Wednesday, 23 September 2015
Children First Bill 2015: Committee Stage
I move amendment No. 1:
In page 5, between lines 26 and 27, to insert the following:“ “emotional abuse” means behaviour (including an omission to behave in a particular manner) that significantly and seriously deprives a child of his or her developmental need for affection, approval, consistency and security and, without prejudice to the generality of the foregoing, includes—
(i) the imposition of negative attributes on a child, expressed by persistent criticism, sarcasm, hostility or blaming,
(ii) conditional parenting in which the level of care shown to a child is made contingent on his or her behaviours or actions,
(iii) emotional unavailability of the child’s parent or carer,
(iv) unresponsiveness of the parent or carer or inconsistent or inappropriate expectations of the child,
(v) premature imposition of responsibility on the child,
(vi) unrealistic or inappropriate expectations of the child’s capacity to understand something or to behave and control himself or herself in a certain way,
(vii) under or over-protection of the child,
(viii) failure to show interest in, or provide age-appropriate opportunities for, the child’s cognitive and emotional development,
(ix) use of unreasonable or over-harsh disciplinary measures,
(x) exposure to domestic violence, and
(xi) exposure to inappropriate or abusive material through new technology, provided that such behaviour or omission to behave in a particular manner results in or is likely to result in significant and serious injury to the emotional, social or psychological welfare of the child.”.
I wish to acknowledge the help that I have had from Dr. Fergus Ryan from the department of law, NUI Maynooth, in tabling these amendments. I have grouped the amendments on emotional abuse and neglect and I wish to start with the words of the American novelist Carson McCullers who said:
The hearts of small children are delicate organs. A cruel beginning in this world can twist them into curious shapes.
It is extremely important that we identify the name "emotional abuse" as a stand-alone form of abuse which, when sustained, has a devastating effect on children's’ lives and on through into adulthood. Emotional abuse is often the first abuse to occur and then escalates into other forms of abuse. We talk about the importance of early intervention and we should not underestimate the message we send by excluding emotional abuse from this Bill.
What message are we giving? Emotional abuse is about control and power. When we look at barring and protection orders containing statements such as "You cannot use abusive language", it makes one think that if we can define this in law for adults why is it different for a child? I have one case I was dealing with where a parent tells the child every day that they were born angry and then wonders why the child, at the age of 12, presents with an anger problem.
In this Bill "harm" includes neglect. Amendments Nos. 1 and 2 read together alter the definition of neglect to include emotional abuse, though only where the emotional abuse significantly and seriously injures the emotional, social or psychological welfare of the child. The definition of emotional abuse is largely drawn from its definition in the Children First guidance, subject to the caveat that behaviour or omission to behave will not be treated as emotional abuse for the purpose of this Act unless it has a significant and serious impact on the child. This is a relatively high threshold which is designed to ensure that minor infractions or subjective differences in relation to best practise in parenting do not become subject of investigation.
The amendment is clearly framed so that only behaviour or omissions to behave that have a significant and serious effect on the emotional, social or psychological welfare of the child are deemed to constitute emotional abuse. The examples given in subsections (i) through (xi) of amendment No. 1, are not exhaustive, they are without prejudice to the generality of the substantive definition and are drawn directly from Children First. It is important to note that a single or isolated incident of any of these examples may not be enough in itself to constitute emotional abuse in the sense in which it is defined in the amendment. These examples are nonetheless useful in helping to identify emotional abuse though they are subject to the caveat that the effects of the behaviour or omission to behave must be serious.
I bring these amendments to the Minister because I have dealt with cases where children have solely been emotionally abused and it has ended up in court and it has been dealt with by the courts. I feel that by excluding emotional abuse from this Bill we are sending a wrong message. In some way we are saying that it does not have the same devastating impact that other forms of abuse can have. That is why I have tabled these amendments.
Go raibh maith agat. I accept the Senator’s bona fides on this, however, I wish to point out that the threshold at which a report is required to be made to the Child and Family Agency by a mandated person is set out in section 2 which is the definition section of the Bill. The requirement is that the mandated person reports harm or risk of harm to a child. Harm is defined as assault, ill-treatment or neglect that is or is likely to seriously affect the child’s health, development or welfare. Harm also includes sexual abuse. On ill-treatment and neglect, the threshold for reporting is there for where the ill-treatment or neglect seriously affects the child’s health development or welfare. Welfare is further defined as including the moral, intellectual, physical, emotional and social welfare of the child.Emotional abuse, while not specifically defined in section 2, is encompassed in the definition of ill treatment, which includes cruel treatment of a child. Accordingly, the definitions included in section 2 encompass the proposed amendments. Also, the threshold for mandatory reporting in the Bill is lower than the threshold proposed in the amendments which require “significant and serious injury" as the threshold before a report is required to be made to the Child and Family Agency.
For these reasons, I am not accepting these amendments.
Emotional abuse of children is a serious issue and why so many counsellors are in business, dealing with it in the majority of cases at adult stage. As a former teacher, I experienced many forms of deprivation among children. Regarding Senator van Turnhout’s proposals, how would they be measured and who would do the measuring? I would have some reservations about the reliability of someone making such a judgment.
