Thursday, 10 May 2012
Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Second Stage (Resumed)
I welcome the Minister to the House and I also welcome the Bill. I compliment the Minister on introducing the legislation in the Seanad on Second Stage.
Senator Norris made a point about Members sharing time but he is on the wrong track. The matter was raised within the CPP as a housekeeping issue and it was not a Government edict or mandate. I concur with my colleague, Senator Bacik, that the matter can be reviewed, if necessary. My view is that a senior spokesperson with a particular portfolio or brief should not share time because it does reflect well on the Seanad.
I broadly agree with the Minister's comments on the Bill. The legislation went before the all-party Oireachtas Joint Committee on Justice, Defence and Equality and interesting submissions were received from a number of groups. It is a worthwhile exercise and is a departure by the Government that Bills come before the Houses for vetting by the related committee. That is a good thing.
As I do not wish to go into the full details of the Bill and wish to avoid repeating what the Minister has said, I have instead a number of queries for him. I have raised the following issue on a number of times in the House, not alone in this Seanad but also in previous ones. When is it proposed to hold the promised referendum on the rights of children? It is a central plank of this plethora of Bills governing the rights of children and the protection of children and vulnerable people. In the previous Seanad the then Leader of the Opposition and now Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, along with others, was very animated on many occasions about the delay in holding the referendum. I examined the Bill as a former chairman of the All-Party Committee on the Constitution many years ago and I am deeply concerned that it has taken a lot longer to hold a referendum than was ever envisaged by not just the last Government but also the preceding one. I urge the Minister for Justice and Equality when he attends Cabinet meetings to endeavour, as far as possible, to bring the referendum forward. I have made the point on numerous occasions that if a referendum on children's rights takes place, their rights will be upgraded as opposed to being protected within the family. The referendum should stand alone and not be confused with other referenda, which would create problems in the minds of the public.
I read the Ryan report and most of the Cloyne report and the abuse was appalling. The Murphy report was another report on abuse. There is a perception, probably a wrong one, that all the abuse of children, especially the sexual abuse, was primarily related to religious orders and priests. As the Minister will be aware, statistics show that fewer than one in ten of abuse cases were perpetrated clerics. Yesterday or the day before, I read that a former cleric was jailed for the persistent violation of a vulnerable person. That is welcome news.
What is the Minister's view on the interesting proposal by Cardinal Seán Brady that a cross-Border investigation be conducted into the Brendan Smyth affair?
If there was a cleric who epitomised the villainy, thuggery and serious nature of continuous child abuse, it was Fr. Brendan Smyth. I was in this House when that saga caused the collapse of the then Fianna Fáil-Labour Party Government and it is now, to put it mildly, affecting the position of the Catholic Primate of All Ireland, Cardinal Brady. I saw some merit in the Cardinal's point that an investigation would give context to the despicable scenario of clerical child abuse that has been ongoing for several decades. However, it flies in the face of our religious beliefs such as "suffer little children who come unto me".
It is important to note that there are certain exceptions and defences. I read in a number of newspapers - the Minister referred to it as an obsession - about the protection of what a priest would be told in a confessional. Under existing legislation, the angle is covered, irrespective of what is included in the new legislation. The protection, moral or legal, of a priest who is told about a matter in a confessional is sacrosanct, but this legislation opens up the issue.
I read with interest that in the course of the joint committee's public hearings it was stressed the legislation should not have unintended consequences for victims, which would be ultimately self-defeating in reporting abuse. As the Minister probably read this, I would like him to elaborate on the measures he has taken in the Bill to address this concern. There is no doubt about the importance of this legislation; it is part of a jigsaw of several Bills.
It is hard to believe in 2012 that we are legislating to protect vulnerable adults and young people. It is a sad reflection on our society. I note that the Irish Society for the Prevention of Cruelty to Children recently launched the findings of a survey of child protection. It found that 87% considered there was not enough information available on child protection and welfare issues. This is staggering. Of those surveyed, 57% said they would be nervous or unsure about reporting, or would not report a suspected case of child abuse or neglect. That is worrying. It was considered by 83% that children's rights were not protected to the same extent as adults' rights. A balance must be struck. When the all-party Oireachtas committee on the Constitution was addressing the need for a children's rights referendum, the importance of striking the right balance was emphasised. We do not want situation where a bright, belligerent teenager would invoke the Constitution to make life hell for his or her parents.
Fianna Fáil welcomes the Bill. While I cannot envisage it, I would not rule out tabling amendments on Committee or Report Stages, but we wholeheartedly welcome this legislation. I hope it will be an extra weapon in the legislative armoury available to protect vulnerable persons, particularly children.
I welcome the legislation and thank the Minister for his balanced and nuanced presentation. Senator Denis O'Donovan has noted how surprising it is that in 2012 we still have to deal with such tragic circumstances. It is a sad reflection on Irish society that a significant minority of adults and, even more tragically, a significant minority of children have suffered or continue to suffer abuse. That is the reality with which we must deal politically. At the other end of the age spectrum, many vulnerable elderly persons face difficulties, in their home environments or in care settings. It is appropriate that these circumstances be part of our response to this issue.
Second Stage offers us the opportunity to make some general comments, but this will be an interesting debate when we reach Committee Stage. I am glad the Bill has been introduced in the Seanad because it is a challenge to us to face the difficult questions and table constructive amendments on which I am sure the Minister will engage with us.
The primary purpose of the Bill is to close a loophole. We are not suddenly starting from scratch; the legislation has to be taken in conjunction with that which will be brought forward by the Minister for Children and Youth Affairs which we all hope will significantly improve the lot of children and vulnerable adults. The Bill will not, of course, entirely solve the problem of the sexual abuse of children, a cancer in society. Strong new laws are needed in this regard, but the law on its own will not change society. We must think and act beyond the law.
The hearings at the Joint Committee on Justice, Defence and Equality were interesting. I compliment the Minister on the concept of bringing legislation to the committee, holding hearings and teasing out issues arising from submissions. On this occasion there were a number of written presentations and four oral presentations by the Rape Crisis Centre, One In Four, CARI and an individual. What was most interesting about the submissions and dialogue with the groups represented, particularly the three advocacy groups, was that none of them claimed to have all the answers. I thought that was a healthy approach; they had doubts even about what we were trying to do today. They highlighted the need for defence clauses such as those the Minister is introducing. I had expected them to demand certain measures, claiming they would solve the problem. It was reassuring, however, to see they had as many doubts as we had. Our engagement was very positive and the fruits are visible in the legislation, particularly in the possible defence clauses.
It was also helpful in broadening the debate that each and every one of the presenters on the day in question reminded Members, as did Senator Denis O'Donovan and the Minister, of the inconvenient and uncomfortable truth that in the vast majority of cases the abuse of children occurs in the family or is perpetrated by a neighbour in the community. That is shocking. The headlines portray a different story - a problem for the church, the swimming club or the GAA club - however, in the majority of cases the abuse does not happen behind the alter, in the swimming poor or at the sports field but much closer to home. This is a problem that requires a number of responses, as well as substantial investigation, including psychological investigation.
