Civil Law – Miscellaneous Provisions Bill 2011 – Second Stage

30th June 2011

I thank the Minister for his comprehensive overview. I take this opportunity to welcome the citizenship ceremony held last week in Dublin Castle. This was a very important ceremony and several people noted it as a very welcome initiative by the Minister.

When reading the Bill last weekend I wondered whether the title should be changed to the lost and found Bill because it was certainly an eclectic collection of albeit very important measures. It has certainly tested my mettle in my breadth of knowledge. I cannot claim to have knowledge in all the areas covered so I will limit my comments to areas on which I wish to comment or to measures I wish to note.

I welcome the Minister’s proposals on civil legal aid in section 26 of the Civil Legal Aid Act 1995 which will allow the Legal Aid Board to provide legal advice on criminal matters to victims or alleged victims of trafficking. This is a very positive measure as this is an important extension of powers so that any alleged victim of human trafficking will be able to get legal advice. However, I note that this does not appear to extend to representation for the victims in court proceedings nor will it protect the victims of the sex trade who do not come within the narrow definition of trafficking. I do not know if anything can be done at this stage with regard to this issue. I am concerned that while this is a very welcome measure to allow the Legal Aid Board to give legal advice to victims or alleged victims of human trafficking, it does not include legal representation.

Part 3 refers to proposals on good Samaritans. I read this section with particular interest because I am a long-standing volunteer with the Irish Girl Guides and I am bringing 22 girls on a trip this weekend to a 500-strong camp. If I am a little tired on Tuesday I will ask my colleagues to bear with me.

I have paid particular attention to this proposal which I welcome. It is important to discuss and encourage good Samaritans and volunteerism. This section will be a welcome addition to any discussion on community life. I read the Law Reform Commission report on civil liability of good Samaritans and volunteers and I note that many of the recommendations in that report are encompassed here. The proposal to deal with the civil liability of good Samaritans and volunteers is important. The Minister also accommodates the range of individuals who may constitute a Good Samaritan or a volunteer or the organisations or types of intervention. While it may be difficult to define, any measure to support people to take the initiative, is important.

I am involved in several voluntary organisations and I have noted an undue expectation of a duty of care. This may arise where, as a result of an accident, a case is brought against an individual or an organisation by a concerned parent. The problem is that the insurance companies will urge organisations to settle before it goes to court, thereby not allowing the courts to intervene as is proposed in this Bill. This results in an increase in insurance costs for the voluntary organisations. I can provide examples of where this has happened.

Part 5 deals with intoxicating liquor and I particularly welcome these provisions and the Minister’s words on this issue. I have been a rapporteur on two significant EU reports on alcohol-related harm. This experience has changed my opinion because I would have been slightly more moderate in my view on the issue of alcohol-related harm but the evidence speaks for itself. As the Minister observed, the Intoxicating Liquor Act 2008, which came into force in August 2008, introduces firmer penalties for those who sell alcohol to under-18s and it contains other welcome measures. However, enforcement has been limited and weak. I know this Bill cannot change this but I wish to bring this to the attention of the Minister while he is in the House.

Stricter government regulation is required to govern alcohol advertising and marketing. Alcohol advertising and marketing shapes children’s attitudes to alcohol from an early age and it plays a significant role in their decision to drink and how to drink. A review of longitudinal studies was carried out in 2009. This showed that the volume of alcohol advertisement in media seen by teenagers increases the likelihood that they will start to drink, the amount they drink and the amount they drink on any one occasion.