I have no further comments to add. I have made it clear that the section already covers the proposals in the two amendments, which Senator van Turnhout has withdrawn and not moved. I have explained why I cannot accept them.
Section 14 provides that certain professionals and other persons in specified occupations listed in Schedule 2 are mandated persons for the purpose of the Act. The section sets out the circumstances whereby a mandated person is required to make a report to the Child and Family Agency. Section 14(9) provides that the Minister for Children and Youth Affairs may make regulations regarding the procedures for the making of such reports to the Child and Family Agency.
It is proposed to delete the word “mandated'' from section 14(9)(b), where it secondly occurs, to be consistent with section 14(6)(b). Section 14(6)(b) was amended in the Dáil to provide that mandated persons could report jointly with other persons, whether those other persons are mandated or not. This amendment to section 14(9)(b) is a consequential amendment now required to be consistent with the amended section 14(6)(b).
The effect of not bringing forward the amendment would be to limit the Minister's regulation-making power by confining such regulations to reports by persons all of whom are mandated persons. The effect of the amendment is, therefore, to allow for the Minister to make regulations in respect of a report made by a mandated person jointly with other persons, whether or not those other persons are themselves mandated persons.
On Report Stage, I want to address the matter of the agency requesting mandated persons to assist with assessments. While I need to do some more exploratory work on this matter, we might need to ensure consistency between the agency’s functions under paragraphs (b), (c) and (d) of section 8(1) in the Child and Family Agency Act 2013 and those set out in paragraphs (a), (b) and (c) of section 16(8).
I move amendment No. 5:
In page 20, after line 21, to insert the following:
Amendment of the Child Trafficking and Pornography Act 1998
28. The Child Trafficking and Pornography Act 1998 is amended by substituting the words “child sexual abuse material” for “child pornography” in each place those words appear.”.
I am disappointed amendment No. 4 was ruled out of order. On Report and Final Stages of the Gender Recognition Bill on Wednesday, 15 July 2015, the Minister for State at the Department of Social Protection, Deputy Kevin Humphreys, said he would be happy for the Minister, Deputy James Reilly, to lead on the issue of gender recognition with children because he is the Minister for Children and Youth Affairs and his Department has a wider remit than that of the Department of Social Protection on this issue. Will the Minister consider inserting in future legislation a provision to amend the gender recognition legislation, so the exemption process for 16 to 18 year olds is depathologised in a manner similar to the application process for adults and to include the creation of a process for interim gender recognition certificate for those under 16 so that their rights are fully realised in that process?
I thank Fergus Ryan, Department of Law, Maynooth University, and Tanya Ní Mhuirthile, the School of Law and Government, Dublin City University, for helping me draft these amendments. Returning to amendment No. 5, child pornography is defined under section 2 of the Child Trafficking and Pornography Act 1998. The definition includes any visual representation that shows a child engaged in, or being a witness to, explicit sexual activity and, where the dominant characteristic of a visual representation is the depiction for a sexual purpose of the genital or anal region of a child.
The majority of law enforcement agencies working in this area, most notably Interpol and Europol, believe it is time to stop the use of the misleading term “child pornography” when describing images of the sexual abuse of children. According to Interpol, the world’s largest policing organisation:
A sexual image of a child is “abuse” or “exploitation” and should never be described as “pornography”. Pornography is a term used for adults engaging in consensual sexual acts distributed (mostly) legally to the general public for their sexual pleasure. Child abuse images are not. They involve children who cannot and would not consent and who are victims of a crime. The child abuse images are documented evidence of a crime in progress - a child being sexually abused.
I have been saying this since I first tabled a motion on blocking child abuse material on the Internet in February 2012. Child sexual abuse material is far more than child pornography. The image or depiction is a culmination of at best one, and more than likely a series, of the most serious criminal offences known to our Statute Book, including rape, incest, assault, sadism and bestiality. For each child sexual abuse image produced, it can be expected that numerous offences are committed, as the online distribution of child abuse images exponentially multiplies the number of offences against the sexual integrity of the child.
A child sexual abuse image is a crime scene, a digital record of sexual abuse being perpetrated against a real child in the real world. I will be seeking to have the term “child pornography” in this Bill and across our Statute Book amended to “child sexual abuse material” to better reflect the seriousness of the offence.I welcome the publication of the sexual offences Bill. The matter may be better placed within that Bill. I would ask for the Minister's support, that we name it for what it is. It is child sexual abuse material, not pornography. There is no consent. This is a crime scene.
While I know amendment No. 4 has been ruled out of order, I share the Senator's concern and am happy for her to have spoken on the issue.
Section 7 of the Gender Recognition Act 2015 provides for a review of the operation of the Act. Both the Tánaiste and the Minister of State, Deputy Kevin Humphreys, have stated that it is intended that this review will incorporate issues concerning transgender children. None the less, I am aware that for some, the lack of an explicit legal commitment in that regard is a cause of concern. The fact that the review clause is not triggered until the Act is two years in operation does not mean that further consideration of these issues should wait until then. In recognition of the fact that transgender children often experience difficulties in their day-to-day lives, the Minister of State, Deputy Humphreys, has undertaken to chair a round table discussion with stakeholders to discuss the practical issues that transgender children experience in school settings. This is due to take place on 6 October and I hope it will help to identify the practical needs of transgender children and the steps that will be taken to address them.