Our colleague, Senator Rónán Mullen, made an interesting observation at the hearings in recalling a television advertisement on abuse which, as I recall it, was carried on South African television. He inquired whether we should run a campaign challenging people to contemplate the possibility of abuse taking place in the home. We have had graphic advertising of the effects of car crashes, smoking and alcohol abuse. Cases of abuse are happening all over the country but remain hidden, yet people know it is happening. We must challenge the public mindset to wonder about some of these cases of abuse. While graphic advertising would be uncomfortable and inconvenient, it might be necessary.
I wish to comment on the defence clauses that will apply in certain circumstances to family members and the medical and counselling professions. From an initial reading of the legislation, it appeared that if one was aware of abuse, the decision was simple - one had to report it. I understand the reason these opt-out clauses are necessary, but we must go into the matter in greater detail on Committee Stage.
The Minister has been very balanced on the question of sacerdotal privilege, the seal of the confessional box. He pointed out that in the criminal offences identified in the Ryan, Murphy and Cloyne reports on clerical sex abuse, none had arisen from tales told in the confessional box. The Bill does not provide for an opt-out clause for information heard in the confessional box. We will also have an opportunity on Committee Stage to address the issue of protection of religious freedom under the Constitution and how this might have an impact on the Bill, but the Minister's comments should be reassuring to those who might have had concerns on religious grounds.
I welcome the provisions dealing with vulnerable adults. In addition to the shocking cases of child abuse, we have had shocking revelations of the abuse of the elderly in a few nursing homes. I trust the provisions of the Bill will prove helpful and complement the legislation on whistleblowing.
The offences listed in the Schedules to the Bill differ. In Schedule 1 covering offences against children, one set of offences is listed, whereas in schedule 2 there is a shorter list of offences against vulnerable adults. Will the Minister outline the reasons for this discrepancy?
I look forward to constructive engagement on Committee Stage. Concerns have been expressed by people of all shades of opinion about aspects of the Bill, most of which we can satisfy. Others might think the Bill is a panacea that will solve problems and make them go away, but, sadly, that is not the case. The Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012, in addition to the proposed Children First legislation and Children First guidelines, will not solve all of the difficulties, but it will prove helpful. We must get to the bottom of the weird and warped thinking which causes many of them. This will require a major campaign of education and examination. I thank the Minister for being present to discuss this important Bill and look forward to the Committee Stage debate.
I welcome the Minister and commend him for initiating the Bill in the Seanad. The seriousness of the subject matter cannot be overstated and I assure him of my full support.
When I look at Schedule 1 offences against children, including murder, rape, incest, child trafficking and child pornography, the gravest offences against the bodily integrity and well-being of a child, I find it incredible that we need legislation to ensure they are reported to the Garda Síochána. However, we do need the legislation, as we know following the Ferns, Ryan, Murphy and Cloyne reports that there was the systematic abuse and exploitation of tens of thousands of vulnerable children in State and church-run institutions. We also know it from the current discourse on the calls for Cardinal Seán Brady's resignation. This is not only about clerical and institutional abuse, as the Minister referred to children knowing the perpetrators and Rape Crisis Network Ireland has clearly shown that 80% of childhood sexual abuse victims are abused by someone known to them, including immediate family members, relatives and family friends. Some 12% are abused by a person in authority, that is, a teacher, a coach or a priest; 3% by strangers and 5% by others. In effect, 92% of perpetrators are known to the family or trusted by the child. That is the reality. We need only look at the Roscommon child abuse case in 2009 and the chronic and spectacular failure of social services to intervene decisively over a 15 year period, even in the face of overwhelming evidence of serious abuse and neglect. We know there has been a serious failing on the part of ordinary Irish citizens to speak about the abuse and mistreatment of children, where it is known to have occurred. The Amnesty International report, In Plain Sight, in responding to the Ferns, Ryan, Murphy and Cloyne reports, provides an excellent insight into this collective social failing which was well summarised by the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, when she launched the report last September. She said:
At every turn, Irish people kept their mouths shut out of deference to state, system, Church and community. When they should have been unified in fury and outrage they were instead silenced, afraid even to whisper a criticism against the powerful.
While we cannot focus only on the past, we cannot ignore its relevance in contemporary Ireland.
The executive director of Amnesty International Ireland, Colm O'Gorman, has said "the past only becomes history once we have addressed it, learnt from it and made the changes necessary to ensure that we do not repeat mistakes and wrongdoing". As a children's rights activist, I am heartened by the dedication and commitment of the Minister and his Government colleagues to ensuring a dedicated and effective system of child protection is put in place in Ireland. There needs to be a move away from the rhetoric of the past towards making the changes necessary to ensure we do not repeat the mistakes that were made when wrong-doing took place previously.
The Departments of Justice and Equality and Children and Youth Affairs are at the coalface of the process of introducing the suite of legislative reform that is necessary to strengthen child protection and protect vulnerable people. I welcome the two-pronged approach being taken to ensure the full reporting of offences committed against children, or suspicions of such, will be required under this Bill and the Children First Bill. It is vital we debate both Bills constructively to ensure they are as robust as possible.
I wish to raise some points of concern with this in mind. As I do not have the privilege of being a member of the Joint Committee on Justice, Defence and Equality, I did not have an opportunity to elaborate on my concerns at that forum. I would like to mention the excellent and useful Bills digest that was provided to us by the Oireachtas Library and Research Service yesterday.
This Bill and the Children First Bill will introduce separate mandatory reporting schemes. As the Minister usefully outlined, there are significant differences between the two schemes. The differences relate to the people who are bound to report offences, the severity of the offences to be reported, the degree of certainty required to activate the obligation and the authorities to whom the people must report offences. My concern relates to the interplay between the two reporting schemes. It is important to ensure people have confidence and certainty about the statutory obligations that are being introduced, as well as about the moral obligations they will have in a scenario that falls outside the remit of either enactment. It must be made very clear to people who fall outside the remit of the Children First national guidance, that is, any member of the public, that any concern they might have about abuse taking place can and should be reported. We need to make that absolutely clear.
The Minister has explained the difference between reporting to the Garda and reporting to the HSE. One of the difficulties with that - it could lead to a lack of clarity - is that the HSE does not provide a 24-hour service seven days a week. Members of organisations have been told that if the HSE is not available, they should report a concern about a child to the Garda. I accept these mixed messages are not of the Minister's making. I am concerned to ensure we are clear about this. First, there is a concern that abuse or Schedule 1 offences will go unreported if people misunderstand the need to know or believe an offence has been committed in order to report it, as distinct from invoking a statutory obligation to report it. There needs to be an understanding of what is meant by know or believe. Second, if people undertake to probe or investigate their concerns, to gain the higher threshold of certainty set out in this Bill, they might inadvertently do damage to the child or vulnerable person in question. I wish to make it clear that I do not disagree with the degree of certainty required in the Bill, but I am concerned the spectrum of offences covered by the clarity provision is very wide and the positive obligation put on individuals to report offences is a significant one. Relevant offences could conceivably range from a person witnessing a section 3 assault on a child or vulnerable person to a person having knowledge of child trafficking or rape.
