Mary Henry (Independent)

I welcome the Minister and, while it is unfortunate to be obliged to do so, I welcome the commission, which he has set up briskly. I am glad he appointed Judge Yvonne Murphy chairman of the commission. Unfortunately, she probably feels that she has too much experience in child sexual abuse having often been obliged to deal with it in the courts. I am also glad Archbishop Diarmuid Martin is so concerned and has been so proactive.

It is regrettable that the tribunal will hear only a sample of representative cases but the Minister makes a good point about how long this could go on and how we could have parallel tribunals. The Ferns inquiry began with approximately three cases and ended up with 30. In the Dublin diocese, there are approximately 67 cases. If an expansion similar to that which occurred in the case of the inquiry were experienced, there could be hundreds of cases. Many people will feel aggrieved and will protest outside Leinster House wondering why their cases were not heard. While the Minister has requested a report within 18 months, he said that the commission is open-ended. I am sure, therefore, that the commission will judge what comes before it carefully.

The Ferns Report made shocking reading. It was one of the worst things I have ever read and I have read all the reports on child sexual abuse. As Senator Jim Walsh said, it is important that we examine the recommendations and that the health services should be more proactive but there is a problem. In the Monageer case, the laudable principal of the school reported the situation to the South Eastern Health Board and a female GP examined seven of the ten children, listened to their stories about the sexual abuse they had suffered on the altar of the church and thought they were credible. The community care officer was then called in and he did the best he could. Unfortunately, it looked as though they had acted ultra vires because the legislation does not cover intervention where abuse occurs outside the family. For example, the report, at page 49, states:

It is possible to identify clearly the scheme of the 1908 Act from the power which it conferred on the courts. That power was to remove a child from parents who had neglected him or her and to entrust the child to the care of a state agency or a fit person approved by the Court. The powers conferred by the 1908 Act afforded no protection to children who had been abused otherwise than through neglect or abuse by parents or carers. The Child Care Act 1991, had a more pro-active orientation and conferred a greater obligation on Health Boards in the following terms ... [It then quotes the terms.]

The report lists the terms involved and then, on page 50, states:

Just as in the Act of 1908, the Child Care Act 1991, expressly recognised that it was the right and duty of parents to care for their children and that it was the right of children to be cared for by their parents. Intervention by any State agency could only be permitted and required where it was established that parents had failed in this duty to the serious detriment of their child.

On page 51 the report outlines that the Children Act "reiterates the principle that the State should only intervene in the welfare of a child where the family fails to ensure it" and on page 52 it states:

The implication of an imposition of such a duty on the Health Board [this is to intervene when the abuse is outside the home] without any express legislative powers is an issue which the Inquiry believes should be carefully considered by the Legislature. Guidelines, either statutory or regulatory would appear necessary in order to clearly delimit the Health Boards' obligations under Section 3 of the 1991 Act.

It is important that we bring forward legislation at once to ensure that community care officers are in a position to intervene in such situations. We introduced the Protection of Persons Reporting Child Abuse Act 1998, which provided immunity from civil liability to any person reporting child abuse, reasonably and in good faith, to designated officers of the health board or to a member of the Garda Síochána. While this gives protection to the employees who report child sexual abuse, it is not sufficient according to Mr. Justice Murphy. In the recommendations on page 257, regarding the South Eastern Health Board, when the areas were being examined, it is pointed out:

[The] Health Board has no power of intervention except in places where sexual abuse is occurring in a family situation. As far as the Inquiry is aware, the South Eastern Health Board has not attempted to repeat the intervention which it made in the Monageer case and which in the view of the Inquiry was, although well intentioned, ultra vires.

It is unfortunate that it may not have been in a position to intervene in other cases although it knew it was going on. The report states further:

It is the view of the Inquiry that the powers and duties of the Health Services Executive in this connection should be regulated by the express terms of primary or secondary legislation and not by inferences drawn from general obligations imposed on these bodies.

On page 267, the report states:

The inquiry has identified in Chapter Six of the report the shortcomings in relation to the ability of the Health Services Executive to intervene properly in relation to child sexual abuse perpetrated by a non family member without the connivance of a child's parents. The Inquiry recommends that an in-depth study be conducted on the full remit of the Health Services Executive's powers in relation to this issue and that express statutory recognition is given to these powers.

I would be grateful if the Minister pushed those recommendations on because there may have been other situations where health board employees felt they should have intervened by could not do so. The faster we deal with this the better and I doubt it would be difficult to achieve in an amendment to either the Child Care Act or the Children Act. I commend the Minister for establishing the commission so quickly, although it is unfortunate that it will not have a pleasant time reporting.

I heard the Minister comment on perhaps lowering the age of consent in certain cases. When the Sex Offenders Bill was before the House I was unenthusiastic about children having permission to have sex, even if their parents knew about it. Unfortunately, parents do not always work in the best interests of their child. This should be watched carefully. As I remember, if the other partner in sex is within two or three years of the child's age, it is not a crime.