I, along with many of my colleagues, was very moved by the testimonies of transgender children, their parents and representatives, during the development and passage of the Gender Recognition Bill. I am conscious, too, that research in this area remains a developing field. I have met with Transgender Equality Network Ireland, TENI, on these matters. I believe we are agreed on the need to learn as much as possible so that we can develop a robust and effective policy which both supports and protects transgender children and young people and their families.
I recently published Ireland's first national strategy on children and young people's participation in decision-making to ensure that children and young people have a voice in their individual and collective everyday lives. As part of that process of learning, I have committed to a consultation process with children and young people which we intend to begin before the year's end. This will give transgender children and young people an opportunity to have their voices heard and will support them in making a meaningful contribution to the review of the Gender Recognition Act.
To further support the process of informing the review, I have asked my officials to progress a number of relevant issues in 2016. These include considering a legislative amendment to copperfasten the incorporation in the review of the Gender Recognition Act a consideration of the needs of children and young people, including those not eligible under the Act; gathering further research and evidence regarding the issue as it relates to children and young people; and further liaison with the medical and other relevant professions on their potential role in assessing needs of children and young people as part of the eligibility to apply for a gender recognition certificate.
I fully understand and, indeed, share Senator van Turnhout's concerns in this area. However, before taking further legislative steps, further consideration, consultation and research needs to be undertaken in a measured way to inform how we as a Government should best address the needs of transgender children. I will be consulting further with a number of groups to seek their assistance in collating and distilling the research and data available in respect of Irish young people. This and the consultation process will assist in clarifying the most appropriate policy position, especially for children aged under 16, in this very complex policy area.
I will now address amendment No. 5. I would like to thank the Senator for her amendment and her continuing dedication in seeking to strengthen the protection of children from sexual abuse and exploitation. Unfortunately, I am not in a position to accept the Senator's amendment. The Child Trafficking and Pornography Act 1998 is not within my remit and is the responsibility of my colleague, the Minister for Justice and Equality, Deputy. Frances Fitzgerald. I am advised that section 2 of the 1998 Act contains an extensive definition of the term child pornography which is compliant with a number of international legal instruments.
I note that the Minister, Deputy Fitzgerald today published the Criminal Law (Sexual Offences) Bill 2015, which I welcome very warmly. The Bill includes wide-ranging provisions to enhance the protection of children from sexual abuse and exploitation, including enhancing the existing definition of child pornography to comply with the requirements of EU Directive 2011/93/EU, as well as other international instruments. I am sure we all welcome this strengthening of the legal provisions protecting children against sexual exploitation.
While I agree with the Senator that the term "child pornography" is outdated and fails to reflect the full horror of the sexual abuse involved, for the reasons she has so eloquently outlined, it is still the language used in the international instruments by which we are bound, not least the relevant EU directive and the Council of Europe's Lanzarote Convention.
While I am not in a position to accept the Senator's amendment today, I will pass her proposals on to the Minister, Deputy Fitzgerald, for her consideration, perhaps in the context of discussing and amending the sexual offences Bill.
I thank the Minister for coming to the House and compliment my colleague, Senator van Turnhout. It is clear that her expertise in the field of children's issues is second to none, and she has brought a lot of expertise to the Chamber in this regard. The amount of detailed work she has put in to these amendments is amazing. I am sure she must have spent the whole summer working on them. I congratulate her.
I am delighted to hear the Minister say he will be consulting with young transgender people. As Senator van Turnhout knows, I have worked with her on this issue for quite some time. I am delighted there is going to be consultation but I worry that it is going to be in 2016 and that if the Minister's lot, or the Minister of State, Deputy Kevin Humphreys, is not in government, it might be put on the back burner. I hope that whoever is in government in 2016 will make this a priority. It is a priority to those children involved and to their parents. I hope the Minister will see it through before the end of his term, if he can. If not, I hope he will ask the officials in the Department to make sure it is a priority going forward.
On the child pornography issue, Senator van Turnhout does not want it called that but at the moment that is what it is being called. She is right. It is a criminal scene, a crime that is being committed against children. I hope that the Minister, Deputy Fitzgerald, will be in a position to amend the legislation.
I thank the Minister for proving that he is Minister for all children in his reply on transgender children. I know they will be heartened to hear what he has said tonight. I am familiar with the work of the Department of Children and Youth Affairs in consulting with children and young people. The consultation process he is commencing will be invaluable to all of our understandings as we evolve and learn about the issues being faced by transgender children. The Minister's proposal to ensure that children are part of the review process is absolutely critical. We need to ensure that they are very much part of it. I welcome Minister's putting that on the record of the House this evening.
On child sexual abuse material, I appreciate the Minister's response. I refer to it in the context of this Bill in order to raise the subject yet again. It is close to my heart, as the Minister can see. We need to be looking to Interpol and Europol, which are dealing with this issue on a day-to-day basis. They are asking us to name it for what it is. We need to see how we can legally do that. It is horrendous if we in any way imply that there is any consent in respect of child sexual abuse material. I know nobody here wants us to imply that. We need to update and modernise our laws. I thank the Minister for committing to bring the matter to the Minister for Justice and Equality, Deputy Fitzgerald.