The Minister referred to the voluntary code. In 2003, draft legislation was prepared which was aimed at significantly reducing children’s exposure to alcohol advertising and marketing. Had this legislation been enacted it would have restricted the placement of alcohol advertisements, limited their content and banned the drinks industry sponsorship of youth leisure activities. This draft legislation went to Cabinet and had been approved. There then followed a change of Ministers and subsequently a voluntary code was introduced in place of the draft legislation. I note that this voluntary code mirrors exactly what was produced by the industry, including the grammatical errors. Therefore, the Minister’s comments this morning are all the more pertinent. I welcome the proposals in this Bill but I stress that any consultation cannot just be with the industry. This is an issue that affects society and there needs to be wider consultation. It is clear that a voluntary code alone is insufficient to address the problems and this view is supported by the World Health Organisation which has stated that self-regulation seems to work only to the extent that there is a current and credible threat of regulation by government. I endorse this view.

Part 7 proposes amendment of the Bankruptcy Act 1988. There has been much public debate in recent months with regard to bankruptcy and I welcome the proposals in the Bill. However, I also welcome the proposal by Senator O’Donovan to reduce the term to three years.

Part 8 proposes the amendment of the Family Law (Maintenance of Spouses and Children) Act 1976 and this is to be welcomed. It is an area in which the Minister has a wide experience and he is aware of its direct impact. These new measures will provide for a clear distinction between those who cannot pay maintenance and those who actively choose not to pay it.

Part 13 proposes the amendment of the Registration of Title Act 1964. My understanding is that the proposed section 31 which inserts a new section 49A into the 1964 Act, now provides that an individual can make application to register a right of way as a burden which will first require the consent of the landowner and second, this will only apply in circumstances where the land is registered land. The benefit of this measure is that court applications will be avoided where all parties consent and that registration and the ownership of the lands is registered with the Land Registry. It would appear that this section will not provide assistance to those individuals who are seeking to claim an easement over unregistered lands but, hopefully, this will be eased over time, as compulsory registration with the Land Registry is extended across the country.

My understanding is that section 28 proposes will extend the current deadline of December 2012. Is that correct?
I welcome Part 15 of the Bill which deals with miscellaneous measures. In particular I welcome the amendment of the Domestic Violence Act 1996. This is a critical amendment which is long overdue. I am pleased the Minister has taken this opportunity to amend the Act. Women who have a child with an abuser, for example, but who have never lived together or married, are currently a very vulnerable group. Where there is a child in common, there is often continued contact between the parents after the relationship ends and this contact gives further opportunity to abuse. The Minister’s proposal in this section is very important and will have a direct effect.
Women’s Aid has drawn my attention to a lacuna in the current provisions whereby dating partners who are not cohabiting and women being stalked and abused by ex-partners are totally unprotected under the Domestic Violence Act 1996 and will remain so. Protection from domestic violence should not be contingent on current or previous cohabitation and, therefore, safety orders should be available to all parties who are or have been in intimate relationships, as set out in the United Nations guidelines on domestic violence legislation. I hope there will be further progress in this area, and I welcome the steps taken in this regard in the Bill.

I thank the Minister for introducing the legislation to the Seanad. I look forward to our future co-operation.

Whistleblower Legislation – Motion

29th June 2011

I, too, welcome the opportunity to discuss whistleblowing legislation. I welcome the work done by Senator Mullen in tabling this motion. I also acknowledge the work of Transparency International in this area. It provided an excellent briefing for us which assisted us in our preparations.

In preparing for the debate on this motion, I talked to many NGOs because they are often left to deal with some of the consequences in this regard. I refer in particular to NGOs working in the area of older people, such as Age Action, whose representatives speak about front-line carers being the ones who have the exchanges with older people and who are seen as a trusted source. We need to ensure appropriate legislation is in place. An inspector will not simply inspect a premises and automatically see what is happening there. We need to protect workers whereby, if they come forward with an allegation, first, it is seriously considered and, second, action is taken.

The whistleblowers who came forward in the case of the Rostrevor nursing home did the State an excellent service. They risked everything to stop abuse happening. This took courage and integrity. The position of migrant workers has been highlighted by Migrant Rights Centre Ireland. Many migrant workers are particularly vulnerable because their work permits are connected to their employer. Therefore, there is a fundamental problem in encouraging them to be whistleblowers, where necessary. Senator Mullen answered a question I was going to ask about the 16% of workers in the Irish labour force who are migrant workers. I understand this is 16% of health and home care sector workers. I was surprised at that high figure.

