Solicitor Clare Daly of Ronan Daly Jermyn writes on provisions of the Children First Act 2015, including those on mandatory reporting, which will soon come into force.
Mandatory Reporting and Child Safeguarding Statements will become law in just over two months. The remaining provisions of the Children First Act 2015 will come into effect on the 11th of December next.
10 KEY POINTS TO NOTE:
- Mandatory reporting obligations will be imposed on certain key professionals to report concerns of harm to Tusla.
- These professionals, defined as “mandated persons” and the definition includes social workers, doctors, teachers , child safeguarding officers who are employed for that purpose, members of An Garda Sίochána, youth workers and those carrying gout a preschool service, to name but a few.
- The mandated person is required to report concerns of harm and section 2 of the Act defines harm as follows:
“ (a) Assault, ill-treatment or neglect of the child in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare, or
(b) Sexual abuse of the child, whether caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances or otherwise.”
- A mandated person must also assist Tusla in assessing a concern which has been the subject of a mandated report, if they are requested to do so, irrespective of who made the report.
- Information may be shared with the mandatory reporter by Tusla in order to enable their assistance. This information cannot then be shared by the mandatory reporter with any third parties, and such disclosure is subject to criminal sanction. This is the only criminal sanction in the Act. It can cause concern for those whose terms of employment might be at odds with this provision.
- Section 15(3) of the Act provides protection from civil liability when assisting Tusla in the assessment of risk to a child.
- It is not sufficient for a mandated person to report the concern to their DLP. The report must be made to Tusla.
- Mandated persons cannot report a concern anonymously and if they do so they are not in compliance with obligations under the Act. How and what to report are set out in the new Children First Guidance 2017 at Chapter 3.
- There is no criminal sanction under the Act for failing to adhere to these requirements.
- However the Act does hint at professional sanctions: for example, the Child and Family Agency is a specified body for purposes of National Vetting Bureau (Children and Vulnerable persons) Acts 2012-2016 and a failure to report could be regarded as specified information which, pursuant to the Vetting Acts 2012-2016, must be notified to the National Vetting Bureau. Consequently, where that professional applies for subsequent Garda Vetting, a failure to abide by the mandatory reporting obligations under the Children First Act would be revealed. This is also echoed in the new Children First Guidance 2017 which notes that referrals can be made to the personal professional body, National Vetting Bureau as above, the person may be in breach of their terms of employment and the matter could fall foul of the Criminal Justice Withholding Act 2012 which carries criminal sanctions.
The Act will also oblige “a provider of a relevant service” to carry out a Risk Assessment and, from that, to draft a Child Safeguarding Statement.
The Child Safeguarding Statement must specify the service being provided and the principles and procedures to be observed to ensure as far as practicable, that a child, while availing of the service, is safe from harm.
Organisations have a three month grace period in which to ensure these requirements are met, which it would appear, would bring us to 11 March 2018.
The Child Safeguarding Statement must be reviewed every 24 months or after a “material change” in any matter in which the statement refers.
The Act further provides that Tusla can request to inspect the statement and where same is not provided, the organisation could be served with a notice of Non-Compliance. Tusla will maintain a register of non-compliance which is available for inspection by members of the public.
It remains to be seen whether an organisation’s entry onto this register will impact on public funding opportunities or grants. Certainly, the public nature of the register would be significant in terms of a sanction. Organisations which do not fall under the definition of a “relevant service” should have in place their child protection policy as provided for under Children First.
- Clare Daly is a solicitor in the litigation and dispute resolution department at Ronan Daly Jermyn. View her profile here.