I appreciate the Senator's understanding and confirm that the Government's view would be very clearly the same as her own, that this is a crime. There is no possibility of a child being able to give consent in these circumstances. I will certainly pass on the Senator's concerns to the Minister for Justice and Equality and will work with her to find a formulation that will allow us meet the Senator's requirement, which we all share, while ensuring we do not do anything to undermine any of the international legal agreements that we have for the protection of children.
I move amendment No. 6:
In page 20, after line 21, to insert the following:“28. The Non-Fatal Offences Against the Person Act 1997 is amended by the substitution for section 24 of the following—“Abolition of common law rules in respect of immunity from criminal liability for punishing a child
24. Any rule of law under which any person is immune from criminal liability in respect of physical chastisement of a child, whether the person is a parent or guardian of the child, a person with custody of the child either temporarily or indefinitely, a teacher, or a person in loco parentis in respect of the child either temporarily or indefinitely, is hereby abolished.”.”.
I would like to begin by acknowledging and thanking Peter Newell of the Global Initiative to End All Corporal Punishment of Children, which promotes the universal prohibition and elimination of corporal punishment. I have worked with Peter for many years on this issue, including when I was the chief executive of the Children's Rights Alliance.
In November 2012, the people of Ireland voted to enshrine children’s rights into the Irish Constitution and while the result was appealed, the decision was signed into law on 28 April 2015. I am delighted to have an updated copy of the Constitution, which firmly places children's rights at its heart. Article 42A.1 states clearly: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights."
What I am proposing in this amendment is to ensure that all citizens are equal in the eyes of the law. Why do we still believe it is acceptable for corporal punishment to be in our laws? The Committee on the Rights of the Child defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most such punishment involves hitting, smacking, slapping or spanking children, with the hand or with an implement such as a whip, stick, belt, shoe or wooden spoon, etc. However, it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion. In the view of the committee, corporal punishment is invariably degrading.
Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation such as spanking or smacking. The truth is that, for a child, all of this is violence and if it was directed at an adult it would constitute criminal assault. I am very conscious that when I raise this issue, people often believe it is a judgment on how they were raised. I take this opportunity to welcome my mother, Jenny, to the Visitors Gallery and she will concur that I was raised with the phrase “you’re not too old for the wooden spoon” ringing in my ears. Thankfully, she never had to use the spoon. I wonder whether it is only in Ireland that the wooden spoon is not seen solely as a kitchen utensil but as a weapon. Times have moved on and our understanding of the effects of corporal punishment on children has increased.
There are many other good reasons to ban corporal punishment: it causes serious harm to children; it teaches children that violence is an acceptable way of solving conflicts; it is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health; and it is more difficult to protect children from severe abuse if some forms of violence are legitimate. In tandem with this, we must provide parents with sufficient support in bringing up their children, including educating and supporting parents to develop good parenting skills.
Some 28 states in wider Europe have prohibited all corporal punishment, including in the family. Another 51 states have clearly and publicly committed to achieving a full ban. Ireland has been found in violation of the European social charter by the Council of Europe body, the European Committee of Social Rights. I hope the Government will find itself in a position to accept this amendment because it is the right thing to do. We must uphold and protect children’s rights.
In preparing from this debate I read a quote from Janusz Korczak, who as any children's rights activist would know is a Polish-Jewish paediatrician, educationalist and children’s author. In 1925 in his book “The Child’s Right to Respect” he said:
In what extraordinary circumstances would one dare to push, hit or tug an adult? And yet it is considered so routine and harmless to give a child a tap or stinging smack or to grab it by the arm. The feeling of powerlessness creates respect for power. Not only adults but anyone who is older and stronger can cruelly demonstrate their displeasure, back up their words with force, demand obedience and abuse the child without being punished. We set an example that fosters contempt for the weak. This is bad parenting and sets a bad precedent.
In a publication in Sweden to mark over 30 years on from Sweden’s abolition of corporal punishment, their then Minister, Maria Larsson, wrote:
When violence is used against children, their confidence in the adult world is damaged. And there is good reason to believe that if this violence is exercised by the child’s own parent, or by someone else close to them, the damage is greater.
Sweden introduced its laws in 1979 and they are now over 35 years in place.
Since 2006, the European Union has emphasised the promotion and protection of children’s rights as a priority issue. The European Parliament, in a 2009 resolution on the situation of fundamental rights across the Union, called for a total ban on corporal punishment in all member states. Again in November 2014, the Parliament adopted a resolution calling on member states to uphold their obligations and combat any form of violence against children, “including by formally prohibiting and sanctioning corporal punishment against children”.
Recently at UN level, Ireland through our permanent representative to the United Nations, David Donoghue, and our mission to the UN, has had a central role in the process as co-facilitators of the negotiations together with Kenya on "Transforming our world: the 2030 Agenda for Sustainable Development”. Goal 16.2 is to "End abuse, exploitation, trafficking and all forms of violence against and torture of children." Colleagues, children’s rights experts and advocates in Ireland concur.
In preparing for debate on this Bill, Tanya Ward, chief executive of the Children’s Rights Alliance said:
The Children’s Rights Alliance unites over 100 organisations working with children and their families across the country. Since our establishment in 1995 we have repeatedly called for the removal from Irish law of the defence of reasonable chastisement of children.