We need to protect our whistleblowers because, if we do not, it sends a message to those in power that they can use that power. I understand what Senator Quinn said in this respect. Whistleblowing is not about running to the newspapers; it is about responsible employers and taking action. It is the carrot and stick approach. People need to feel that, if they do not take action, something will happen and that there will be consequences. That is the way life works. For me, that is a strong point as to why we need whistleblowing legislation. The State needs this protection for whistleblowers. It needs to ensure workers are confident, feel protected and feel they can put the welfare of people such as the patients in the Rostrevor nursing home first and foremost rather than having to be concerned about their residency status, worker permits and other related issues. This legislation is extremely important because it will a law that will challenge the culture of secrecy in Ireland. Senator O’Keeffe spoke on that issue. She rightly said that we cannot legislate for people to tell the truth. We can, however, protect people and ensure there is an appropriate culture to ensure people come forward and tell.

On that note, I acknowledge the words of Senator O’Donovan. The promised referendum on childrens rights is long overdue. I acknowledge that this legislation is not about children but it is about culture in Ireland. It is about listening to people and ensuring that, if people come forward with an allegation, we will listen. People believe that has all been accepted, but six years ago I started working with the Children’s Rights Alliance. I did an interview with a very well-renowned national broadcaster and talked about the need to listen to children. One would think that is a simple enough statement particularly when it comes to abuse. I was challenged on public radio with the response that children lie so why would we listen to children. Six years have past. I do not need to convince as many people that we need to listen to children but there is still a culture where people would claim that people lie, it is in their interests to lie so why would we listen.
There is twofold reason I am supportive of this legislation. I believe it will have the effect of changing our culture in Ireland, protecting employees and protecting employers in order that they can be responsible, take action and change that culture within their organisations. Successful businesses tell us that the culture of the organisation drives success. State agencies all too often have become complacent and we need to ensure we have that culture. We have seen the work of the Health Information and Quality Authority, HIQA, recently. Increasing demands have been made on it to get involved in more areas, especially in the child care sector, because it is building up a reputation of being able to listen to people.

I support the motion. I note the commitment in the programme for Government to bringing forward legislation in this area and I hope we will see it shortly. For me, this is about reversing the culture of fear.

School Transport – Statements

28th June 2011

I thank the Minister of State for sharing his decision with Members today. I have yet to hear of a person who is opposed to the school transport system. While I realise the predicament we are in, I equally recognise the unprecedented financial times in which we find ourselves and that we have not been obliged to face such decisions heretofore. Moreover, I agree with the need to rein in expenditure. Although all these points are a given and are not up for debate, one must be careful in the actions one takes to avoid incurring additional expenditure in other areas through unintended consequences. My question to the Minister of State pertains to the displacement of pupils to which this decision potentially could give rise and which could lead to the need to increase school buildings in some areas and to the closure of schools in other areas because parents will take a decision, based on school transport costs, to change their children’s school. As it is known that such potential unintended consequences could occur, the Minister of State should indicate whether there has been an assessment of the school catchment areas. My understanding is they last were closely examined in the 1960s. How do we know what impact these decisions will have?
Moreover, although I listened carefully to the Minister of State’s contribution, I found it difficult to understand the issue and as a parent, I am trying to envisage how do parents understand the impact this decision will have. If one considers the constitutional right that the State shall provide for free primary education, I note that parents are being asked for voluntary contributions for water charges, school books and other costs, on to which another cost now is being heaped. These costs are being heaped upon the same parents and children. While one might state that this is a single charge, that is not the case as additional charges are being heaped upon the same households and families. The Minister of State noted that school transport eligibility for all new children entering post-primary education will be determined by attendance at and distance they reside from their nearest post-primary centre or school. I listened carefully last week to the Minister talking about parental choice at the forum on patronage. However, it is not parental choice if one then states the only way in which one can avail of school transport is based on distance to the school. Does this mean that children in urban areas will get to have parental choice and will get to choose the schools they wish to enter but that those living in rural areas will not have the same choice? Equally, parents and children will tell me about the fact they have changed schools because a bad situation, such as bullying, has occurred in their school and all of us, at times, need a fresh start. Are we to say that those children will not be allowed that same fresh start, that they will not get an opportunity? These are the unintended consequences. Listening to the Minister of State, I note he very carefully outlined some of the questions to which we need answers. However, we should take these decisions with these answers in hand because I agree there could be a short-term gain for us but I question at what price and whether there will be long-term pain. I am thinking of the child and the impact on that child when a parent has decided the child is going to a school because it is within the 3.2 km catchment area rather than looking at what is best for our children and the future of their education.

