May 5, 2012 by David Miller
Children First Bill 2012 – a Grassroots View
The Impact on Clubs and Voluntary Organisations
- The Government has published its much awaited Children First Bill 2012, putting into effect the recommendations of both the Ryan and Cloyne reports that had specifically mandated the placing on a statutory footing of what until now have simply been the non-statutory guidelines of Children First: National Guidelines for the Protection and Welfare of Children, 1999. As the background notes state:
Children First has operated on the basis of voluntary compliance since it was first published.
- The revised Children First Bill proposes putting the guidelines on to a statutory footing.
- The following account is a grassroots volunteer’s view of the potential impact of the proposed legislation. The author is a Children’s Officer for a large grassroots soccer club, a dispute resolution solicitor by experience, a member of the FAI’s National Disciplinary Panel and the managing director of a web-based start-up company engineering a risk management software solution for voluntary clubs and organisations, currently in Beta testing.
- Different definition of ‘employment’ from the National Vetting Bureau Bill 2011: consistency between the two is recommended (Head 2).
- Clarity as to why gyms and leisure centres are excluded (Head 6 (3)(f)).
- Does the Audit Committee have to be of the view (i) that the organisation is breach and (ii) have concerns that it believes should be brought to the attention of the HSE (or is the breach alone sufficient, however administratively minor, without accompanying concerns)? (Head 7 (14)):
- The definition of which organisations require notification to the HSE, and when, is confusing and needs revisiting (Head 8).
- As the duties of the Designated Officer are delegable within an organisation do the potential criminal liabilities (for breaches of the legislation) become shared with the person to whom those duties are delegated (Head 9)?
- The defence of a ‘reasonable excuse’, being the only defence for non-reporting, should be expanded upon (Head 11(3)).
- Head 11 also requires clarification, again in relation to which people in an organisation can be deemed to have committed an offence (the definition needs tightening up).
- In Head 12, the proposal that a Designated Officer would be prohibited from relying upon the advice of the HSE’s information and advice line in deciding whether or not to make a report to the HSE, undermines the purpose of the ‘advisory’ nature of the proposed line: if that advice cannot be relied upon then its value must necessarily be questioned.
- It should be clarified whether the Designated Officer should be embarking on the proposed ‘improvements’ contained in their Improvement Plan (if requested by the HSE to provide one) before the Designated Officer has heard back from the HSE (which has a month to respond); or if it should wait to hear back from the HSE that the proposed improvements are sufficient in the view of the HSE (Head 14(3)(c)).
- Again, clarity needs to be brought on Head 14(6)(a): is the contravention by the organisation, or by the Designated Officer, or both: the answer pointing towards where potential liability lies.
- The current one-month time limit (Head 14(26)) within which the HSE must issue a written notice of compliance on receipt of an organisation’s confirmation of satisfying the terms of a Prohibition Notice, should be shortened to 21 or 14 days, given the significant nature of the public prohibition on that organisation’s activities.
- The requirement for prominent publication of a Prohibition Notice should specifically include publication on an organisation’s home page of its website, otherwise it is very likely that the purpose of the proposed publication (ensuring the organisation’s users know the view of the HSE) will be circumvented by publication in an obscure location (Head 14(30)(1)).
- ‘As soon as practicable’ – being the time in which An Garda Siochana must report a matter to the HSE – is a ‘fudge’ open to unreasonable delay, and should be spelled out, e.g. 7 days (given that all the other time limits in the Bill have specific time limits set) (Head 16 (2)).
Preliminary and General
Head 2: Interpretation
Definition of ‘employment’ includes:
- Full time work for which a person is paid
- Part time work for which a person is pad
- Placements as part of professional training or other educational course, including internship schemes
Interestingly this definition is slightly different from that contained in the National Vetting Bureau Bill 2011 which defined ‘employment’ as:
full time [paid] work, part time [paid] work, work as a volunteer, work whether paid or unpaid with under a contract or not and also additionally placements as part of a course.
While the Children First legislation goes on define “volunteer” as “a person who performs a service on behalf of an organisation willingly and without pay”, it does beg the question as to why the same definition of employment is not used in two so closely analogous bills.
The answer (according to the explanatory note in the Children First draft heads) is that “the definition of “employment” could include volunteers but it is intended that
“volunteers will be mentioned throughout the Bill. The reasoning behind the policy to do so is because the sector this proposed legislation is dealing with relies heavily on volunteers and the tone of the legislation should reflect this”.
