Partner Diego Gallagher and solicitor Orla Crowe from ByrneWallace’s health services team examine forthcoming the Children First Act 2015.
The Children First Act 2015, which was signed into law on 19 November 2015, forms a core part of the current child protection legislation in Ireland. To date however, many of the provisions have not yet come into effect. This is about to change on 11 December 2017 with the commencement of all remaining sections in the Children First Act 2015.
The two main areas coming into effect relate to a) the obligation of Relevant Service Providers to develop Child Safeguarding Statements and b) mandatory reporting by certain persons. Each of these will be looked at in turn.
A. Preparation of Child Safeguarding Statement by “Relevant Service Providers”
“Relevant Service Providers” include organisations that provide services to children and young people, whether paid or unpaid. They include, amongst others, educational, healthcare and statutory care service providers, statutory inspectorates, ombudsman and counsellors.
NOTE: The following are excluded from being regarded as a Relevant Service Provider: if relevant service is undertaken in a family relationship, a personal relationship or on an occasional basis at a school, sports or community event for no commercial consideration.
Sections 8 – 13 sets out the obligation of Relevant Service Providers to develop Child Safeguarding Statements. This involves a number of steps including:
- Carrying out an assessment of risk of potential for harm to any child using the relevant service. This does not mean general health and safety risks but rather the risk of child abuse;
- Preparing a Child Safeguarding Statement setting out the policies and procedures which are in place to mitigate the risks identified at (i) above. This should include issues such as investigations of any act/omission by any staff, recruitment, training of staff, reporting to the Agency etc.; and
- Appointing a relevant person who will be the first point of contact for the Child Safeguarding Statement.
The Child Safeguarding Statement must be completed within three months of 11 December 2017 or three months from the date the Relevant Service Provider commenced (if after 11 December 2017). In addition, it must be reviewed every two years; or sooner if there is any material change to any matter contained in the Statement.
A copy of the Statement must be furnished on request to a parent/guardian of a child availing of the relevant service, the Child and Family Agency (the “Agency”) or members of the public. Any non-compliance with such a request may lead to an organisation ultimately being placed on a register of non-compliance.
As is clear from the above, these new provisions place quite onerous obligations on certain organisations. To assist those organisations in understanding their obligations more clearly, Tusla has released very helpful material in line with Section 6 of the Act. It includes the updated Children First National Guidance for the Protection and Welfare of Children 2017 (the “2017 Guidance”) and a 90 minute e-programme free of charge.
B. Mandatory Reporting of Child Abuse by “Mandated Persons”
“Mandated Persons” are persons who have ongoing contact with children and/or families through professional, voluntary or other roles and are in a key position to protect the children from harm. They include, amongst others, professionals who work with children in the areas of education, health, justice, youth and childcare such as foster carers, probation officers, teachers, Guardians ad Litem, social care workers, etc.
Mandated Persons have certain obligations under Sections 14 – 17 of the Act.
Firstly, Mandated Persons are obliged to report to the Agency any knowledge, belief or reasonable suspicion that a child has been harmed, is being harmed, or is at risk of being harmed. In addition, a Mandated Person must also report to Tusla if he/she receives a disclosure from a child of such harm. Details of the threshold of harm that requires reporting in the Mandated Report is set out in the 2017 Guidance and includes neglect, emotional abuse/ill-treatment, physical abuse and sexual abuse. It is important to note that a Mandated Person is not obliged to judge the truth of the allegation or the credibility of the child before deciding whether to report.
The obligation to report does not arise in cases of suspected consensual sexual activity involving young person aged between 15-17, where the other party to the sexual activity is not more than two years older and there is no material difference in maturity, no intimidation/exploitation and the young person does not wish for it to be disclosed.
The obligation to report under the Act only applies to information received by a Mandated Person from 11 December 2017, whether the harm occurred before or after that point. There is no criminal sanction contained in the Act for a failure to comply with the mandatory reporting provisions, but a complaint may be made to the applicable Fitness to Practice Committee. The Agency may also pass on the information to the National Vetting Bureau of An Garda Siochána, which could be disclosed in any future Garda vetting.
Secondly, Mandated Persons are required to assist the Agency, if requested, to assess a concern which has been the subject of a Mandated Report (regardless of who made the Report). Such assistance can include, for example, providing written information or reports, attending meetings arranged by Tusla or providing Tusla with any document requested. Mandated Persons who assist in such an assessment are protected from civil liability, but they can be prosecuted if they release any information shared by the Agency during the assessment to a third party without the Agency’s written consent.
Again, this section will result in a significant obligation certain individuals to report and it is recommended to consult the 2017 Guidance for helpful policy on the matter.
In light of the onerous obligations being placed on Relevant Service Providers and Mandated Persons under the 2015 Act, it is recommended that all those affected dedicate some time in familiarising themselves with the new provisions. The 2017 Guidance and e-learning programme is a good starting point. Finally, this firm can advise any Relevant Service Provider when drafting their Child Safety Statement.
- Diego Gallagher is a partner in ByrneWallace’s health services team. Orla Crowe is a solicitor in the same team.