I understand the purpose and intent of the Bill and the specific scenarios and circumstances it ultimately aims to remedy. In fact, the Bill is applicable to a much broader spectrum of situations. If we are to protect fully the victims of abuse and the rights of individuals who may find themselves subject to prosecutions under the provisions of this legislation, we must consider and address all its potential applications and ensure it is tailored adequately. I do not doubt we will be able to probe this complex Bill on Committee Stage. It is loaded with caveats and exceptions for very good reasons. I am concerned it is not sufficiently understandable and accessible to the public at which is targeted. When this Bill progresses through the various Stages, it will be essential to send a clear message to everyone that it will not be permissible to withhold information on offences against children or vulnerable people.
I reiterate our gratitude to the Minister for bringing the heads of this Bill to the joint committee before initiating it in the Seanad. I understand similar work is being done on the national vetting bureau Bill. We look forward to dealing with that. The Minister, Deputy Fitzgerald, is taking a similar approach as she works on the Children First guidance Bill, the heads of which will be considered by a joint committee. These measures, coupled with the referendum that is promised later this year to strengthen children's rights in the Constitution, represent a watershed in the value that is given to childhood in Ireland. For far too long, we have examined these issues in an historical context. The Ministers, Deputies Shatter and Fitzgerald, have clearly demonstrated the Government's clear commitment to moving away from the rhetoric of the past and towards using the full rigours of the law to realise children's rights now and in the future. I thank them for that.
I welcome the Minister to the House. I also welcome the introduction of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. Like others who have spoken, I am especially pleased it has been introduced in the Seanad. I thank the Minister, Deputy Shatter, for initiating the legislative process in this House. It is appropriate in light of the tradition of thoughtful debate in the Seanad which is perhaps less adversarial than the Lower House. We have heard contributions from people who have real expertise in this area. I listened with particular interest to Senator van Turnhout, who has worked in this area and has extensive knowledge of it. I thank the Minister for facilitating the committee hearings on the heads of the Bill. As a member of the Joint Committee on Justice, Defence and Equality, I felt privileged to be able to engage in that part of the process and to hear directly from some of the groups working on the front line of child protection.
We have had a good programme of initiating legislation in the Seanad in this session. The Minister, Deputy Hogan, initiated the Electoral (Amendment) (Political Funding) Bill 2011 in this House. The Minister, Deputy Coveney, initiated the Animal Health and Welfare Bill 2012 in here. Last night, the Minister, Deputy Reilly, accepted a Bill from Senator Crown that will ban smoking in cars when children are present. I am delighted such good practice is being continued with this legislation, which I welcome. As the Minister, Deputy Shatter, said, this Bill is part of a series of legislative measures aimed at strengthening this country's child protection laws. It aims to close the legal gap that exists in terms of failure to report offences. The need for this Bill is all too clear. Other speakers have referred to the Ryan report, the Murphy report, the Cloyne report and the recent new revelations about Brendan Smyth. We are already only too well aware of the horrendous litany of abuse he carried out.
I should declare an interest as somebody who has, in a legal practice, represented survivors of abuse in the courts and before the Residential Institutions Redress Board. I have had direct experience of the testimonies of some survivors of abuse.
I am glad to hear the report on this Bill which was produced by the Joint Committee on Justice, Defence and Equality has fed into Government policy and helped shape the Bill before the House. The oral hearings also gave us a real insight into the practical issues faced by those who work in child protection. The Minister has said the vetting bureau Bill will be introduced shortly. During the hearings on that Bill, the committee was impressed to hear about the extensive vetting procedures already in operation, for example, in sporting organisations. We could learn from those sectors that are almost ahead of the curve in terms of the legislation. I am conscious a different committee - the Joint Committee on Health and Children - is dealing with the Children First Bill.
I would like to reflect on the substance of this legislation. I have written in the past about the difficulties that were caused when the old common law offence of misprision of felony was abolished. The crime of failure to report sex offences was excluded when a partial replacement for that offence was provided for in the Offences Against the State (Amendment) Act 1998. I recall the debate that took place when that legislative change was being made. Counsellors and social workers were very concerned about the unintended consequences that mandatory reporting laws might have. At the time, I thought the Offences Against the State (Amendment) Act 1998 was an odd home for a new offence that did not relate solely to offences against the State. The Minister referred to section 176 of the Criminal Justice Act 2006 which served to fill the gap somewhat. It is clear a gap continues to exist, however. We hope it will be covered by this Bill.
I accept what the Minister said about the need to ensure the Bill is not retrospective. It may well cover acts of abuse that occurred in the past, but it will only cover any failure to disclose from the time the legislation comes into force. We are aware a culture of silence existed in the past. The report of the Joint Committee on Justice, Defence and Equality mentions that this culture enabled abusers to continue to abuse for a long time. Other speakers have referred to the revelations about Brendan Smyth and the personal role of the Primate of All Ireland in that regard. It is difficult to understand how people can fail to take personal and moral accountability or responsibility for the heinous consequences that flow from failure to report disclosures of abuse. It is particularly sad to learn from the brave survivors who have come forward that they disclosed at the time to prevent other children from being abused. The failure to report these disclosures upwards through the hierarchy resulted in the abuses continuing for many years. I cannot understand how someone who was complicit in this matter can fail to take responsibility for such complicity.
On the report of the Joint Committee on Justice, Defence and Equality, Senator Denis O'Donovan referred to the key theme to emerge in the course of the joint committee hearings when members stressed the need to ensure legislation would not have unintended consequences or be self-defeating in respect of the reporting of abuse. We also highlighted, as the Senator pointed out, the high levels of intra-familial abuse. Senator Jillian van Turnhout referred to this issue and the study carried out by the Rape Crisis Network. It is worth noting that intra-familial abuse refers not only to abuse by family members but also to abuse by those trusted by families. In the case of Fr. Brendan Smyth, as well as children, he frequently groomed their parents to trust him to the extent that they would leave their children with him. Trusted family friends and carers of children who are not family members are covered by the concept of intra-familial abuse.
One of the issues highlighted in the joint committee's hearings was the concept of reasonable excuse and what constituted a defence for those who failed to report. This is perhaps the most complex issue that arises. I was struck during Senator Jillian van Turnhout's contribution that the text of section 4, which I read with great care, was not very accessible. I do not know how it can be made more accessible. The Minister explained the section very well and the explanatory memorandum also makes it clearer. However, its complexities require a careful reading of the section if one is to understand fully the defences that apply in different circumstances. Clearly, there is a need for different scenarios to be covered in different ways. For example, subsections (10) to (15), inclusive, cover the issue of disclosures made by counsellors, social workers, doctors and others in their professional capacity. I am pleased to note that rape crisis centres may be covered under subsection (13).