If that is the case for the Children First draft heads of bill, why does the same not apply for the National Vetting Bureau Bill, which covers almost exactly the same group / sector referred to above? It does not make sense and it seems prudent to ensure uniformity between the two draft bills, which are, essentially, cousins to one another.
Key Reference Documents
- Children First: National Guidance for Protection and Welfare of Children: guidance for individuals and organisations to keep children safe and protected from abuse and neglect and the roles of the HSE and An Garda Siochana in dealing with it.
- Safeguarding Guidance for Organisations: to be produced and promulgated by the HSE in respect of best practice advice for organisations.
- Guidance for the Reporting of Abuse: this will be the reporting framework and will be prepared by the relevant ministerial department for distribution by the HSE to organisations on the ground.
- Keeping Children Safe Plan: this is a document that each organisation will have to produce, based on the Safeguarding Guidance document and the Guidance for Reporting Abuse document.
Head 3 allows the Minister to make regulations relating to the Bill.
Head 4 allows for the payment of expenses in the administration of the Bill.
Head 5: provides that
the welfare and protection of the child… is to be the first and paramount concern
of all people to whom the Bill relates.
Organisations: Roles, Responsibilities and Duties
Head 6: Organisations with a statutory obligation to report child abuse
This is where volunteer organisations are going to need to take a deep breath. [Here’s an Irish Times articles that spells out why in big bold letters]
- An “organisation” is defined as any organisation that provides services which children can attend without a parent or guardian etc. and where an employee or volunteer has both access to or works directly with the child (head 6 (1))
- The services can be pre-school, after-school, recreational, cultural, religious, spiritual, or charitable, health care, therapeutic or disability services, residential or related to transport services (head 6 (2)).
- Specifically excluded are services relating to the general public, to employed carers/nannies/child minders/apprentices, 3rd level education, gyms, beauty and leisure facilities and play dates etc. (including private arrangements between families for looking after children).
- It is unclear why
gyms… and leisure facilities
are carved out from the definition of an ‘organisation’; and the explanatory notes fail to make the case why they are excluded. This makes little sense and should be clarified. If the compliance obligation is not so onerous that policy-makers feel that voluntary non-profit organisations should comply with it, then it seems illogical to exclude for-profit limited liability companies such as gyms and leisure centres.
Head 7: an Organisation’s Responsibilities
- These include: protection of children, appointment of a Designated Officer, preparation, use & updating of a Keeping Children Safe Plan (approved at management level) and available on request to anyone, operation with the Safeguarding Guidance for Organisations, ensuring volunteers/employees are suitable to work with children, making vetting applications to the National Vetting Bureau in respect of criminal record checks, actively promoting best practice on child protection for employees/volunteers and making clear the reporting mechanism for employees/volunteers as well as for parents/children; and providing training and ongoing mentoring and support.
- The organisation will be required to hold a detailed record of all employees/volunteers, accessible by the HSE and certified by the Designated Officer.
An Organisation’s Audit Committee
The organisation will also be required to appoint an Audit Committee to conduct an annual internal Audit
- benchmarking the organisation’s compliance with the Children First requirement,
- reporting to the Designated Officer and
- ensuring that any breaches that are remediable, are in fact remedied (unless the Audit identifies breaches of such significance that they need to be reported to the HSE).
The concept of the Audit Committee, as an internal sounding board for the work of the Designated Officer, is a novel one. Broadly it is a sensible solution (sharing out the responsibility for ensuring best practice in an organisation; however, again, will individuals on an Audit Committee be exposed to personal criminal liabilities in the event of failing to carry out their duties under the Bill? If so then it is can be reasonably anticipated that there will not be a long queue of volunteers waiting to put themselves forward to sit on the Audit Committee.
The Explanatory note for subhead (14) itself requires some explanation. It states:
The purpose of subhead (14) … if the Audit Committee has concerns that the organisation is in breach of the Bill it is to bring those concerns to the attention of the HSE
Whereas in fact subhead (14)(v) states:
If the Audit Committee is of the view that the organisation is in breach of this Bill and has concerns that it believes should be brought to the attention of the HSE, it should do so’ [emphasis added]
The word ‘and’ – that I have underlined for emphasis – makes it, as currently drafted, a two step requirement before an Audit Committee is compelled to report to the HSE on a breach of the Bill, namely: (i) the Audit Committee takes the view that the Bill has been breached AND (ii) the Audit Committee has concerns that it believes should be brought to the attention of the HSE. What is the intention here? As currently drafted there seems to be common sense implied (does the legislation really intend that every single ‘breach’ – however administratively minor – be reported to the HSE?); or does the explanatory note take precedence? Proportionality and clarity here is urgently required. It is submitted that as drafted is the best approach.