Research is clear that corporal punishment has no benefits and can cause children physical and psychological harm and can lead to short and long-term effects on their safety, health and development. There is no justification for corporal punishment and it is clearly at odds with Article 42A of the Constitution which “recognises and affirms the [ ... ] rights of all children” and commits to protect and vindicate those rights by its laws. Children have an absolute right to be protected from harm and abuse under the UN Convention on the Rights of the Child which Ireland ratified in 1992, there are no exceptions.
This coming January, Ireland’s progress on children’s rights will be examined by the UN Committee on the Rights of the Child, the Committee criticised Ireland’s position on corporal punishment in 1998 and 2006 and are likely to do so again in 2016. The Children’s Rights Alliance has been leading the civil society engagement with the UN Committee and has prioritised corporal punishment as a key concern. There is no reason to delay, Ireland has a moral and legal duty to protect children from corporal punishment.
Grania Long, chief executive of the ISPCC says:
As the national child protection charity, the ISPCC has long supported a ban on physical punishment of children. Through our national listening service, Childline, we hear on a daily basis the impact of violence towards children. Last year we responded to nearly 37,000 contacts from children regarding abuse or welfare, and many were from children who were anxious, traumatised and scared in their own home, due to violence.
We strongly support the amendment to remove the defence of reasonable chastisement, and believes that it meets the spirit and intent of the Children First legislation. Whatever the circumstance, there is no reason why the law should permit a defence of hurt or violence towards a child. Far too often, the debate centres on the needs or preferences of parents, rather than the rights of the child. The recent change to our constitution following the Children’s Referendum requires us to think very differently and put children at the heart of our considerations. Seanad members therefore have a long overdue and timely opportunity to place in law the right of a child to be safe in their own home, and we hope this opportunity will be grasped, in the best interests of children.
I am very conscious of the role of parents, so I contacted Laura Haugh, mum-in-residence and spokesperson for MummyPages.ie. She says that MummyPages.ie is Ireland's largest online parenting community and its members wholeheartedly support the campaign to repeal the defence of reasonable chastisement by parents and childminders of up to three children in Irish law. She says that slapping another person, especially a vulnerable child is wrong in all circumstances. She believes that allowing slapping by a caregiver to a child under the term "reasonable chastisement"' is legalising physical violence to another person and a form of child abuse. It demonstrates that it is okay for a person to hit another person and that it is okay for a bigger or stronger person to hit a smaller or weaker person.This kind of behaviour can lead to intense abuse in the home for the child who does not learn quickly from reasonable chastisement and is at complete odds with what is acceptable in today's adult society or, indeed, the school playground. Initially, the child is so hurt by the physical action and emotional breakdown of trust between parent and child that he or she forgets what he or she has done wrong. What we want in effective discipline is for the child to understand what he or she has done wrong and the consequences of his or her actions for others. We want the child to feel remorse but, ultimately, to still believe that he or she is a person of value. Slapping does not promote this.
Ms Haugh believes the main principle in promoting desirable behaviour is for the child to feel good and, therefore, be good. This is why regular positive affirmation of good behaviour is a much more effective tool than any other in the context of maintaining this type of behaviour. It is now well researched that when responding to an incident with a child that requires discipline, tuning in to the child to understand exactly why he or she misbehaved, helping him or her to realise how his or her behaviour might affect others and consistent follow-through with age appropriate consequences is much more effective than physical chastisement, no matter how reasonable the latter perceived to be.
I am conscious of the comments made last February by Pope Francis. While I did not appreciate his comments, it was encouraging to see the response both nationally and at the level of the Vatican. In particular, I wish to cite the letter toThe Irish Timesby Mary McAleese, who noted that the Vatican is a signatory to the UN Convention on the Rights of the Child and that the committee monitoring this wants all corporal punishment of children to be banned. She added that, in submissions to that committee last year, the Vatican said it did not promote corporal punishment, citing "respect for the inviolability of physical life and the integrity of the person". The Vatican has responded by appointing Peter Saunders, founder of the National Association for People Abused in Childhood, a UK-based organisation, to the Pontifical Commission for the Protection of Minors. Mr. Saunders was asked lead the non-violence against children working group of that commission. I contacted Mr. Saunders earlier today and he advised me that the working group members are unanimous in their position that there is never an instance where violence or reasonable chastisement is ever justifiable. Irish abuse survivor Marie Collins is also a member of the Pontifical Commission for the Protection of Minors. In discussions with both Marie Collins and Peter Saunders, I have found they are extremely supportive of Ireland updating its laws to bring into effect a ban on corporal punishment here.
Marta Santos Pais, Special Representative of the Secretary General on Violence against Children, advocates that corporal punishment can be prevented. She states, "By supporting caregivers in the use of non-violent child rearing practices; by promoting advocacy and social mobilisation to safeguard children's dignity and physical integrity; by reforming laws to introduce a clear ban of all forms of violence including corporal punishment, we can make a real difference in the life of children, all children, everywhere and at all times".
Ireland is now out of step with parents, children's rights advocates and international best practice. With this amendment, we have a way to unite and agree that all citizens are equal.