Two questions came to mind as I read section 4 following the joint committee hearings. First, where disclosure of abuse is made to a family member or other person and he or she makes a report to the Health Service Executive, should this be included, if not as a defence, as a factor to be taken into account? The Minister helpfully set out the link between the legislation and the Children First guidelines, which I am pleased to note will be placed on a statutory footing. Should the link be made explicit within the terms of section 4? This question was discussed during the joint committee's hearing and we did not arrive at a settled view on the matter - I am not clear about it. As the Minister noted, it is stated in the Bill that the reporting obligation to the HSE is separate from other reporting obligations. I wonder if a more explicit link should be made between the different reporting obligations.
The second issue that arose was that of ongoing risk. If the person to whom abuse is disclosed is aware that the abuser or alleged abuser may still be actively abusing and that other children or vulnerable persons may be at risk, should this knowledge not override any stated wishes of the victim or, if the victim lacks capacity, the parent or guardian? I am thinking again of the Fr. Brendan Smyth case. If there is an ongoing risk and it is clearly apparent to the person to whom disclosure is made, does this knowledge override the wishes of the victim? This issue arose in the joint committee's hearings and it observed in its report that this theme had emerged. Page 9, for example, reads: "It was also submitted that, where there is an on-going risk to that child/vulnerable adult or others, the victim's wishes should not amount to 'reasonable excuse'".
On capacity, an issue addressed in section 4, I am glad the Minister provided a comprehensive explanation for choosing the age of 14 years. This issue raises a more general question about the need to codify the law on sexual offences, specifically sexual offences against children. Difficulties and anomalies arise in our laws on sexual offences against children in respect of the age of consent. Legislation provides for different ages in respect of a child's capacity to consent to sexual intercourse. While this is a separate issue, I wonder whether a link should be made.
I look forward to a considered debate on Committee Stage on some of the more complex issues involved, particularly the section 4 set of defences which will be key to the working of the legislation in practice. None of the points I have made detracts in any way from the strong welcome my colleagues and I give to the Bill. The legislation is of major importance and a progressive step forward in trying to tackle the dreadful culture of silence around child sexual abuse that has been prevalent in this country for much too long.
I am glad the Acting Chairman said unshared time because I object very strongly to the ruling that has been made on this matter. As the House is aware, I consider the decision to be violently undemocratic and I am astonished it was agreed to by the Committee on Procedure and Privileges. It could not have gone through that committee without at least the complicity of the Government. This procedure has been adopted from Stormont, is not used in the other House and is not part of the tradition of this House.
My colleague, Senator Feargal Quinn, wished to contribute to the debate and probably would have done so in a manner with which I would not have agreed. It is a disgrace that his contribution will be missing from the debate because I have not been allowed to share time with him.
To move on and be positive, I congratulate the Minister, Deputy Alan Shatter, on the Bill, in particular his clear and cogent speech. While he and I do not agree on all aspects of life, in this matter I find myself in general agreement with him. He did a good job in clearly explaining the subject matter of this complex legislation. It was extremely unfortunate that somebody purporting to represent a group of priests stated he would not take this from any Government Minister but especially the Minister. As I stated privately to him, if that remark was intended as a reference to his religious background, it was absolutely disgraceful and should be publicly withdrawn.
We have many reports on child abuse, including the Cloyne, Ryan and Murphy reports. I have spoken on every one of them in a detailed and forensic manner and in the most judicious way I possibly could. This has not, however, prevented everything I have said being taken out of context. I sympathise very much with the Minister's comments on media reports because I remember speaking on the 1998 Bill and again in 2006. During a recent election what I said in those debates was taken out of context. Practically every single Member who spoke at the time agreed with what I had said because my contribution was principled and clear. We are in a sophisticated area when we deal with this type of issue. Nobody is in favour of child abuse, unless there is something wrong with him or her. There is no point in me making that clear again because certain sections of the media find it is not profitable to express that point of view or reflect my saying it.
The case of Cardinal Brady has been raised. To a certain extent, what I would call the Brady syndrome is addressed in the Bill. Having seen the face of the cardinal on television, I could not help but feel a certain compassion for him because he is caught between his position and that of Rome. I believe he would love to resign, but I do not believe he will be allowed to do so. Nevertheless, my compassion was seriously tempered by the television programme I saw in which an extraordinarily courageous middle aged man gave details of what had taken place when he was a child. When he reported sexual abuse by one of the first child abusers, Fr. Brendan Smyth, the response was to swear him to secrecy. That is a perversion of justice and a criminal offence. The matter is that serious. He was separated from his parents, introduced to a room in which there were adult males dressed in a strange uniform present and asked about intimate parts of his body, whether seed had emerged from him, if he had enjoyed what had happened to him and, if not, why not and if he had engaged in the same activity with other boys or adult men. This constitutes child abuse in its own right. However, I continued to feel compassion because, according to my ethics and beliefs, one must feel compassion as all sinners are capable of redemption. I found that to be the most profoundly disturbing element.
There has been a development in the debate. I remember the earlier debates in the House on mandatory reporting. Some of the professional organisations were concerned because they considered they might be placed in an invidious position of violating confidence because sometimes the victims who went to them said they last thing they wanted was to be reported. That presents a difficulty. Sometimes, however, during therapy and professional mediation this attitude changes. The Minister has addressed this issue admirably in the Bill.
I turn to the question of vulnerable adults. I remember, for example, cases in which blind and elderly persons were also the victims of sexual assault in various institutions. There is also the question of capacity. Let me adapt David Copperfield by Charles Dickens, in which the lawyer, a Mr. Jackals, or somebody else says, "Let us suppose..." Let us suppose there is somebody who is just on the margins, with a very mild mental dysfunction, but who is an adult and sexually active and repeatedly engages in sexual activity with another adult. One can imagine such a hypothetical case, but I am not imagining it because I have encountered such a case. It is a very delicate and dangerous issue and it is dangerous for anybody, even in political life, to speak about such a case. The Minister is right to provide for limited defences for persons charged under the Bill, for persons such as a parent, guardian or medical profession acting in the interests of protecting the health and well being of a child or vulnerable person.When the Minister was reading his script, I marked it for "further explanation". He then, very convincingly, gave it. I remember a period during which the Garda would not interfere; it would state it was a family matter, as if incest was tolerable inside a family and the sexual abuse of children was a matter that could legitimately be conducted. I remember fighting against this in the House and believe we were in a minority on issues such as, for example, the Stay Safe programme. It was I who introduced the guardian ad litem clause in order to protect children. I am glad the Minister has said victims cannot be guilty of an offence if they choose not to report. That is both wise and humane.
