Alan Shatter (Dublin South, Fine Gael)

I thank Senators for their contributions and for their broad support for what is a very important item of legislation. I also want to thank them for their comments with regard to the procedure we have adopted. One of the first occasions on which that procedure was used was in July of last year, when the heads of the Bill were published and then referred to the Joint Committee on Justice, Defence and Equality in order that Members of both Houses could consider the substance of the legislation in the early drafting stage. This procedure also afforded individuals and those in the broader community with an interest in the measure an opportunity to make substantive proposals to how it should develop. Under the procedure to which I refer, members of the joint committee ultimately had the opportunity to report on the legislation. This has proven to be a very useful and valuable process. I appreciate the fact that Members of the Seanad have recognised this. The same process was also used in respect of the heads of the Bill relating to vetting. Whereas the process to which I refer added to the time it took to publish the final version of the Bill, and also the legislation on vetting, I am of the view that it has led to the production of better legislation, the passage of which through both Houses will probably be somewhat speedier than usual. This is due to the initial consideration given to the Bill by Members of both Houses and the fact that it was possible to tease out any relevant issues at an earlier stage.

I will now do my best to address the various issues raised by Senators. I am conscious that we will engage in a detailed Committee Stage debate. If, therefore, I neglect to mention anything, I hope Senators will forgive me and will raise any relevant issues again on Committee Stage. I will respond first to the points made by Senator O'Donovan, some of which were also raised by the speakers who followed him. In replying to what he said I may, therefore, also deal with matters to which other Senators referred.

Senator O'Donovan asked a very important question with regard to when the referendum on children's rights will take place. I expect it to be held in the autumn. I engaged in a discussion on matters relating to the referendum earlier today. Substantial work has been done in connection with that issue. It is something of a regret for me personally that the referendum did not take place a number of years ago. I was a member of the joint Oireachtas committee which considered the wording that the previous Government produced. The committee in question proposed an alternative wording but, unfortunately, no real progress was made in respect of this. I hope that when the wording to be put to the people in the forthcoming referendum is finalised and agreed by the Government, it will receive the support of those on all sides of the House. Its primary objective is to ensure we finally expressly recognise in our Constitution the rights of children and the importance of protecting the welfare of children. Its objective is also to have a balanced provision which recognises and affords an importance to the role of parents in the upbringing and care of children but which also ensures, on the one hand, that the State can intervene appropriately where children are at risk and afford to them the protections they require, and on the other, that the voice of a child is heard when important decisions are being made relating to him or her and where he or she is of an age and of sufficient maturity to have something of importance to contribute to that process. I am looking forward to the fact we will have a referendum next autumn on this issue. We first have to get over the referendum we are having now. I hope we have a resounding "Yes" vote in both referenda when it comes to people voting.

I agree with Senator O'Donovan that it should be a stand-alone referendum. It is an issue the Government has addressed previously. It is important it is fully debated, that people understand what is proposed, and that there is no opportunity for what is proposed to be misrepresented or for people to be misled into believing the referendum has some unexpected evil intent because they feel it is sprung on them. The intention would be that it would be a stand-alone referendum or, if there is anything else to be put to the people by way of an accompanying referendum, that it would be something so benign and simple but necessary as not to give rise to any great concern or controversy. Certainly as matters stand and as I understand it, the referendum will be a stand-alone one. Final decisions have yet to be made by Government on the wording and the date when the referendum will take place.

Senator O'Donovan and other speakers said, rightly, that while there may be a perception that a substantial amount of abuse has occurred as a consequence of members of the clergy behaving in a manner that is completely unacceptable and abusing children, it is correct that about 80% of abuse is perpetrated by individuals known to children - family members, close friends of the family, next door neighbours - and it is that side of this appalling area of betrayal of children that gets a good deal less coverage in the media than does clerical abuse. If one follows what happens in our courts, however, a substantial number of individuals, both clerical and non-clerical, have been convicted of child sexual abuse. There have been some horrendous cases of abuse within families. The Roscommon case was mentioned. There have been a great deal many more cases than that one. That was a particular case that got a substantial amount of publicity.

In this context and when there is abuse within the home, a speaker raised the issue of the apparent belief that the Bill provides an exemption for one parent from reporting the abusive conduct of the other. There is no exemption of that nature in the Bill. If a mother knows her husband is sexually abusing children, has material information that should be given to the Garda and fails to provide it, that will be a criminal offence under this legislation. We have seen a number of cases go through the criminal courts where it has been clear the father has perpetrated the abuse, the abuse has been known to the mother and she has been complicit. Indeed, mothers have been convicted of related offences for failing to protect their children in these circumstances. We have had occasions when mothers have been the abusers. There is no exemption in that context and it is not intended there would be.