There is not a lot left for me to say after that because Senator van Turnhout has covered everything in minute detail. When I first saw this amendment, I had my doubts and reservations. However, I sat down and thought about it at length. As with Senator van Turnhout's mother, I guess the wooden spoon was very prominent in my house as well. Thankfully, I never had to use it because all I had to do was lift it and the children scattered and said they would not risk taking a whack of it. I used to send my son up to his room but I found out later in life that he was delighted with this because he loved to read and be on his own. He did not see it as a punishment and thought it was great because he had the place to himself and was happy up there. My daughter was different. She would have loved to be down in the thick of things and did not like to be sent to her room.
My granddaughter, who is nearly two, goes to a child minder. I would hate to think that the child minder would slap her - it would absolutely gut me. I wonder why we feel like that, why we feel that somebody else cannot hit a child but a parent can hit or slap their child. Where do we draw the line between reasonable chastisement and what is more physical and violent? It is best if we get rid of it altogether. There is no need to slap children. There are other ways of doing this, such as sending them to their room, stopping them from watching a favourite television programme or something they would not like done to them. There are ways of doing this without the use of physical violence.
I very much support Senator van Turnhout's amendment. I hope the Minister, who is in a position to accept the amendment, will see matters her way. If we were in school and a child hit another child, we would call that bullying. However, it is not seen as bullying when a parent slaps their child in the home. We have to distinguish once and for all whether it is wrong or right for a parent to hit his or her child.
The European Committee of Social Rights has ruled that Ireland and Slovenia are in violation of the European Social Charter because all corporal punishment of children is not prohibited. Some 28 Council of Europe member states have prohibited corporal punishments in all settings, including the family home. In the case of Ireland, the repeated findings by the committee highlight there has been no development towards ensuring children's legal protection from corporal punishment for the past 12 years. This has been going on for quite some time and nobody has done anything about it. In fairness to Senator van Turnhout, she has raised the issue and put forward the amendment. She has already said Deputy Reilly is a caring Minister who has worked hard on behalf of children since he took over as Minister for Children and Youth Affairs. Everyone in the House will acknowledge that fact. I hope he will be able to accept this amendment by Senator van Turnhout and not put any of us in a position to have to vote against it.
I commend Senator Jillian van Turnhout on this very well-worded amendment. I welcome her mother to the Visitors Gallery. Senator van Turnhout has certainly proven the point that her mother was a good and caring woman who never actually used physical violence.
To go back to the abolition of violence in schools and of teachers being allowed to slap, this is a memory for most people who attended school in the 1950s. It was a dreadful experience. With respect to the Christian Brothers, and I have a lot of time for them, had no problem with them myself and thought them an excellent teaching order, we know that a leather strap was actually designed and made for them. The phrase was "six of the best". It was a terrifying experience to go up there, a little child of ten or 11, or less, and hold out your hand to be walloped. It was a colleague of the Minister, Deputy Reilly, who-----
Yes. The late Deputy John Boland was the Minister who abolished, through legislation, the physical mistreatment of children. On the eve of the 100th anniversary of the Rising, would it not be a lovely gesture? The Proclamation deals with the equal rights of children and treating all children equally. This is one way of doing it. There is no excuse. What one is doing is perpetrating violence by using violence, in that they will use violence on their children, and it goes on and on and never ends.
It would be worthwhile to revisit this issue. I recommend that there not be a vote today because the Minister might find the issue is accepted by the House. The Minister should return to the Government and say this is really serious. Senator van Turnhout has outlined exactly the overall international situation. Ireland is regarded as a Christian, Catholic country. Why should it be out of line? I have been a member of the Council of Europe for the past seven years and I am deputy leader of the delegation from Ireland. I am embarrassed by this matter being raised, when 27 countries out of 47 have accepted the fact that this is wrong.
I do not see any justification for it. I know of the Minister's experience as a medical doctor and I am sure he has experienced children being very scared of parents. If somebody witnessed a person on a train or in the street hitting a child, they would have to intervene but, as far as I know, they would have no right to intervene because the person hitting the child is exempt from prosecution.The Garda cannot intervene. Children can test their parents' strength but it is another thing to resort to physical violence. It is not a question degrees, of saying it is okay to do X, for example, to slap a child on the back or the leg. It is not okay because that begs the question of where one draws the line, as Senator van Turnhout said. One could consider all the different degrees. I am a parent. My wife, Mary, and I did not do that. I would find it very difficult to speak in this debate if I was involved in that. Of course, children drive parents to distraction. It is very difficult but there are ways to overcome it. There are different ways of saying that a child cannot go somewhere or that the family are not going to a particular place tomorrow, so the child can forget about it. There are ways of doing it. It is so obvious. I cannot understand why the amendment would not be accepted. The Minister for Children and Youth Affairs is doing great work in Jobstown and other places to protect children. One amendment could change the entire attitude to children in this country. Those who oppose it are the ones who will exercise those rights themselves.