There is also the issue of the seal of the confessional in respect of which a difficulty appears to have arisen. The Minister has dealt with it conclusively. He has stated: "It will continue to be a matter for a court before which a person is prosecuted to determine whether there is a particular privilege and whether it applies in the circumstances of a particular case." There has been no such case. Much of the hysteria has been drummed up by certain sectarian interests. Let us deal with the real world, in speaking about which I was slightly amused by one issue, the discrepancy to which Senator Ivana Bacik referred in the explanatory memorandum. Under its interpretation, "child" means a person under 18 years of age. In my part of Dublin I would not care to call anybody aged 17 years and three quarters a child because I know the answer I would get. There are margins of appreciation because the Minister argues a person aged 14 years must be referred to in certain sections of the Bill because he or she is capable of giving evidence under oath. There are very complex issues, but, by and large, the Minister has dealt with them admirably.
Children will be protected more after the Bill has been enacted. Every Member, from whatever ethical, religious or political background they come, wants the welfare of the vulnerable to be at the forefront. That is a principle I have pursued all my life, although when I have done so I have often been deliberately and grossly misinterpreted and misrepresented by the media and political interests. I am glad of the opportunity to express my clear view on the matter.
Children will be protected more after the Bill has been enacted. Every Member, from whatever ethical, religious or political background they come, wants the welfare of the vulnerable to be at the forefront. That is a principle I have pursued all my life, although when I have done so I have often been deliberately and grossly misinterpreted and misrepresented by the media and political interests. I am glad of the opportunity to express my clear view on the matter.
I welcome the approach being taken with the Bill, the heads of which were published, following which there was a public consultation period which gave the Joint Committee on Justice, Defence and Equality an opportunity to invite submissions and hold hearings. Although I am not a member of the committee, I have read its report. The committee provided the organisations working with vulnerable persons an opportunity to express their views and it is clear from the final report that the hearings helped it to benefit from their expertise and gave the Minister an opportunity to feed into the report. I hope we can look forward to more legislation being initiated in this fashion.
All of those who presented to the committee have welcomed the Bill which they recognise as important. Many have said it is overdue. The sensitive issue of children and their possible engagement with the criminal justice system is a consistent theme throughout the Bill which I am confident provides for balance, particularly on the issue of disclosure as it affects families, parents, guardians, health care professionals and support organisations offering counselling support to victims.
It was clear in the hearings that the use of the words "reasonable defence" or "reasonable excuse" could be prone to different interpretations. The Minister has acknowledged this and attempted to make a clear statement on how various issues would be dealt with. No doubt, they will be teased out further on Committee Stage. I refer to the word "defence" used in section 4. A defence can be used if a person, at the request of a victim, does not report an offence to the Garda or where the victim does not have the capacity to form a view on disclosure. Where the offender is not a family member, a parent or guardian can, if he or she views it to be in the best interests of the child, state the offence will not be disclosed. This can considered to be covered by the term "reasonable grounds". Where the offender is a family member and it might be deemed that it would not be appropriate for a parent or guardian to act, a medical practitioner can decide that the information should not be disclosed to the Garda. However, the Minister has made the point that there is still an obligation under separate legislation to report the matter to the Health Service Executive.
Counsellors considered a victim might not avail of support services if a report to the Garda was required to be made. In all cases the health, well-being and survival of the victim are of the utmost importance. Rather than focus on the issue of defence or issues to do with having a "reasonable excuse" not to inform the Garda, it is important to remember that the clear intent of the Bill is to protect children and vulnerable adults from the crimes listed in the legislation, including rape, sexual assault, murder and false imprisonment. The Offences Against the State Act 1998 provides that it is an offence to withhold information on serious crimes. However, sexual offences were excluded. Hence this Bill ensures that there is no doubt but that anybody who believes that a serious offence has been committed against children will have to report it to the Garda. Otherwise they will be subject to imprisonment for up to five years. The defences are limited, but they are important.
The focus of this Bill is on protecting our children. We are well aware of recent reports of how children in our society were abused and how society failed those children. I use the word "society" because it is everybody's responsibility to protect our children. We failed to act historically and we are failing to act today in many cases. I hope that this Bill will in some way be an acknowledgement to those victims of abuse and that no longer can individuals in any walk of life turn a blind eye or make a conscious decision not to act to protect children or vulnerable adults. This Bill is an acknowledgement to victims that the State is acting now. We know too well that if an abuser is not stopped, he or she will continue to abuse. The hurt and the scars that individuals have to bear for life will continue. This purpose of this Bill is to protect victims and future victims. Institutional abuse has been well documented, but we also know that most of the abuse happens within families and within the circle of trust. That is what we have to face up to. I am sure there are many situations where family members would remain silent, especially if the perpetrator is another family member. It is not good enough and it has to be stopped. The clear message in this Bill is going towards the 80% of those victims who have been abused by somebody known to their family. This Bill is a very important statement. It is for everybody in this country. There will be no way of protecting individuals or thinking that everything will be alright. The sexual abuse of any child or vulnerable adult is a crime. We need to ensure that we put a stop to it and that there is no equivocation as to people's responsibility in this area.
I am one of eight Members of these Houses who is also a member of the Council of Europe. At a meeting of the Council of Europe's social, health and family affairs committee two weeks ago, I was asked to submit a report on what Ireland is doing in the area of mandatory reporting. I was very pleased to be able to report to that committee on this Bill and on the Children First legislation. Both Bills were brought before this House on the day I submitted my report. It was an extremely important time for this country, in light of the reports into institutional abuse in particular. It was a very important opportunity for us to report to the Council of Europe on what we are doing in this area. The steps we are taking mean that we are leading the way vis-À-vis the other 47 members of that council.
I welcome the Minister to the House and I welcome the Second Stage debate on this Bill. I welcome it because as I have said before in the House, I am concerned about the distortion that is taking place on human rights. In places like the UN and in other international fora, it is no longer about human rights, but adult rights. This will help balance the situation in favour of children, and I welcome that. Many people here have spoken about the heinous crime of child abuse and the enormous effects it has on the victims, many of whom have been driven to extreme actions as a consequence. The majority of crimes in this area unfortunately occur within the family circle, be it family members or friends of family and so on. Incest has unfortunately been with us for centuries, and society now sees clearly the damage that is done and recognises that we need to have a full armoury available within the legal apparatus to ensure that it is prevented.
One aspect which has gone out of vogue for discussion is that of paedophilia. It is a condition that some would see as an illness, although I am not inclined to agree with that. However, it is generally recognised that paedophiles are very exploitative and manipulative people. I remember much discussion 25 years ago about rehabilitative measures to correct the process. There is no focus on that now, although we should try to get some focus on it. I am not sufficiently expert in that professional field to say whether it is an area in which we could have results. However, the debate should give some consideration to that line of thinking.