Head 8: Notification to HSE by organisations
Both new and existing organisations are required to notify the HSE of their existence, services and give details in relation to required information set out in the Bill. There is a lack of clarity however when it is stated:
Head 8 also provides that certain organisations, specified in Schedule II to the Bill, are deemed to be notified to the HSE.
Does the Bill intend to mean
… are deemed to have been notified to the HSE
(i.e. in effect as if they have in the past notified the HSE; replacing ‘to be notified’ with ‘to have been notified’, as set out in the Explanatory note to subhead (2)?). The confusion carries over into subhead (3), which again mixes up
organisations whether notified to the HSE or deemed to be notified
Head 9: Designated Officer – functions
most senior officer, manager or person
in an organisation is deemed (and should be appointed in writing) as that organisation’s Designated Officer.
The Designated Officer’s functions are delegable (i.e. can be passed on) to someone with the appropriate senior management experience.
Liability here is unclear: if the person to whom the Designated Officer delegates duties fails to carry out those duties, does responsibility lie with both the Designated Officer and the person to whom he/she delegated, or solely with the Designated Officer ?
The responsibility for the reporting of potential child abuse concerns ulitmately rest on the shoulders of the Designated Officer, together with reasons for non-reporting if that decision is taken. The decision not to report is one that is not delegable by the Designated Officer i.e. the Designated Officer must be in agreement not to report (providing a useful lock-step mechanism in respect of non-reporting cases) (Head 9, subhead (2)(d)).
Head 10: Duty to report to Designated Officer
This head requires all volunteers/employees to report any concerns they have to the Designated Officer; and that failure to report to the Designated Officer or direct to the HSE may bar that person from working as a volunteer in that organisation going forward (following appropriate procedures).
Head 11: Persons statutorily required to report child abuse
Interestingly, the list in Schedule I of those persons required to report concerns (other than Designated Officers) does not include lawyers (unless this is meant to be captured under ‘court appointed official’ which seems unlikely); is this due to the attorney-client privilege rule?
In any event, criminal liability attaches to the non-reporting of an offence with potential penalties: n summary conviction: a fine or imprisonment up to a year; on indictment: a fine or up to 5 years imprisonment (Head 20(1)).
The only defence appears to be that you had ‘a reasonable excuse’ not to report. It would be helpful if clarity were brought to this potential defence, given the onerous nature of the criminal liability attaching to the potential breach (head 11, (3)).
Clarity is also required on the criminal liability attaching to volunteers who fail to report. The Explanatory notes, and subhead (3), in the process of specifically referring to
‘A person described in subhead (1)(c) [i.e. the Designated Officer] or subhead (2) [those people listed in Schedule I to the Bill being, broadly speaking medical, health care and social work professionals] who contravenes this Head, without reasonable excuse, is guilty of an offence’
appears to be deliberately excluding those people listed at subhead (1) (a) and (b) i.e. those
employed or volunteers in an organisation … who hold a supervisory post and in that post is responsible for the supervision of employees or volunteers who work directly with children.
Put bluntly: is the offence committable only by the Designated Officer, as this appears to be the unintended consequence of the way this Head 11 is written? If so, then it appears that the Designated Officer of a voluntary organisation is going to be under enormous personal pressure – with personal criminal liabilities – that could, for all the good intentions of the legislation, have a profoundly negative effect on the willingness of part-time volunteers to step into the breach to take up the role of the Designated Officer.
On reflection it seems that the appointment of the ‘most senior officer, manager or person’ in the organisation as the Designated Officer, with delegable duties, is an intelligent way to ensure that responsibility rests at the very apex of a group, and is not sidelined (as it has been historically) to non-managing board members charged with children’s welfare.
Head 12: the HSE
Head 12 sets out the advisory and information roles of the HSE in promoting awareness and best practice as regards child protection.
One particular gap in consistency emerges from Head 12 (1)(f) that states that the HSE will:
Provide advice to Designated Officers and to persons who are statutorily required to report child abuse which will allow him/her to make a decision as to whether to report of [sic] a concern or allegation of abuse requires to be made under this Bill.
