be having these arcane discussions about Canon Law for some time to come. A practical device on the ground is needed to ensure information is assessed at the earliest possible stage and appropriate action is taken. This was the key recommendation of the Ferns Report. From reading the report, one sees how that particular agency assisted Bishop Walsh in his apostolic administration of the diocese of Ferns.

I have requested the Health Service Executive to convene meetings of this group and to record and maintain its records, in line with the inquiry's recommendations. The Health Service Executive is to report as soon as possible after initial meetings with the bishops have been held and liaison arrangements have been put in place. The Department of Health and Children embarked on an in-depth study of the Health Service Executive's powers regarding third party child sexual abuse. This will be followed by legislative proposals as required.

Two distinct legal issues were raised by the Ferns inquiry. The first was whether the Health Service Executive had the power to investigate any case of third party child sexual abuse. Prior to the publication of the report, I was concerned that there would be any doubt about the powers of the executive in this regard. Some doubt was cast upon it by a careful reading of the report. I immediately sought the advice of the Attorney General on this point. He advised me that it falls within the executive's statutory remit to investigate such matters. That said, further clarification is required and legislation will be introduced to ensure this. However, I do not want Senators to be under the illusion that we do not have that power at present.

A second recommendation of the report surrounded the question of what concrete action the Health Service Executive can take following an inquiry where the abuse was alleged to have been perpetrated by a third party. Where such abuse takes place within a family context, the ultimate option is to take the child or children into care. However, when the abuse has been alleged to have been perpetrated by a third party, there is no effective sanction available to the Health Service Executive to address the matter. The report recommends that in such cases, the executive should have power to seek an order to restrain a named individual from having unsupervised access to children. This is a far-reaching recommendation but I agree with its principle. However, it requires some elucidation which will take place with an appropriate amendment to child care legislation.

I have already announced a national review of compliance with the children first guidelines by State bodies and NGOs, to be driven by the National Children's Office in partnership with all relevant Departments. The children first guidelines were published in 1999 and it is essential the Government can stand over its own procedures in protecting children.

Several recommendations contained in the Ferns Report fall within the specific responsibilities of the Minister for Justice, Equality and Law Reform. The report recommends the Legislature should consider the introduction of a new criminal offence relating to engaging in conduct that creates a substantive risk of bodily injury or sexual abuse to a child or failing to take reasonable steps to alleviate such risk. This is not an offence that will be directed at the perpetrator, which is already on the Statute Book, but an offence directed at an individual creating a substantive risk of bodily injury or sexual abuse to a child. This is a far-reaching proposal but the Government and the Minister for Justice, Equality and Law Reform have accepted it in principle. An appropriate amendment will be introduced on Committee Stage of the Criminal Justice Bill to address this recommendation.

The report recommends that legal aid, irrespective of means, be available to both complainants and priests against whom allegations are made where the cases are not determined by the criminal courts. Members who have read the report will have noted that few cases lead to a criminal conviction or even proceedings. In many cases, the Director of Public Prosecutions may not be satisfied that the quantum of proof available is sufficient to pass muster in a criminal trial. There may also be an unwillingness on the part of witnesses to put themselves through the trauma of full-scale criminal proceedings. Whatever the reason, not all of these matters end up in the criminal courts. An appreciable number has gone before the civil courts. As Senators are aware from the report, there were settlements for undisclosed sums in various cases. The report wisely took the view that those who wish to invoke civil proceedings should get every assistance from the State in doing so. Hence the recommendation on legal aid. The Minister for Justice, Equality and Law Reform accepts the recommendation in principle but he believes it requires further examination. In particular it is not clear whether it can be restricted to victims of clerical sex abuse as distinct from victims generally. He is examining the legal aid provisions with a view to giving effect to this recommendation.

The report also made recommendations that documents relating to child sex abuse should be given legal privilege. This recommendation is under examination by the Department of Justice, Equality and Law Reform in consultation with the Attorney General.

The report contains a number of recommendations relating to Garda procedures. The Minister for Justice, Equality and Law Reform has forwarded a copy of the report to the Garda Commissioner who will consider it and take on board its recommendations. The Government has decided to refer the report to the Director of Public Prosecutions to see if any other matters relating to criminal proceedings may arise.