Any parent who is against the corporal punishment of children is opposed to the Government. I speak as a member of Fianna Fáil. I am not mandated to say it but I would be very disappointed if the Fianna Fáil Party did not support the amendment. I support it. I do not consult other people in the party on these issues, I have a gut feeling about them. I have been a Member of the Oireachtas for some time. I have served as a Minister of State in the Department of Health and in other Departments. I know the restrictions on the Minister. I know the advice he is getting from senior public servants, whom I presume are present, and others. Will the Minister reflect on the amendment tonight? In fairness, there was not a vote on the amendment because that commits it too much. In advance of Report Stage, perhaps the Minister could consider the various repercussions and discuss the matter with his colleagues in government. He should be prepared to consider the situation.
Senator van Turnhout has done great work. She has done the State some service. Her nomination to serve in this House by the Taoiseach was a very intelligent decision. The Government appointed so many talented people and she is one of them. She has brought enormous experience to the House. We do not have Senator van Turnhout's level of expertise. We would not be examining the matter in the same depth or with the same expertise without Senator van Turnhout. She has done much research. It takes time to do so much work. She put detailed work into her preparation for the debate on the Bill and has voiced our thoughts, feelings and aspirations. There is no political mileage to be gained. Given the anniversary of 1916 in next year, it would be a wonderful gesture if this measure was not delayed but was signed into law so it would come into force 100 years after the Rising, which would mean that the children of Ireland would be protected from abuse inside the home, outside the home, in schools, institutions and everywhere else. If Senator Jillian van Turnhout can achieve that through her powers of persuasion, her mother would be very proud tonight, as would this country. We would owe her a great debt of gratitude.
I was listening to Senator van Turnhout and I decided I must come to the Chamber. Her speech was splendid. I received a message from the British Medical Journalrecently seeking views on Dr. Cyril Daly, a fellow medical practitioner of the Minister, who led this campaign for a very long time in Ireland. I am working on that coincidence first. The Minister mentioned that John Boland was a neighbour of his in the north of the county. I hope all those portents are good. Former Senator, Owen Skeffington, was a predecessor of mine who ran with this campaign. We were told that somebody said to him in the House one day "I was beaten when I was a child. It didn’t do me any harm,", and Skeffington replied, "The question is what did do the harm." The House of Lords would have probably had a spare-the-rod-and-spoil-the-child view, that corporal punishment is good for somebody, that it will make a man out of him, etc. It is Victorian stuff that children should be seen and not heard. It is completely outdated by developments in education, such as Montessori schools among others. It is also completely outdated by the way we see children with their friends now. We would never dream of beating them. Violence does not solve problems. As Senator van Turnhout said, it is an abuse of power for any big person to hit a small person. I hope the Minister will reflect on the matter, as Senator Leyden suggested.
We just had a referendum which probably would have been undreamt of previously. That referendum was possible because the people are far more radical than we are in here. The people of this country do not want children to be beaten by adults in any context. Unfortunately, it used to happen most when children were smaller. There was a certain amount of bullying in primary schools. The atmosphere in primary schools is different now. Children want to go to school. Previously, when children came home and said they got slapped in school they were told they must have done something to deserve it. We have moved on from all those outdated ways of looking at things. The Minister takes a radical approach to smoking. I am trying to exercise whatever charm I might possess in order to persuade him to be radical on this matter as well. The portents are very good in terms of what Cyril Daly and John Boland did and what former Senator Owen Skeffington advocated here, in addition to what the electorate recently decided. The old way of viewing children is completely outdated. I am persuaded by Senator van Turnhout’s eloquence in that regard.
I congratulate Senator van Turnhout. She is an expert on this matter and has a great interest in the welfare of children. She spoke very well this evening.
A great deal has been said in this House in recent years about the protection of children and that is what we are discussing now. I hope the Minister will give the amendment some consideration. It is very important that children are protected in their own homes but I am not sure how we can manage that. We would probably be obliged to rely on the children themselves. The issue is complicated.
I would appreciate if the Minister would give the matter some thought because we have come a long way in terms of child protection in this country. The Minister and his predecessor have done much work in terms of disturbing legacy issues affecting children. As my party spokesperson on children in this House, I acknowledge that we have come a long way but that we have a lot to do also. I would be very happy if the Minister could give the amendment serious consideration.
I thank Senators for their contributions. I had the pleasure of knowing John Boland and I am still very good friends with his widow, Kay. I knew the late Cyril Daly very well also. He was very well known for a very humorous column he used to write in the Irish Medical Timesunder the byline of Dr. Slymo Sloothery. The name itself will give an indication of the sort of antics that were described.
On a very serious note, I sincerely thank Senator van Turnhout for bringing forward this amendment for discussion. The matter to which it relates is important and one in respect of which I share the objective sought by the Senator. I also take this opportunity to repeat that the Government is fully committed to working towards the elimination of corporal punishment and to further protecting children from violence. I wish to comment on something to which a number of Senators, including Senator Henry, alluded. It puts me in mind that what we do in law is to send a strong message that we hope will be followed by a cultural shift. In the context of the marriage equality referendum, we sent out a very strong message but we know there is still bias out there against same-sex couples. We believe that, through the referendum, we have sent a very strong message to the effect that such bias is not acceptable in Irish society anymore and that the position will change. Equally, I believe the same will be the case in respect of the matter under discussion.Although various provisions exist under Irish law and administrative measures that prohibit, or aim to prohibit, the use of corporal punishment in non-family settings, it has been acknowledged that these arrangements do not reach the standard required by international instruments to which Ireland is a party, such as the UN Convention on the Rights of the Child and the Council of Europe's Revised Social Charter.
