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

I thank the Senators for their contributions and general support for the Bill. We will have the opportunity to discuss it further on Committee Stage. I note that several issues have been raised, some of which I can address today and some of which I will remark on today although they do not form part of the Bill.

The issue of criminal sanctions on mandated persons has been raised. Taking into account legal advice and the need for a reasonable and proportionate approach, it was decided that it was unnecessary to impose a criminal sanction on mandated persons in the overall context of meeting the policy objectives of the proposed legislation. There were concerns that unfounded or misplaced fears of attracting a criminal sanction would result in over-reporting, thereby placing the child welfare and protection system under 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. Indeed, international comparisons would indicate that this has been the case in other jurisdictions, for example, New South Wales, where the introduction of mandatory reporting precipitated a large increase in reporting rates 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 an employer or to the fitness to practice committee of a professional regulatory body remains open to the Child and Family Agency in the event 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, and the Child and Family Agency will now be a scheduled organisation under that Act. 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 has been enacted and provides for the reporting of relevant information to the Garda. This Act will operate in tandem with the Children First legislation. 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 would envisage opportunities for administrative arrangements to support the implementation of the legislation and legislative requirements. For example, mandated reporting should be incorporated into codes of conduct and contracts of employment for relevant persons. As it stands, many providers of children's services consider failure to report to be a disciplinary matter. As has been mentioned by others, I will be keeping the operation of the Act under review. If it transpires that mandated persons are failing to comply with their legal obligations to report, I will be prepared to revisit this issue. I echo the words of Senator Hayden that what we need is a culture of concern, not a culture of fear and a system overrun with reports because people are, perhaps, more fearful for themselves than they are concerned about the child.

Senator Leyden spoke about a punishable offence not to have a statement. The truth of the matter is that we covered this in quite considerable detail on Committee Stage in the Dáil. I made it very clear that the rationale behind this is sound legal advice to the effect that if we were to have a criminal sanction for not having a statement, we would have to have a very comprehensive inspection regime. Senator Leyden will not be oblivious to the fact that this country is only recovering from the most serious financial setback it ever endured and that the resources we have must be used to provide services to children rather than diverted to a complex inspection system. In our current situation it is only proper and right. As time goes by and we have experience of this system, we will keep it under review and modify it.

On the issues raised by Senator van Turnhout, I have already asked Tusla to review its unallocated cases on a countrywide basis and I received the final report of that review late last week. I met Tusla and Mr. Gordon Jeyes. I welcome the report as it gives a comprehensive overview of the position across the services and I am mindful of the scale of the challenge in addressing this backlog, but I am even more conscious that there are children who require a service and I have instructed my officials to advance the case for increased resources in the Estimates budget and negotiations to enable Tusla to address this and other issues of concern. The business case will be worked on.

On childminders not being mandated, the categories of persons set out in Schedule 2 of the Bill will include, on the basis of their professional qualifications and ongoing contact with children, a focus on a small, qualified cadre of mandated reporters which will, based on evidence, improve the quality of reports made to the agency. The receipt by the agency of better quality reports from persons who, by virtue of their training, qualifications and professional experience, are well equipped to recognise harm to a child is likely to have a positive effect on the process of assessments of risk for a child. The list of mandated persons was developed following detailed consideration of the objectives of the Bill and the research paper on how mandatory reporting is dealt with internationally.

As already indicated, the persons included in the list have been selected on the basis that their qualifications, role and professional expertise means that they are aware of the risks to children and their responsibilities in that regard. It is anticipated that reports from these persons are likely to be of a high quality which will assist the agency in carrying out assessments of risk in a more effective and efficient manner. The childminding sector is not homogenous and a wide variety of arrangements, including personal family arrangements, pertain. In that context, it was considered overly onerous to impose a mandatory requirement on such a heterogenous group of providers.

However, it is important to note that while not required to do so under this legislation, any person can and should report any concerns about a child to the agency in accordance with Children First national guidelines which will operate in tandem with the Bill. This position applies to childminders as well as any other person who has contact with a specific child or children, whether in the context of service provision or otherwise.

In comparison, the formal childminding sector, that is, crèches will be covered by requirements relating to child safeguarding statements and mandated reporting. The Senator's concern about protecting this group of children should be alleviated by the fact that there are many other professionals in contact with this group of children, including nurses, who are mandated persons, and GPs. In this regard, the recent extension of GP medical cards to children aged under six should ensure greater contact between this group of children and their GPs who are mandated persons under the Bill. Child safety is everybody's concern. I cannot imagine that any right-minded, right-thinking citizen who saw a child in danger would not take action to protect that child.

Senator van Turnhout also raised some other issues around corporal punishment and her intention to table an amendment. We are currently examining this issue. The State has assured the European Committee of Social Rights of its full commitment to working towards the elimination of corporal punishment, specifically in regard to the defence of reasonable chastisement. We have undertaken to initiate an examination under Irish law to remove that defence. Examining the matter is not a proposed initiative, but rather a work in progress in my Department. We have to ensure that any legislative measures taken are legally and operationally sound. We know this has worked regarding teachers and its broader application is something of which I would be strongly supportive. However, we need to be mindful of the legal implications and, therefore, need to have the advice of the Attorney General.

The Senator also referred to gender recognition. I suggested two amendments in writing to the Tánaiste who did not accept them, but it is open to me to bring in amendments in the autumn in this area to another Bill and I fully intend to do so. I want my Department to make available to children a role and voice in that, through the new participation hub.

I thank Senators for their very constructive comments and I look forward to Committee Stage of the Bill in the autumn.