Responsibility for services for the care and protection of children rests with the Health Service Executive. The services available to children who are victims of sexual assault, and to their parents, include professional services such as medical and nursing, social work, child and adolescent psychiatry, clinical psychology and family support services. For adults who suffered abuse as children, the national counselling service is now well established throughout the country and is in a position to make every assistance available.

In 1998 a working group to review child abuse guidelines was established to prepare revised guidelines aimed at improving the identification, investigation and management of child abuse. The revised guidelines, Children First, the national guidelines for the protection and welfare of children, were published in 1999. Approximately €9.5 million has been provided for the implementation of these guidelines. The HSE has used this additional funding to create the infrastructure necessary to support full implementation of the guidelines. This has included the appointment of implementation officers, training officers, information and advice officers and additional social work and administrative staff. A national review of these guidelines is under way.

The first Ombudsman for Children, Ms Emily Logan, was appointed by the President in December 2003. The Ombudsman for Children has a function set down in legislation to advise any Minister on the development and co-ordination of policy relating to children. One of her crucial functions is to deal with complaints made by or on behalf of children and to promote the welfare and rights of young persons.

The publication of the Ferns Report brings the debate on mandatory reporting into focus. A draft White Paper on mandatory reporting of child abuse was prepared in 2000 and was circulated to all Departments. There have been significant developments since the preparation of the White Paper, for example, investment in the implementation of Children First and child protection services, the appointment of advice officers in the HSE and the extension of child protection guidelines to education, sporting and other sectors.

The purpose of Children First is to create a culture where mandatory reporting takes place. To some extent it has addressed the problems which gave rise to the calls for mandatory reporting. The Oireachtas also enacted the Protections for Persons Reporting Child Abuse Act 1998 which has allayed people's fears of being sued. In view of the comments and observations made in the preparation of the White Paper and in consultations with the Attorney General, it was clear that there were complex legal issues which needed further consideration.

We must be careful about the use of the term "mandatory reporting". Everybody would agree with the principle that reporting should be mandatory and that there should be a culture at every level, whether in the school, workplace or wherever adults interact with children. Where there is a suspicion of abuse it should be mandatory to report such suspicions. Those who call for mandatory reporting do not just call for that, however, but for the creation of a specific statutory offence, a criminal offence on the part of those who do not report. Many professionals argue that in creating that offence those who have an urge to confide information will become more reluctant to do so. A perusal of the Ferns Report shows just how many complainants do not want An Garda Síochána to become involved. If a regime of mandatory reporting is introduced to criminalise those who do not wish under any circumstances to report there will be problems. That is one of the complex issues that has given rise to a reluctance to introduce mandatory reporting.

The report does not recommend mandatory reporting to that extent but goes close to it by recommending a specific offence. The Minister for Justice, Equality and Law Reform is to bring forward proposals to criminalise any person who "wantonly or recklessly engages in conduct that creates a substantial risk of bodily injury or sexual abuse to a child". That offence would criminalise the principal of a school, a bishop or another senior officer of the church who stood by while abuse was taking place. In the Ferns Report, of course, the brave principal did not stand idly by.

While the debate on mandatory reporting has resumed with the Ferns Report, the report contains within its recommendations a possible solution in the creation of the offence of reckless disregard. That sets a standard with which professional people working in this area would not be uncomfortable but which preserves the necessary element of confidentiality for the victim, who must take centre stage in our consideration.

I and the Government would like the culture of mandatory reporting to be established but not on a legislative basis. People are now more readily prepared to report concerns about child abuse to the relevant authorities and to pursue those authorities to ensure that the complaint is dealt with. I do not see the advantage of criminalising an individual for keeping their word to another individual who does not want a complaint to be taken any further. Enough damage has already been done to such an individual without their being concerned that the person they have entrusted with information could be the subject of criminal proceedings. It is a difficult issue and my mind is open but that is my provisional conclusion.

Garda vetting is a subject which has been canvassed in recent years. The vetting unit itself was only established a few years ago and in the initial rollout applied to the area of unsupervised access to children in the health sector and some limited categories in the education sector. I have been concerned about this for some time. In 2004, I persuaded the then Minister for Finance to sanction the additional staff required to provide a comprehensive service to all employers seeking information about employees who will have unsupervised access to children, as well as to voluntary organisations in the same position. The Minister made the necessary sanctions prior to his departure in July 2004.