European Affairs – Statements

22nd June 2011

I am pleased the Minister of State with responsibility for European affairs is present for this discussion on enterprise, innovation and job creation. She referred to reputation. Colleagues in other member states have told me how impressed they are with our new Minister of State following her visits to the Continent. I am delighted she is helping to rebuild our reputation.

I echo the Minister of State’s words about Commissioner Geoghegan-Quinn who has taken an active role since taking up her job. The Commissioner’s portfolio is critical for Ireland. It is good for us to be seen in this light.

As Senators will be aware, I have been a member of the European Economic and Social Committee for 12 years and vice chair of the European Movement Ireland. Clearly, therefore, issues of a European nature are crucially important to me. Part of our success will be working together with our European counterparts and other member states. However, if I may make a slightly negative point, in working on European semesters we have a missed opportunity to target smart, sustainable and inclusive growth. All too often, the focus has been fiscal consolidation and labour market and pension reforms without consideration being given to how we can achieve inclusive growth or putting in place growth drivers to enable the fiscal consolidation to take place. I am concerned, therefore, by certain elements of the course we are pursuing.

I propose to focus on two of the flagship initiatives under the 2020 strategy, namely, the new agenda for skills and jobs and the Youth on the Move initiative. The latter tackles the high levels of youth unemployment across the European Union. When one considers the variation in youth unemployment rates – in the Netherlands, my husband’s home country, it stands at 4.3% whereas in Spain it is currently 20.5% – one sees the challenge facing us. While each member state faces individual challenges, the European Union must meet collective challenges in countering youth unemployment. As a flagship initiative, I am pleased Youth on the Move has been given its own space. All too often, when the subject of youth is discussed, it is done purely in the employment sphere and associated matters such as entrepreneurship, training and education are overlooked. Youth on the Move claims it will unleash the potential of all young people. To achieve this objective we must give young people a solid basis in life.

The Minister of State referred to sanctions. All too often member states are willing to agree to lofty ideals but unwilling to set clear and measurable targets. As I indicated, unemployment rates vary considerably across member states although many of the challenges facing them are the same. We could set clear and measurable targets and indicators for each of the member states. If they were not met, some form of sanctions should be imposed. The rewards would clearly speak for themselves. With regard to young people, I have concerns that in dealing with our economic crisis focusing on reducing sovereign debt, we are reducing public investment in education and training, the very areas we will need to develop in the future. The teaching of languages is very important as are what are often called the STEM subjects – science, technology, engineering and mathematics. We need to focus on attracting more young people to take up those subjects. The early study and career guidance looking at the labour market needs and the skills of young people and providing entrepreneurship at all levels of education are also important. The Erasmus for Young Entrepreneurs programme was launched a few years ago and we could encourage more young Irish people to get involved. This Erasmus programme will give a young person the opportunity to go to another member state and look at opportunities of entrepreneurship there and bring them back. The Minister referred to the growth in the German market and we need to be thinking in this way.

