RE: Draft ASTI Submission on Heads of Children First Bill, 2012

TO: General Secretary

FROM: AGS/ERO

RE: Draft ASTI Submission on Heads of Children First Bill, 2012 Draft ASTI Submission on Heads of Children First Bill, 2012

Introduction: The publication of the Children First Bill is an important legislative development in child protection. It places the national child protection guidelines, “Children First: National Guidance for the Protection and Welfare of Children”,2010 on a statutory footing. It also serves to give effect to important provisions in the UN Convention on the Rights of the Child, ratified by Ireland in 1992. Given that Ireland has subsequently signed and intends to ratify the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote Convention), the provisions of this Convention must also be provided for in the final legislation.

The key message from the revised Children First 2010 Guidance is that the safety and welfare of children is everyone’s responsibility. In September, 2011 the Department of Education & Skills published updated Child Protection Procedures for Primary and Post-Primary Schools following a consultation process. The updated procedures incorporate improvements to the previous school guidelines, including strengthening the local oversight arrangements, which are intended to better ensure consistent and uniform implementation of Children First across all schools. The updated procedures recognise that child protection and welfare considerations permeate all aspects of school life and should be reflected in all of the school's policies, practices and activities. The procedures also specifically require that a school's child protection policy confirm that all school policies, practices and activities will adhere to certain principles of best practice in child protection and welfare.

Broad Observations The publication of this Bill coincides with a number of other legislative developments aimed at protecting children and ensuring that adults who work with children are aware of their duties in relation to child protection. They include the Protection for Persons Reporting Child Abuse Act, 1998; the Criminal Justice Act, 2006; the National Vetting Bureau Bill, 2011; the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons)Bill, 2011. When enacted, these Acts will impact swiftly and comprehensively on the duties and responsibilities of schools in relation to child protection and working with relevant services. Given the pace and extent of legislative change, the ASTI believes that the Department of Education and Skills has a particular responsibility to ensure that school management authorities and teachers receive training and information to enable them to comply with the new legislation.

The ASTI is a long-standing member of the Children’s Rights Alliance. This coalition of over 100 NGOs has played a lead role in promoting the rights of the child in Ireland by campaigning for the full implementation of the UN Convention on the Rights of the Child. The ASTI shares the concerns expressed in the Alliance’s submission re the failure of the draft Heads to reflect the overarching principle of the “best interests of the child”. This principle not only reflects a holistic view of what is best for children; it also serves as the accepted criterion for any assessment of State intervention in family life under Article 8 of the European Convention on Human Rights.

1 While the term does appear in the explanatory text of the Heads, it does not appear in the legal text, where it is replaced by the narrower term “welfare”. This is disappointing and sends the wrong signals in the forthcoming legislation.

Head 2: Interpretation The definition of abuse in Head 2 is much narrower than that currently contained in existing national guidelines and legislation, including Children First, 2011 and the accompanying Practice Handbook; the Persons Reporting Child Abuse Act, 1998. This omission is worrying and will vitiate the capacity of designated organisations and mandated professionals to recognise and report child neglect. Given that the Children First Bill aims to place the Children First, 2011 on a statutory footing, this omission is of concern, and mirrors the concerns noted above re the terminology of “welfare” rather than the “best interests of the child”. Overall, there is a worrying inconsistency in terminology throughout the draft Heads.

Head 5: Aims and Principles The Bill places a number of aspects of the Children First Guidance on a statutory footing, while at the same time, the latter will serve as national policy alongside the Bill. However, there is a worrying lack of clarity as to relationship between national policy and the Children First Act as specified in Head 5 (2) and 5 (3). The submission of the Children’s Rights Alliance has already drawn attention to apparent contradictions in this draft Head.

Head 7 & 8: Organisations, Notifications to HSE by Organisations This Head lists the statutory responsibilities of organisations, including schools, under the legislation. While broadly modelled on the current child protection guidelines for post – primary schools, this section explicitly states what schools are expected to do to comply with the legislation, including the preparation and updating of a Keeping Children Safe Plan. It also requires schools to proactively engage in promoting awareness of, and best practice in, child welfare and protection among teachers, parents and children. These statutory requirements will invariably add significantly to the duties of Principals in particular, but also to the work of the Board of Management and the in-school management structures. Schools need good guidance, including policy templates and training, in order to meet these responsibilities. The designation of teachers as Mandated Professionals is a significant new development. Both the Teaching Council and the Department of Education & Skills have a key role to play in communicating practical guidance to teachers on what is expected under this designation.

The Department of Education & Skills must provide clarity on the how the internal audit committee (7.14) interacts with the Board of Management of the school which, under the Education Act, 1998, is responsible for the management of schools and which under the current post primary child protection guidelines, is responsible for child protection policy. As noted under head 5 above, clarity is needed on the relationship between national policy and legislation.

Head 9: Designated Officer Head 9 sets out the functions of the Designated Officer which are extensive, requiring significant time and administrative dimensions. Principals are rightly concerned about their capacity to engage in the extensive range of requirements, even within the context of their functions being delegated to other employees. The Designated Officer must be afforded adequate protection such as is currently provided under the Persons Reporting Child Abuse Act, 1998.