Senator Bradford made a good point that this issue tends to be hidden within society. There are reasons for that. There was an element of shame attaching within families. There was conflict as to whether the child was believed and the protection of other family members who may have been perpetrators. I have seen instances where families have been divided right down the centre as a consequence of this issue, which is so sad. Senator Bradford stated that we need some kind of advertising or educational programme to create awareness of the issue. I found some currency in my thinking for that, but I would offer a caution. I have had experience of people who were victims in the past and who dealt with it in their own way without any professional assistance, especially in recent decades when we have had many reports and high profile publicity on the issue. These people have found that much of what happened to them has come back and tormented them. There is a balance that needs to be struck. On the other hand, it has to be exposed, given the terrible consequences of paedophilia and the manipulative approach that paedophiles generally take.
It is not just in the family. We have seen many high profile cases involving people who deal with children, whether it is in sports clubs or swimming clubs, boy scouts or girl guides or whatever else. It is important that those who are involved in those organisations also have an awareness to detect where these crimes are being committed.
Much of the focus is on the Catholic Church nowadays, where some heinous abuse took place, where there was a total lack of awareness of the consequences over the decades, and where the management of these issues was certainly deficient as we look back on it. I was struck by the Vatican's response to the Taoiseach's statement on the Cloyne report. We get so much material and documentation that not everything we get is read. The Congregation for the Doctrine of the Faith, under the leadership of the then Cardinal Ratzinger in 2001, introduced the motu proprio arrangements.
Subsequently, they were clarified and strengthened. It is fair to say that within the church now, the procedures and the template in place, especially the zero tolerance for priests who offend and who are then dismissed from the priesthood quickly, are to be welcomed. There was an excessive emphasis on due process, which is part of the legal structure. However, from the point of view of the church it is important that this is done. We should recognise that many of the procedures in place are superior to those the State has in place and should be considered. The problem arises when it comes to administering these procedures. Human beings such as ourselves are involved and it is down to the application and the commitment of the people who administer them to do so appropriately.
I will finish with a point on the seal of confession. I was interested in the comments of the Minister on this matter. I have strong views on the preservation of the seal of confession. Earlier this year I was in Vienna. I entered a church in Petersplatz and picked up a postcard. It showed a very nice sculpture of St. John of Nepomuk, who was killed by Wenceslaus, King of the Romans. He was King of Bohemia as well. He killed him because he was concerned that his wife, the queen, may have been having extramarital activities. He had the saint in question drowned in the Vltava River in Prague. The saint is regarded as the first martyr of the seal of confession. I do not want any Irish martyrs of the seal of confession.
There are some cases which support the idea that the seal of confession should be preserved within the judicial system. I understand the Minister takes a different view but it is something on which we should have clarity. There is too much intrusion by states in the West infringing on the whole area of conscience. We must balance this with the entitlement of people to hold religious views and to have these views protected by the State. There is no issue in practical terms because if someone has committed the crime of paedophilia, it is easy for the priest within the confessional to make it known clearly what he must do. I imagine we will return to the issue on Committee Stage and perhaps tease it out a little more. However, I have been somewhat reassured by the comments of the Minister in this regard.
I welcome the Minister. My contribution will not be as colourful as that of Senator Walsh. We seem to be a nation in which the culture of secrecy pertains, mostly when it comes to matters of a sexual nature. We are all aware of a certain former Taoiseach who was engaged in certain extramarital affairs. This shows the type of society we were, in which everyone knew but no one was prepared to say anything. This is one of the things which stands before us when we are debating the withholding of information on offences against children and vulnerable people. In the past and in recent decades as a nation we have walked away from situations in which it has been common knowledge in certain societies in the country, including small villages and towns and larger cities, that people knew what was going on but they did not act. Several reports have pointed out that part of the reason was that people did not understand exactly how to act or what to do. As a nation we must accept we have a culture of privacy whereby we are not really prepared to engage in other people's private lives. This is something we must address. I welcome the Bill. I believe it will make the matter of when people are supposed to engage and what they are supposed to do clearer for us.
I do not believe the Bill puts an undue burden on ordinary members of society. The threshold or bar is not high. One must have actual knowledge and not only a suspicion. The information must be material in securing the apprehension, prosecution and conviction of a person who commits an offence and there must be no reasonable excuse not to disclose information. The Minister has stated there is no obligation to inform the Garda with regard to any vague rumours, innuendo or suspicions.
This brings me to what could be loosely termed a criticism of the Bill. Concerns have been expressed by the Ombudsman for Children on the matter. On foot of the Bill she has called for significant resources to be put into certain aspects of our social services and the Garda Síochána. It has been brought to our attention through the Ombudsman for Children that we run the risk of undermining the legislation by not putting in place sufficient resources. The mandatory reporting of criminal sanctions in New South Wales, Australia, was abandoned after the authorities became overloaded with reports. I accept the Minister's clarification on what is not to be reported. As Senator Bradford noted, the legislation will require an information campaign. It will also require significant additional resources to be put into support services.
Excluding the retrospective element in the legislation is necessary. I have read several comments by organisations on the matter and I realise there are constitutional issues with regard to whether one can make an offence retrospective. On balance I believe this is the best way to approach the matter.
The Minister has made clear in the matter of defences that sacerdotal privilege is a non-issue. I would prefer if those in the media applied themselves to some of the more serious aspects of the Bill rather than the usual approach of rehashing the issues of clerical abuse and the confessional. Perhaps the Minister can clarify one concern about the defences. An exemption is provided for someone who himself has been the victim of abuse. A significant proportion of the offences which come under the remit of this legislation, especially those concerning children, involve people in a family circumstance whereby they may not be the only member of the family being abused. It is possible for someone to be a victim and also a witness to the abuse of another individual within the family circumstance. How will this be treated in the legislation as drafted?
Some of the concerns about the legislation raised by organisations working in this area reflect the fact the bulk of these offences occur within families. The view is that the culture of secrecy in families is just as strong as in the cases of clerical sexual abuse. These organisations have suggested that non-offending family members should not be obliged to report crimes. In particular, one parent should not be obliged to report an offence committed by the other. I believe the Minister has covered this in the Bill as drafted. However, it is important when one is dealing with children that there should be no doubt about the responsibility of a parent to the most vulnerable person, that is to say, the child. The loyalty of a spouse towards another spouse versus their obligation to their child, in law at least, should not be an issue when it comes to protection. I am very welcoming of the fact that this is part of a wider basket of Bills which will be brought before us which are not designed to protect children only. We all fear old age and not being in control of our destiny. While we have dwelt on the impact of the Bill on children, it will also have an impact on a growing number of people who, for the sake of argument, are suffering from illnesses such as Alzheimer's disease. We must not lose sight of this.
I welcome the Minister back to the House and thank him for getting me onto the programme "The Week in Politics" last week. It is not often a Member of the Seanad makes his or her way onto it.
Everybody in the House would accept that the State and many institutions within it have failed children for many years. We are aware of a litany of failures in child protection and a number of high profile reports have shown how many institutions have failed children. I see the Bill as part of the resolving of some of these issues and making sure the State's responsibility to protect children is rock solid and robust. For that reason, I broadly support and welcome the Bill. It is something for which my party called in the past. It is very important that no individual feels offences committed against minors do not have to be reported.