I was in China recently with the Chinese economic and social committee. We were looking at areas such as inclusive regional development and the green economy. We often talk about our young people leaving Ireland and we see them as being gone forever. I was impressed that China is encouraging its young people to leave, but come back after a year or two and bring that knowledge back. That is a message we should be giving to our young people. While the jobs are not here, that will not necessarily be the case for life. We should be looking at training opportunities and upskilling. We should be exposing them to innovative and creative markets, and entrepreneurship. I recognise the Every Job Counts: Youth Solutions initiative to encourage entrepreneurship launched recently by the Minister for Children and Youth Affairs.

We can learn from some of our counterparts in other states about additional training opportunities for early school leavers and low-skilled workers. We have an issue of access to apprenticeships. We are often told that the best way a young boy can get an apprenticeship is to join the Army, which offers some of the best apprenticeships in the State. We should draw on some of that knowledge that it does so well and create apprenticeships to develop those skills.

The validation and certification of skills across educational settings is very important. This is true not just of the formal education setting but also in the informal education setting – looking at us buying into European skills passports, etc., so that when our young people go to other countries they are able to transfer that accreditation and qualification.

The big questions are on the spending programmes of the Europe 2020 strategy, such as research and development, and education. I am very conscious that we are lining up in Europe for a battle royale. They are likely to be reducing funding across all our multi-funding spending lines. I know that next week Commissioner Barroso will announce the financial framework beyond 2012 and I know the battle lines are being drawn up on this debate. It is a crucial time for the future of Europe and for Ireland. This is funding that has benefited Ireland greatly but how do we ensure we can maximise it? I am concerned as to how we, as Senators and others, can support Ireland’s role in tackling the funding crisis that will potentially loom as the funding reduces at a time when we should be investing more.

I am organising an event in September with representatives from several member states. I will contact the Minister of State in that regard. We are trying to bring experiences from different countries to try to use that knowledge and hopefully come up with some creative solutions and ideas that can be used in several member states.

Order of Business, 21 June 2011

21st June 2011

My first question is on special needs assistants because the lack of clarity is deeply worrying. We know the important role special needs assistants play. If we looked at it in a purely fiscal way we would see that we save money in the long term by supporting children in the early years to mainstream education. Special needs assistance was an indication of a major move from an old Ireland where we hid our problems behind closed doors but instead we have become a society of which we all wish to be a part. It is very important that we get clarity around special needs assistants and that children are allowed to be educated together as we would hope them to grow up in society together.

Second, I ask that the Minister for Children and Youth Affairs would update us on the national vetting bureau Bill and her intention to put the Children First guidelines on a statutory basis. That is often talked about but as we know reports will be forthcoming, not least the Cloyne report. It is a serious discussion because we make the statement that we should put the Children First guidelines on a statutory basis but in terms of the way we will do that this House could play a role in framing that.

My third question is on youth mental health. There are many actions in this area but they are not often co-ordinated among Departments. We should consider a debate to examine the various aspects of youth mental health, not just in terms of hospital beds but in schools also and the long waiting lists for children to be seen after a teacher has identified a need.

Death of Former Minister Brian Lenihan – Expressions of Sympathy

15th June 2011

On behalf of the Independent group, I, too, pass on my deepest sympathy to the late Deputy Brian Lenihan’s family, to his wife Patricia, to his children, Tom and Clare, and to all his friends and colleagues.

I want to focus on his work as Minister of State with responsibility for children from 2002 to 2007, because that is where I knew him best. He was a true children’s champion. He was the first to secure a seat at Cabinet for the children’s portfolio as a so-called super-junior Minister, but he really transformed that role. We have seen the progression even more so lately. During his five years in the post, he was responsible for the creation of the Office of the Minister for Children and he appointed the first Ombudsman for Children. He engaged rigorously and seriously with the UN Committee on the Rights of the Child’s process on monitoring Ireland’s performance. He also reformed areas such as youth justice and early years education.