Head 12 (4) then states that, notwithstanding any advice given by the HSE
Advice provided by the HSE… is not a defence for not reporting concerns or allegations of abuse which meet criteria set out in the Guidance for the Reporting of Abuse provided for in Head 15’ [emphasis added]
Given that the explanatory notes (subhead (1)) states that
An information and advisory service is also provided to assist Designated Officers… who are statutorily required to report child abuse to allow them to decide whether to make a report of a concern or allegation of abuse to the HSE…’
it seems contradictory that subhead (4)’s notes should state that
The purpose… is to provide that the HSE’s advice to Designated Officers… so as to equip them to decide whether to make a report of concern or allegation of abuse is not to be used as a defence for not reporting such concerns or allegations if that report should have been made in accordance with the standard/threshold set out in the HSE’s Guidance for the Reporting of Abuse. The reasoning behind this sub-head [i.e. reliance on specific HSE advice not to report not equating to a defence for non-reporting] is to ensure that the advice given by the HSE is not used to facilitate non-reporting where a report should be made. The decision and responsibility to report rests with the Designated Officer or other person statutorily required to make the report.’ [emphasis added]
Surely this is the case of the HSE passing the buck? Either the advice of the HSE can be relied upon; or it cannot? Why is the HSE not capable of advising if any concerns or allegations meet the standard/threshold of their own organisation’s document, Guidance for the Reporting of Abuse? Surely if the HSE’s own standard/threshold is not met, then the Designated Officer should be able to rely on that advice. Otherwise, what is the point of the advisory service?
Head 13: Monitoring and dealing with reports (by HSE)
This section deals with the role of the HSE in handling of its child protection mandate.
Head 14: Written Directions, Improvement Notices and Prohibitions
This head governs the culture of compliance that the HSE is seeking to instill into children focused organisations.
If the HSE, on examination or inquiry, finds a compliance breach of the Bill that either
is, or is likely to involve a risk to the safety/welfare of a child’(head 14 (1) (ii))
then the HSE can issue what the legislation calls a ‘Written Direction’.
The Written Directions may require that the Designated Officer provide the HSE with an ‘Improvement Plan’ (head 14(2)) in which the HSE will require the Designated Officer to spell out the remedial action to be taken and by when.
Within a month of receipt by the HSE of the Designated Officer’s Improvement Plan, the HSE is to indicate if it is satisfied with the adequacy of that Plan, and can impose revisions with revised timetables as the HSE sees fit.
A slight gap emerges here as the Bill states that the Designated Officer is to submit the Improvement Plan to the HSE, which has up to a month to respond on the Plan’s adequacy; but the Bill also requires that the
Designated Officer… implement the plan
(subhead (3)(c)) before it has heard back from the HSE on the adequacy of the plan (my italics).
Perhaps this is to ensure that improvements are made as soon as possible; but it would seem more likely that a month is too long a period to expect the HSE to respond by, and that this should be shortened at the very least to 21 days if not 14 days (thereby reducing the delay in implementing improvements / ensuring that improvements envisaged actually reflect what the HSE wants to see improved).
If a Designated Officer fails, on receipt of a Written Direction from the HSE, to send the HSE an Improvement Plan, then the HSE may serve an Improvement Notice (note: not Plan) on the Designated Officer to return an Improvement Plan by the HSE-set deadline.
Subhead (6)(a) states that:
If the HSE is of the opinion that the Designated Officer/Organisation is contravening any of the relevant statutory provisions…
or has indeed failed to implement the Improvement Plan (and any revision) then it can serve the Improvement Notice on the Designated Officer.
Clarity is required here: is it
- the Organisation or
- the Designated Officer
that contravenes; or both? The definition (for the first time?) uses the phrase Designated Officer/Organisation.
Subheads (7) and (8) list out the information that will be set out in the Improvement Notice including the compliance breach, required remedial action and timelines; and subhead (9) compels the Designated Officer to confirm in writing that the Improvement Notice has been complied with. Once the HSE is satisfied that this is the case, within a month the HSE must issue a written notice of compliance to the Designated Officer.
The Improvement Notice to appealable in the District Court within 14 days and a District Court judge can vary, confirm or cancel the Improvement Notice.
Head 14 (17) gives the HSE a wide-ranging discretion to prohibit any part of an organisation’s activities if it is satisfied that it has just cause to do so; and this is done by service of a Prohibition Notice on the Designated Officer.
The Prohibition Notice can also include details of remedial action to be taken.
While the Prohibition Notice is, like the Improvement Notice, appealable to the District Court (this time within the shorter timeframe of 7 days), any activity suspended/prohibited by the HSE in the body of the Prohibition Notice remains suspended/prohibited unless a Court allows such restriction to be lifted ahead of the hearing of the substantive appeal on the imposition of the Prohibition Notice.