The Bill has been long awaited. I assume, however, that the Minister would agree legislation alone will not be a cure for offences against children. We are very clear that the Bill must proceed alongside wholesale reform and the adequate resourcing of the social care structures, social workers and the Garda to enable them to do their jobs effectively. Like anything else, there must be a multifaceted approach.
A number of people have contacted me about their concerns about the Bill, including about reporting. It is a matter of balance. If the Government manages things correctly, it should not be problematic. We are examining the detail of the Bill and if we have amendments, we will table them as it progresses through the Oireachtas. We have a minor concern about including provisions relating to the Offences Against the State Act. Given our position on that Act, our concern does not relate to the intent of the provisions but rather the use of the Act. The purpose of the Bill is to establish an offence of withholding information when a person has knowledge of a specific offence being committed against a child or a vulnerable person. A child is defined as a person under 18 years, while a vulnerable person is a person who is suffering from either a mental, intellectual or physical disability that leaves him or her unable to sufficiently guard against abuse. When enacted, it will be a criminal offence to possess knowledge of a specified offence committed against a child or a young person that would aid in the apprehension, prosecution or conviction of another person for that offence and not to report it as soon as is practicable to the Garda.
The Bill includes a provision for the inclusion of attempting or conspiring to commit offences. A number of people have asked whether a child could be convicted for failing to report a crime against him or her. A child against whom an offence has been committed shall not be guilty of an offence. A child may not be prosecuted for a failure to report his or her abuse and this defence will continue to apply until he or she reaches adulthood. The provisions also apply to vulnerable persons. We support the inclusion of these provisions.
Another issue of concern which was the subject of many e-mails I received involved the breaking of the confessional seal by clergy and penitent confidentiality and whether there would be a constitutional block. On balance, the right of children to be protected outweighs clergy-penitent confidentiality. There is no constitutional block. Article 44.2.1° of the Constitution is relevant in this regard. It reads: "Freedom of conscience and the free profession and practise of religion are, subject to public order and gravity, guaranteed to every citizen". Priest-penitent privilege is not absolute in many other jurisdictions. In some common law jurisdictions clergy are obliged to report crimes, even when evidence is given in confession. New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas and West Virginia all disallowed the use of clergy-penitent privilege as a ground for failing to report suspected child abuse or neglect in any context. The Catholic Church is present in all these states and complies with the civil law, or it ignores it and remains complicit in the abuse of children when someone confesses to it. Common law precedents seem to indicate privilege as it applies to the confessional is not absolute.
I support the Bill and the Minister who is willing to reform the law to make sure the State lives up to its responsibility to protect children. However, we have a long way to go and there is lot of healing to be done. We cannot correct or right a lot of wrongs visited on many children throughout the history of the country. We all accept this. Our responsibility now is to make sure we introduce legislation that will sufficiently and robustly protect and defend children against abuse. Any Bill brought before this or the Lower House will be fully supported by my party.
I welcome the Minister and the Bill. The Cloyne, Murphy and Ryan reports have clearly demonstrated the need to strengthen the law on the disclosure of information on offences against children. We did not need these reports to tell us that, as everybody knows we need legislation to protect children. It is not acceptable that there can be or was a cloak of secrecy surrounding the commission of such offences.
Much of the media attention on child abuse is focused on abuse by clergy, rightly so, but it is important to note that national statistics show 80% of childhood sexual abuse victims are abused by someone known to them, including immediate family members. Everybody should take note of this. Some 12% are abused by persons in authority, 3% by strangers and 5% by others. The clergy were held in high esteem, but they have let people down. A lot more was expected from people they respected.
The introduction of mandatory reporting requirements within a jurisdiction tends to increase the level of community awareness of child abuse, which is good. In many instances, it also results in substantial increases in the numbers of reports made to child protection departments. If there are inadequate resources available, services may be overwhelmed. However, the problem of substantial increases in the numbers of reports is more likely to become an issue under the Children First Bill 2012 which the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, is introducing. With the Minister, Deputy Alan Shatter, she should be facilitated to ensure a sufficient number of social workers will be in place to ensure that Bill, when passed, will be implemented properly.
Criminalising the withholding of information on offences is a version of the old offence of misprision of felony. This offence was effectively abolished in Irish law when the distinction between felonies and misdemeanours was abolished in 1997 in the Criminal Justice Act. This meant that there was no longer a general duty under Irish law to inform. From the reports and debates I read dating from 1996, it was expected that some provision providing for mandatory reporting of child sexual abuse would be placed on a statutory footing. In one of the debates the phrase "in the near future" was used. The measure is being introduced 16 years later. I commend the Minister for introducing it in his first year in office on foot of the reports we have received. Excuses were made. Some reports were published some time ago, but others are more recent.
I have no problem quoting from the Offences Against the State (Amendment) Act 1998, with which Senator David Cullinane seems to have a problem. It contains the phrase, "for an offence of withholding information in relation to serious offences". However, it specifically excludes information on sexual offences. Questions have been asked as to why people have not been prosecuted under the Act. That is the reason and it is necessary to introduce this Bill. Serious offences covered by this Act were committed in the past. People, even within the Senator's party and with regard to the disappeared, might see fit to say it is a serious offence and come forward with information to protect vulnerable people. It should all be included. We are talking about vulnerable people under any Act. It was the Senator himself who mentioned the previous Act. That is why it is necessary to ensure all vulnerable people are protected. I also welcome section 3, which relates to vulnerable adults. That is why I include all vulnerable adults in the country.
There has been too much emphasis on confession. All the reports we have read show that all the issues were raised outside the confessional. The question of confession rarely came up. It is a secondary issue.
I refer to an incident mentioned in the Cloyne report. The Bishop of Cloyne, through his solicitor, declined to supply a particular document. The Garda report stated the solicitor said the document in question was a church document and therefore confidential. The solicitor also told the Garda sergeant that the bishop would not make a statement "in consideration for the public good and the maintenance of the confidentiality of the church". That is different from the confidentiality of the confessional. I am presuming and hoping this law supersedes that because, according to section 15.28 of the Cloyne report, the document was not disclosed. I hope the Bill covers such a situation. This is different from the seal of the confessional and has nothing to do with it. It is about withholding information from a State agency, the Garda in this case, that is mandated to investigate a horrendous crime, such as the rape of children.
I ask the Minister about reporting and the designated person. The Children First regulations established criteria for the appointment of a designated person in each organisation who will be responsible for approaching the HSE. Can the Minister clarify this?
Can the Minister also clarify the position of canon law versus State law. I am aware of a case a priest who took a human rights case to court and assumed it would be heard under State law. The judge ruled that because he was a priest, the case should be heard under canon law and dismissed the case. The Minister, in his speech said the following:
Section 2(4) also provides that the Bill is without prejudice to any right or privilege recognised in law. In that regard, this provision is simply to allow the courts to use their normal discretion in considering issues of privilege.