Senator O'Donovan asked my view on the suggestion coming from Cardinal Brady that there should be some sort of cross-Border inquiry into the Brendan Smyth affair. That is not a matter that has been addressed by the Government. I am somewhat puzzled by that call because what is known about that affair and of the failings of the church is known within the church. We are aware of the church's failure to make available documents of importance to Judge Murphy for what has become known as the Murphy inquiry but in fact was the inquiry into the Dublin diocese. Judge Murphy also inquired into the diocese of Cloyne. I myself used the term "Murphy report" for the Dublin report. There was certainly a lack of co-operation by the Vatican in failing to produce documentation. I do not know what purpose would be served at this stage by an inquiry into why members of the church dealt with Brendan Smyth in the way they did, why he was left in communities, why he was moved from one community to another, and why he was moved from one country to a different continent and came back again. The knowledge of all that is within the church. I want to be very clear that if in future it is made known to a member of the Catholic Church or anyone else, or if they know, that someone is abusing a child, and if they have material evidence that should be given to An Garda Síochána and they fail to give it, that will be a criminal offence under this legislation.

What is provided for in the Bill is different from the provisions in the Children First legislation. That legislation envisages that organisations will have what is referred to as a designated person who will be the central person to whom is given information of alleged abuse within an organisation and who will be the person obliged to make a report, be it to the HSE or to the new child protection service, when it is established. The abuse that may be reported in those circumstances may not be such as necessarily always to fall under the provisions of this legislation. It will not of necessity be sexual abuse. It may be abuse of another nature, such as physical abuse, or it may be simply concern under the child care guidelines that a child is being neglected. It may not be an abuse issue, rather a concern about child welfare or child neglect, but in the context of organisations I assume it will be primarily an abuse issue. The designated person will have an obligation to report to the HSE. The Children First provisions do not provide any exemption to an individual who has material evidence to offer the Garda that a child is being sexually abused from giving that information to the Garda. The fact there may be a designated person they could tell does not in any way exclude them from the obligation to inform An Garda Síochána.

There are a series of differences of emphasis and approach between the two pieces of legislation. They are complementary and we are anxious to ensure there is nothing about them that is contradictory. A great deal of work has been done between the Minister for Children and Youth Affairs, Deputy Fitzgerald, and me to address those issues, but this legislation before the House is about ensuring that where an individual has material knowledge of a serious offence having been or being committed against a child or vulnerable adult and such knowledge would assist the Garda in an investigation, that person is under legal obligation to provide that information. If they fail to do so, they commit a criminal offence.

Senator O'Donovan asked what is meant by "unintended consequences" of the legislation with regard to children. We are trying to provide a balance in this legislation. I emphasise that no one has a monopoly of wisdom with regard to it. It is difficult and complex legislation. We are trying to maintain a balance between ensuring, first, that individuals who have material knowledge of children being abused give it to the Garda in order that it can conduct an investigation and, where there is proper evidence, bring the perpetrator before the courts, and, second, to try to ensure where it is known a person is abusing children that not only are they brought before the courts but also, by the intervention of An Garda Síochána, other children are protected from that individual perpetrating abuse on them or the original victim is protected from further abuse. One of the lessons we have learned is that abusers have a proclivity to abuse a large number of victims and also to abuse continuously over a number of years one or two identified victims who are unable to extricate themselves from the circumstances in which they find themselves.

The other objective is to ensure the legislation does not act as a barrier to a child victim of abuse or a vulnerable adult getting whatever assistance, be it medical assistance or counselling or support services, he or she requires to come to terms with the enormity of what has occurred to him or her. We have tried to provide a balance in that regard. With regard to unintended consequences, when we published the heads of the Bill we were concerned to ensure victims who feel vulnerable would not avoid seeking help because they feels they might not be able to cope with having to explain all that occurred to a member of An Garda Síochána, and to ensure we would not create a barrier to victims seeking help. I hope we have achieved that balance in the legislation. It will be very interesting to hear what Members say on Committee Stage. The issue was discussed by those who made submissions to the joint Oireachtas committee.

Senator Bradford, in his contribution, talked about the importance of the Bill and stated it would not totally solve the problem. Of course, it will not. Unfortunately, child abuse has been part of society for hundreds of years. The Bill is just one of the bricks we are putting in the foundations to provide additional protection for children and to ensure those who perpetrate abuse are properly brought before the courts.