In that very context, earlier this year Ireland was found to be in violation of the Revised Social Charter. This was the second such finding; the previous one having been made in 2004. As I view the particular matter as one of equality before the law, rather than any intrusion on the exercise of legitimate parental authority, I resolved to set about addressing this issue as quickly as possible. Accordingly, in its response to the finding of a violation Ireland gave particular commitments to the Council of Europe.
The first of these commitments related to bringing in regulations to expressly prohibit in law the use of corporal punishment in certain State child care settings where this was not already the case, essentially covering foster care and residential care situations. I am pleased to inform the House that preparations for making such regulations are almost complete and I would hope to be in a position to sign them into law shortly.
The second commitment related to the matter of the common law defence of "reasonable chastisement" which is the subject of the Senator's amendment. In that regard, Ireland undertook to the Council of Europe to initiate arrangements to examine the potential, under the Irish legal framework, to remove this defence. This is something my Department has been working on actively and purposefully since the commitment was given a number of months ago.
A proposed provision in law which involves children, their parents and the State has considerable chance of engaging issues of constitutional rights and therefore needs to be very carefully examined. A very thorough and sure-footed approach is required in preparing any measure to reduce the prospect of a successful challenge in the future, which will not be to anyone's benefit and certainly not that of children. I do not want this House to be responsible for my proposing a law that will be struck down by the courts.
The aim of the current work by my Department is to ensure that there is the strongest possible policy and legal grounding for action in this potentially legally sensitive area. These steps constitute a normal, prudent approach to ensuring that legislative measures, particularly where the State interacts with the family, consider implications and vulnerabilities as extensively as possible to provide the greatest level of confidence that the measure is sustainable. In other words, we want it to stick. Given the advanced stage of that work, I consider that it may be possible to bring it to completion very soon and indeed to coincide with a Report Stage consideration of the Senator's amendment. I therefore respectfully suggest for the Senator's consideration that she agree to postpone determination of her amendment until Report Stage. At that time I expect to be in a position to let her know whether or not such an amendment can be accepted.
I have been in discussions with the Attorney General and with my Department as late as yesterday morning and this morning and we are very hopeful. There is absolutely no ideological issue here. Everybody wants this to happen. I do not want to leave this behind us. I am very much struck by what Senator Leyden has said as we come into 2016, that we honour that proclamation in a very real way. I ask for forbearance. Time is against me in that I cannot with absolute authority or confidence accept the amendment today but I have no doubt that by Report Stage, one way or the other, there will be a clear answer on this. If I have my way we will have this defence of "reasonable chastisement" removed from the Statute Book. I hope the Senator will accept my bona fides on that.
I absolutely accept the Minister’s bona fides on this issue and, as has been in evidence in the House tonight, we all share that objective. I acknowledge the work being done by the officials in the Department of Children and Youth Affairs and by the Attorney General.
I am cognisant that it could be challenged in law, as any law could be but the likelihood is that will be by somebody who is in violation of the law. The difficulty is that very often if somebody starts with disciplining a child by a tap or a slap when that is not effective it is escalated. We see too many cases of this. We need to send a very clear message that violence against children is unacceptable. I am also very conscious when people talk to me on this issue that this is not about judging parents. I do not in any way want my words tonight to be about judging parents. Sometimes I am asked, "Surely it is acceptable if a child is about to run across the road?" If a child is about to run across the road surely the parent grabs the child to protect him or her, and does not slap or hit the child. There is no reason to use violence against the child.
There are situations, I can see all too often, when children misbehave. One of my pet peeves at the moment is the carousel queueing systems in shops that have sweets all at the eye level of children. The adults are able to look around the shop while queueing but the children are being bombarded with sweets and naturally want to take these and the parent is trying to ensure the child behaves. In that situation it is important to support the parent and I have complained to the shopkeepers, saying I find it unacceptable that they put parents in this situation by having sweets at the children’s eye level. I am not trying to judge the parent because the commercial sector has created a very difficult situation for that parent. We should all always work to help the parents in that important, critical role.
I welcome what the Minister has said here tonight. I believe that children are rights holders, as the people of Ireland do and they need to be equal before the law. I am not precious about whether this is my amendment or a Government amendment. If there is better wording to ensure we can do it right, I want to try to see that we can bring this into law. I agree with what has been said about doing it on the eve of 2016. Now is the time we need to do it, it is well overdue. I hope we will stand here next week in a position to accept an amendment that Ireland will at last repeal the defence of reasonable chastisement. The very idea that we could wait to have it tested in the courts, and let it remain in our common law, horrifies me when I have read some of the definitions.
I thank the Minister for his words tonight and wish bon courageto him and his officials. I am here to help if there is anything I can do to ensure we will all be in the position that we wish to be next week. I will push this to a vote if the Government is not in a position to support it because I feel passionately about this. I have only a few months left here, whenever there is an election. This issue has been close to my heart for many years. I have seen too many cases of children where this was acceptable and violence has escalated within the family. We have to send a clear message, which my colleagues across the aisle in the Seanad tonight have done clearly, saying violence against children is unacceptable in all its forms.