We all know doctors differ and patients die. Judges' so-called normal discretion must be questioned sometimes. It must be laid down in law that a judge's powers of discretion are few and far between in cases of child abuse, especially with regard to the confidentiality of documents relating to the abuse of a child or a vulnerable adult.
I welcome the Minister to the House and congratulate him on bringing forward this important legislation. It is long overdue. Unfortunately, the 1998 Act did not go far enough. Many people would be behind bars if the obligation to report sexual offences had been included in that Act.
Can the Minister consider the issue of people being informed by a credible source that abuse has taken place in an institution, a family or similar setting? I am sure other Members have received information in such circumstances and I have been in a similar situation myself. The Bill would not have required me to act in that case. Perhaps the Minister could look at that. Reporting by a third party, who has not himself been abused, to a Member of the Oireachtas or a health professional, for example, that he believes abuse is happening or has happened should be covered by the Bill. If this legislation had been in place in 1998, many people who had information would have been prosecuted since then. In the cases I have dealt with, those who came forward with information had often sat on it for many years or even decades. That is most disturbing. When asked to make a report in writing, they refused to do so. As a result, the abuse continued.
Most abuse takes place in the home. A study in the United States has shown that in the case of abuse outside the home, the average number of children abused by a single abuser is 154. In the case of institutional abuse in Ireland, where abusers often have access to children on a 24 hour basis, the number of children abused by a single abuser has been in the thousands, according to the National Board for Safeguarding Children in the Catholic Church. The abuse continued because the people who knew about it, and who should have acted, did not do so because there was no sanction or consequence for them. The case involving Cardinal Brady is recent. If this legislation had been in place since 1998, we know where Cardinal Brady should be now. Abuse continued only because he failed to act.
I accept that a report by a third party who has not been involved in abuse but has a credible belief it took place can be described as hearsay. If I, or anyone else, receives such a report, I am not obliged to act. If we truly believe the report and if we could stop the abuse by our actions, we should put pressure on the person, citing this Bill, to report it. Otherwise the abuse will continue.
On one occasion I received a telephone call from a priest who said he had been asked by his religious order if he had had contact with a public representative in relation to issues within the order. He told me he had received a letter to that effect from his superiors. I asked him for a copy of the letter but he replied that was not possible. I asked if I could see the letter and offered to drive to Cork to look at it. He refused. I said, "There is no letter, is there?", to which he would not reply. There was no letter, but he had credible information. His silence over a long period had no consequence for him. This Bill was not in place and, therefore, he had no reason to act other than to protect children, which one would think any human being would do. We know that in an institution, whether a political party, a religious institution or a company, the whistleblower is the one who suffers. I know the Minister intends to introduce whistleblower legislation.
If this Bill had been on the Statute Book some years ago, many more children would have been saved. People who, out of self interest, refuse to act to protect children would take action if it were in their own interest to do so and if they would go to jail themselves. I am aware that this goes against the law of hearsay. However, if someone goes to a health professional and if he or she has credible information - I accept that this extends the chain and causes difficulties - he or she should be able to offer it to the relevant authorities. I am aware of a number of cases where such credible information was available but where the individual in a position to offer it was not the injured party, namely, the person being abused. I would like the net to be stretched as wide as possible in order to ensure that if people who have information and who do not have the guts to act could offer it to someone who is brave enough to make it known and thereby bring the abuse, which may have been ongoing for some time, to an end. When the legislation is enacted and when people realise the consequences to which it could give rise for them, they will act out of self-interest. For too long, people have remained silent because they were interested in protecting themselves and the positions they hold. This happened at a cost to the children involved.
Some of the issues to which I wished to refer have already been discussed. As a result, I will not detain the House too long. The primary purpose of the Bill is to close an existing loophole in the law. Many of the previous speakers referred to the Ryan, Murphy and Cloyne reports. There is no doubt that these contain a litany of shocking revelations in respect of the sexual abuse of children and the failure to respond to such abuse. As the Minister stated, "It is clear from these revelations ... that if those who had knowledge in the past of sexual offences committed against children had informed the Garda, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators."
Under the Bill, it will be an offence to fail, without reasonable excuse, to disclose information to the Garda. What will be the nature of such excuses? In that context, the Minister referred to "information concerning certain serious criminal offences where such offences are committed against a child or a vulnerable adult".
Senators van Turnhout and Keane referred to the national statistics. It is startling to think that 80% of child sexual abuse is committed in people's homes. I refer here to abuse carried out by family members, friends and neighbours. That is unbelievable. Ireland used to be called the island of saints and scholars - I do not know who bestowed that name upon it - until we were found out. The sexual abuse and violence report, which I read in recent days, indicates that one in five people have suffered some form of sexual abuse. That is an incredible statistic. The report also indicates that 50% of those who are abused do not tell anyone. Imagine how troubled some of these individuals might be.
Perhaps the Minister might be in a position to clarify something for me. I recently read about a former priest who is 61 years of age, who has been laicised and who sexually abused two young boys of 12 years of age some 31 or 32 years ago. In recent weeks, this man was sentenced to 18 months in prison. As far as I am concerned, the sentence should have been ten times as long. For legal reasons, the former priest in question could not be named. I can understand why the young boys concerned could not be named. However, why is it not possible to name and shame predators such as the individual to whom I refer? I would encourage the 50% of people who have been sexually abused and who have not revealed that fact to anyone to come forward and name those who violated or raped them many years ago. They should clear their consciences by telling their stories. I am alarmed that this number of people have not told anyone about what happened to them. I cannot imagine how these individuals must feel at certain times.
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.
The balance from the State's perspective must be to protect children and to rigorously apply our criminal law to those who abuse children. The balance must also be to ensure we do not repeat in the decades to come the horrors of the decades gone where known paedophiles were left free by a number of individuals in authority to perpetrate abuse on children. When their conduct became known, they were moved somewhere else where they continued to abuse and to target children.
The issue is not focused on the confessional but child protection. It is about ensuring those children who have been abused in a family, a home, a club setting, a school, a hospital, an institution or within the remit of some faith organisations are entitled to the State's protection. It must do what it can through legislation to ensure that information that is crucial is furnished to An Garda Síochána by individuals who may have known about such circumstances.
I thank all Senators who contributed to this debate. Any issue I have not addressed in my response can be returned to on Committee Stage. I hope we can take Committee Stage fairly soon and that the legislation can be enacted before the summer vacation. There is an urgent need to put this legislation in place and ensure our children are protected. I thank Senators today for focusing on the Bill's importance with regard to child protection, despite some of the reportage of the legislation. We are trying to ensure we have the best possible legislation in place to protect children, the most effective legislation possible to ensure those who perpetrate child abuse are brought before our courts and that the Garda Síochána has the legislative foundation it needs so it can be as successful as it can be in that regard.