Senator Bradford asked why different offences are listed in the First and Second Schedules to the Bill. This is easily answered. Some of the offences detailed in the First Schedule apply only to children while some of those detailed in the second apply only to individuals who suffer from mental incapacity. There are some offences in each Schedule that are identical because they could be perpetrated against children or other individuals, including vulnerable adults.

I thank Senator van Turnhout for what she said and for her support for the Bill. If there is one message that arises, it is that we must end the culture of silence and deference. We must ensure children in the State are protected and that those who have information important to ensuring not only the children's protection but also the bringing to justice of those who perpetrated abuse against them are obliged to furnish that information to the appropriate authorities.

I have answered some of the queries of Senator van Turnhout on the interplay between the Children First guidelines and the Bill. We might tease this out a little more on Committee Stage rather than this evening because I am conscious of time. The Senator made reference to the provision associated with one's knowing or believing abuse has occurred. We believe that is the best formulation for progress. If there is a better one, I will be very happy to hear about it. Knowing or believing means one has material evidence available to one, not that one is acting on hearsay. Senator van Turnhout asked whether this would result in some individuals conducting private investigations. I cannot answer that. If any of us had a serious concern that a child was the victim of abuse but did not have the substantive knowledge required to back up that belief, we might try to find out a little more information about the circumstances of the child in question. There is nothing to stop anybody with concerns telling An Garda Síochána even if those concerns cannot be substantiated. We will not criminalise people for not telling An Garda Síochána about a rumour; that is the difference.

Senator Daly asked what happens if someone tells a public representative about child abuse. What happens is very simple. There is nothing in law at present, nor will there be, to stop a public representative telling An Garda Síochána. If, however, I am concerned about something I am told by somebody else but have no first-hand knowledge of the incident in question, it is open to me to tell An Garda Síochána. If I do not tell An Garda Síochána, because my information is based on hearsay, I will not be criminalised for failing to pass on the information. There is no barrier in the legislation to third parties passing on information from others, but we will not bring prosecutions against third parties on the direction of the DPP pursuant to this Bill for not passing on what is essentially hearsay in the context of the recipient.

Senator Bacik referred to reporting to the HSE and asked whether this could constitute a defence or be taken into account. The Bill does not provide that one's reporting child abuse to the HSE in respect of a serious case where one should have reported to An Garda will, of itself, prevent a prosecution. If, under the child care guidelines, one reports to the HSE a serious incident of abuse, the HSE, under those guidelines, has an obligation to report to An Garda Síochána. It is difficult to envisage someone being prosecuted in those circumstances. It is, perhaps, an example of one having a reasonable excuse, that is, the excuse of having told the HSE. A reasonable excuse could be that one did not go to An Garda Síochána because one told the HSE which, under the child care guidelines, must tell An Garda Síochána. That is the way the child care guidelines may work in conjunction with the legislation.

There is a need to codify the law on sexual offences. We are addressing that issue. I hope to produce legislation in this area towards the end of this year or, if not, in the first part of 2013.

With regard to the issue raised by Senator Walsh and some others about the confessional, the position is quite simple and I am loth to spend too much time on it. The 1998 Act requires that if one has material information about a broad range of offences, one must report them to An Garda Síochána. If one fails to do so, it is a criminal offence. The legislation before us extends these provisions in certain circumstances to sexual offences, particularly sexual offences against children and vulnerable adults. There is nothing in the 1998 Act about giving some exemption in circumstances where information is relayed through the confessional. There is no particular reason there should be some express exemption in this legislation. If there is a privilege in this area, it is for the courts to address. We have already heard this evening in this context that there are particular provisions in the Constitution which qualify the right to freedom of religion, but I want to be realistic in this area. In my opening statement, I said that in a large number of appalling cases of barbaric abuse of children, as documented in the Ferns, Murphy, Cloyne and Ryan reports, and with regard to all the matters we heard about this week and last about Brendan Smith, individuals were told openly about children being abused. There was no suggestion that people were told in the confessional. Perhaps they were but, if so, they certainly have not told anyone. There are a large number of instances in which the abuse of children was disclosed to individuals within religious orders or the Roman Catholic Church and they did nothing. No issue arose as to the confessional. In the period in question, there was nothing to prevent anybody from going to An Garda Síochána.

This State, this Republic, cannot recognise a parallel system of law not enacted by the Houses of the Oireachtas which extends some global exemption to individuals that defies the civil law and leaves children vulnerable to abuse.