As with the Improvement Notice, the Designated Officer must give written notice that they have remedied the concerns identified in the Prohibition Notice, and the HSE in turn must issue a written notice of compliance within a month of receipt of such confirmation.
Given the potentially significant nature of the prohibition powers contained in the Prohibition Notice, it is suggested that the HSE be compelled to issue a response confirming compliance within 14 days of receipt of the Designated Officer’s confirmation of remedial actions taken (and not within the ‘month’ as currently proposed) given the limbo that the organisation will necessarily have been placed in as a result of the imposition of the Prohibition Notice (Head 14 (26)).
Tellingly – and this is where the cultural shift in child protection is happening, with best practice being taken out of the shadows and placed, correctly, at the forefront of society’s concerns – if an organisation has either an Improvement Notice or a Prohibition Notice served upon it, then
‘the Designated Officer will display it, or a copy of it, in a prominent place in the organisation and bring it to the attention of any person affected in any way by the Improvement Notice or the Prohibition Notice’. [emphasis added, (Head 14 (30))].
In the 21st century it is submitted that this must include on the organisation’s website – and this should be spelled out (assuming the purpose of it being placed in a prominent place is to ensure that people are fully aware of the situation).
Head 15: Guidance for the Reporting of Abuse
This section states that the Department of Children and Youth Affairs will be required to publish Guidance for the Reporting of Abuse. Interestingly Head 15 states that the Guidance should be published
via the Department’s internet service
(which in plain English means, I suspect, ‘on their website’). This is as it should be. However, depending on the length of the Guidance, it should at the very least be possible to purchase hard copies of the Guidance, should interested parties be willing and interested in so doing.
Head 16: Reporting Criteria
This section essentially requires all personnel involved in the welfare of children to report any concerns or allegation of abuse to either the HSE or An Garda Siochana. Interestingly, the obligation on An Garda Siochana to report the matter to the HSE is defined in (16)(2) as
as soon as practicable.
If ever there were words that enable a ‘fudge’, then those words are ‘as soon as practicable’ (question: how long is ‘as soon as practicable?’; answer: how long is a piece of string?). This should be given, at the very least, an outer time limit of say 7 days (if not less).
Co-operation and Information Sharing
Head 17: HSE and An Garda Siochana requirement to co-operate
It is a damning indictment of historical and existing bureaucratic procedures that legislation is required to impose both a mandatory duty of co-operation between the two state agencies primarily charged with child protection issues; and to spell out that the welfare and protection of the child is the first and paramount consideration (Head 17(1 and (2)). (This head also details that a Standard Reporting Form will be completed by the two state agencies when filing a report with the other agency).
Head 18: Data Protection Act
Head 18 is essentially a rider to the provisions of the Data Protection Acts 1988 and 2003, stating that (the policy intent is) nothing in those acts should prevent the exchange of information which is done for the purpose of protecting a child. It is likely that this will come under challenge in the future from a human rights perspective.
Children First Implementation Plans
Head 19: Implementation of this Bill by relevant Government Departments and the agencies under the aegis of those Departments
This section puts inter-department co-operation on a statutory footing: again, a damning indictment of the past.
Head 20: Offences
This has been covered earlier (essentially imprisonment or a fine, the levels of both varying if on summary conviction or on indictment).
Schedules I and II list, respectively those ‘Professionals Statutorily Charged with Reporting Child Abuse’ (Schedule I) and ‘Organisations Deemed Notified to the HSE under Head 8(3)’ (Schedule II).
All in all the Children First Bill 2012 is an extremely welcome legislative response to much that has rightly put this country to shame both in the distant and recent past.
The potential strains that the legislation will put on to grassroots groups, may, in hindsight, be adjudged to have had a dramatically negative effect on the recruitment of individuals to the voluntary role of children’s welfare. There is a very real risk – possibly understated to date – that unless handled with sensitivity and common sense, the very good intentions of putting Children First on to a statutory footing could end up with the unintended consequence of marginalizing the provision of children services/activities in geographic areas that are under-resourced and under-skilled to cope with the very high compliance levels required to satisfy the very good intentions of the legislation.
Above all else, children’s welfare and common sense should be able to go hand-in-hand: the test will not take place in the committee corridors of the Oireachtas, but on the ground, when the rubber hits the road, in voluntary organisations from Carlow to Kilkenny, Dublin to Cork, with committed people wanting to give children a fun place to spend some time.
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