2 Head 11, 20: Person Statutorily Required To Report Child Abuse Head 11 provides that the Designated Officer and mandated professionals, including teachers, are statutorily required to report concerns or allegations of child abuse to the HSE. Failure to report is an offence, which under Head 20, a person on conviction, will be liable to a fine and/ or imprisonment. In common with the Children’s Rights Alliance, the ASTI believes that the criminal prosecution sanction in unworkable in practice and should be re-considered. A core objective of the Children First legislation is to bring accountability into the area of child protection and welfare. It will best succeed in this goal by facilitating a culture of compliance with the legislation. An accountable organisational culture will not emerge because of fear of prosecution. Rather, it will emerge when professionals/individuals working in such organisations have clear and shared understandings of children’s welfare; of child abuse - in particular, emotional and psychological abuse; of what constitutes the best interests of the child. This culture is best encapsulated as follows:

The key message from the revised Children First Guidance is that the safety and welfare of children is everyone’s responsibility. Children will have safer lives where everyone is attentive to their wellbeing and where people who work with children across a range of areas understand their personal responsibility for safe practices and reporting concerns. (Opening Statement of DYCA to JOC Health & Children, October 2011)

Instead of the criminal prosecution sanction, the ASTI supports the recommendation of the Children’s Rights Alliance that a more appropriate mechanism may be the imposition of a civil offence with a larger fine. This would have the very significant advantage of requiring a lower evidential threshold to prove a breach of the Act. It could also mean that financial sanction could apply to both the organisation and the individual/s as appropriate. This would represent a more effective model of organisational accountability.

More specifically, the ASTI must put on record its deep concern over the potential criminal liability that the Bill conjoins to the role of the Designated Officer. Organisational cultures are driven by leaders: in the case of schools, by the school Principal. Affixing potential criminal liability to their role would be disastrous on several counts. It will discourage teachers from applying for the post of principal: there is already widespread evidence of such difficulties because of the perceived workload and responsibility attached to the post. It will not create the organisational culture of compliance wherein all members of staff have to create a culture of accountability. It also raises issues as to the current contractual duties of principals. Furthermore, it raises issues as to the statutory duties and responsibilities of the Board of Management, including the Chairperson of the Board. The Department of Education & Skills has a particular responsibility to address these issues in advance of the finalisation of the legislation.

Head 11 (13) provides that Mandated Professionals and Designated Officers can plead “reasonable excuse” as a defence against their prosecution. However, the draft Bill does not provide clarity as to what constitutes a “reasonable excuse”. Clarity is needed on whether a possible defence could be that a report was not made as this action would likely lead to a child disengaging from a service where he or she was receiving support. Clarity is also needed on whether a possible defence could be that a child made known his or her view (provided that he or she was capable of forming a view on the matter) that the concern or allegation should not be disclosed. Such a defence exists under Section 4(1a) of the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Bill 2012. The final legislation must not be in any way contradictory to existing legislation.

3 Head 12: Health Service Executive Under this Head, the HSE will provide best practice guidance for organisations to be called Safeguarding Guidance for Organisations. This guidance must be available before other sections of the legislation are implemented in relation to reporting of allegations or suspicions of abuse. It also requires, under Head 12(1f), that the HSE is to provide advice to Designated Officers and Mandated Professionals to allow the individual to make a decision as to whether a report is required to be made under this Bill. However, Head 12(4) provides that such advice given by the HSE cannot be used as a defence for not reporting concerns or allegations of abuse which meet the criteria provide for in Head 15. This provision may lead to over-reporting and/or disengagement from using the HSE as a resource – and is arguably inherently unfair.

Heads 7 and 8 place significant duties on organisations to provide training to Designated Officers, employees and volunteers. Organisations are also required to make available to the HSE information on training arrangements. The Bill provides that the HSE can provide advice to organisations but does not include a duty on the HSE to provide training. Given that the Bill places a significant administrative burden, a high level of responsibility and affixes potential criminal prosecution on individuals, this failure to ensure training is also inherently unfair. The ASTI also shares the concern of the Children’s Rights Alliance about the potential conflict of interest between the duties vested in the HSE and status of the HSE as a designated organisation under Head 6. The Bill should address this anomaly.

Concluding Observations

Coherence across legislation: The inconsistency in terminology and definitions in the draft Heads vis- à-vis existing national guidelines and legislation must be addressed in the Bill. Furthermore, particular consideration must be given to ensuring coherence between the provisions of the Children’s First Bill and the other relevant pieces of legislation referred to in the Introduction above.

Phased commencement of legislation: The Children First Bill is aimed at putting the national guidance on child protection, Children First 2011, on a statutory footing. A phased commencement of legislation will be essential to enable the HSE in the first instance, but also other agencies and designated organisations, to develop policy (for example, the HSE policy on Safeguarding Guidance for Organisations), procedures and capacity to implement the legislation. Training will be critical and a positive duty must be placed on the State to ensure that such training is provided. A plan for a phased commencement of the Bill should be published alongside the Bill.

Role of Department of Education & Skills: Head 19 provides that the Minister for Health and Children can request information from eight named Ministers, including the Minister for Education & Skills, on the implementation of the Bill by their Department and related agencies. Given the significant changes proposed in the Bill, including mandatory reporting, role of schools as designated organisations and their implementation of safeguarding policies, the ASTI recommends that the DES engage in dialogue with the education partners in advance of the roll-out and implementation of the Bill’s requirements. Specifically, the DES should provide to the education partners a clear strategy for the training to enable the school and teachers to meet their responsibilities as safeguarding institutions and mandated professionals respectively.