I announced in September of that year that the Garda vetting service would be made available to all sectors and appointed an implementation group comprising representatives of the various Departments and containing the chief executive of the Irish Society for the Prevention of Cruelty to Children, Mr. Paul Gilligan. I am grateful to the implementation unit for the work it has done. The Minister for Justice, Equality and Law Reform decided that the unit should be decentralised to Thurles where the building has been secured and where the new staff will commence duties in a matter of days.

The next focus will be on expanding the operations of the vetting unit from its current levels on a phased basis. The education sector is of particular importance in this regard where our initial target is to ensure that from the new academic year all new entrants into the sector obtain the negative clearance from the vetting unit. Following that, all the existing staff in the Department of Education and Science will have to be vetted. Difficult questions can arise about those who work voluntarily in schools, are involved in the management of schools or assist with sporting activities and all these matters are now under detailed examination in the Department with a view to the full implementation of the scheme.

Garda vetting is also important in the child care sector, for youth organisations and voluntary organisations generally. They too are liaising with the implementation group to examine how universal vetting can be extended in the particular sectors. As a word of caution, the fact that a person has not committed a criminal offence does not provide a guaranteed clean bill of health for that person. Employers must check references and exercise great care. A handful of those referred to in the Ferns Report have emerged with a criminal record, and none would have had one at the time of their relevant employment. We should be careful not to see Garda vetting as a panacea for this particular problem.

The State has a duty as part of any robust child protection system to ensure that the basic facility is available. Computer technology is available to the Garda Síochána, of which the PULSE system is a good example. The vetting unit accesses information from this unit and makes it available. The establishment of a vetting unit is only a basic beginning to the development of a robust system of child protection. The legislative structure will have to be examined further down the road. The implementation group is progressing the recommendations of the working group on Garda vetting, examining in particular the exact sequence of the phased roll-out. The report of the working group can be viewed on the Department's website.

The working group on Garda vetting investigated possible changes to law. The issue of soft information, which falls short of a criminal conviction but points the finger of suspicion at an individual, arises here. In many jurisdictions, data banks and registers of this type of information are being amassed. Difficult legal issues surround the collection and dissemination of this type of information, the indemnification against disclosure and the maintenance of a national criminal record system by the Garda Síochána. These matters are being examined by the Department of Justice, Equality and Law Reform as well as my Department.

The working group on Garda vetting recommended that the Department of Education and Science and the Department of Health and Children could explore the possibility of the development of non-Garda, employment related vetting registers to provide information on those previously dismissed, suspended, moved or made redundant from posts for harming children or vulnerable adults in the health and education sectors. Priority has been given to the extension of the Garda vetting services, but discussions on these proposals must take place between relevant Departments. This could result in legislation. There are complex legal issues involved, particularly on the release of so-called softer information such as allegations and complaints. We must work out legislation carefully in consultation with the Attorney General. An implementation group is examining recommendations and will put forward proposals.

The Ferns Report has had a major effect on the country as a whole. My job, as well as that of the Government and of the Oireachtas is to protect those within our society who cannot protect themselves. This is also the job of local communities and the whole of society. Shortcomings have existed in this regard in the past, but with the measures I announced as a result of the Ferns Report and the developments that have occurred under successive Governments over the past 15 years, we have gone a long way in protecting our children. We cannot be complacent and must continually strive to put in place better safeguards to ensure that the levels of abuse outlined in the report can never recur.

In the words of the Ferns inquiry team it is essential that "there will be mechanisms and procedures in place which will enable victims promptly to report the abuse in the confidence that they would be believed and the certainty that appropriate action would be taken to terminate the wrongdoing". It is the Government's duty to ensure that proper child protection practices are in place and in operation. This is a key element of the objectives that must be met to ensure that the shocking and appalling events described in the report are addressed fully and, as far as is humanly possible, prevented from happening in the future.

In a debate of this type on the Ferns Report, my function is to outline the position of my Department, other Departments and the Government. Senators will avail of this opportunity to air other issues that strike them in the report. I do not seek to confine debate to what I have discussed in my introduction. It is important from the Government's point of view to place on record the practical action that is being taken. The report will give rise to a substantial national debate on other issues and I look forward to hearing the comments of Senators.