Significantly, I remember his national play policy which saw the creation of a significant number of playgrounds throughout the country. Often, as politicians, to promote playgrounds does not always seem popular and I think he had to refer to the youth justice and early intervention programme, or something similar, when he was talking to the Department of Finance about playgrounds, but they are so important to childhood and he led that sphere. One will see those playgrounds throughout the country.

He also introduced the universal preschool year, which he defended as Minister for Finance. It is an important initiative that I hope will grow. He also introduced and commenced the national longitudinal study, from which I hope we will reap the rewards of learning of what works for children and what does not. These seeds have been planted and these trees will bear fruit. We will see in years to come what he did.

Most of all, I remember his work on the Constitution, both as Chair of the all-party committee on the Constitution – as a young person, I remember going before him asking for the voting age to be lowered – but also on children’s rights in the Constitution. In November 2006, the previous Government announced its intention to strengthen children’s rights in the Constitution. This was the time when people were questioning whether this should be done rather than when it should be done. I remember on 2 January getting the first of quite a number of telephone calls from Brian Lenihan because he had spent the entire Christmas consuming and reading every book, article and anything he could on the Constitution. He was brimming with ideas and I had to come in at the earliest opportunity. This led to a serious and deep engagement of telephone calls very early in the morning and late in the evening where he would sound one out. Many of us were used to those sounding-out telephone calls. For me, it showed his personal commitment to children’s rights and to strengthening the Constitution. When he was Minister for Finance, even with all the difficulties, he earmarked €3 million, which is still earmarked, for the holding of a referendum. He was a true friend and I will always be grateful for his passion, intellect and dedication to children’s rights.

As a Minister, he openly, collaboratively and respectfully engaged with non-governmental organisations. I, along with many others, will carry on the fight – his fight – to strengthen children’s rights in the Constitution and will do so knowing that he gave us a helping hand, and that he did this above and beyond the call of duty. May he rest in peace.

Progress on the 20 Year Strategy for the Irish Language – Statements

9th June 2011

Thank you very much. I apologise. Three weeks ago I did not know I would be standing here and I have another pressing commitment. I trust the House will understand.

I welcome the strategy and its ambitions. I hope I can be one of its successes by building on the Irish I learned at school and, in a future debate, I may be able to contribute as Gaeilge. That is a challenge I have set myself. I very much welcome the information provided by the Minister of State. The Cabinet sub-committee is central to driving the implementation of the strategy and I am happy that it has been established and has met twice. I look forward to hearing more about that.

I also welcome the fact that the Minister for Education and Skills is a member of the sub-committee. The backdrop to the debate today is the many thousands of students sitting the junior certificate Irish examination, including my nephew. I hope all our students, including him, do well. However, I refer to the issue of how Irish is dealt with in the education system. I welcome the changes being made, but we need to do more to ensure Irish remains a living language not only in gaelscoileanna but throughout our education system with children being exposed to the language in preschool and through the media and so on.

I lived for three years in Brussels, which is a bilingual capital. It taught me that all advertisements have to be in two languages. My husband is Dutch but I did not know him at the time. I gained great exposure to Flemish during my time in Brussels because I had French and I was able to compare both languages. Subliminally, one’s vocabulary increases. There is something to be said for subliminal exposure aside from formal education. For example, in our system, Irish classes are held for set periods of 30 or 40 minutes. The language should seep through our education system in smaller, fun and creative ways so that Irish becomes a living language for children from an early stage. They should not be restricted to set periods where they have to learn, rehearse and recite. They should be encouraged to play games and engage in activities. A number of sporting organisations are doing this and that is welcome. There must be a greater focus on the aural aspect of the language and we need to be creative in how we do that.

The Minister of State announced that there will be a new statutory definition of linguistic borders based on studies. Will he elaborate on the criteria that will be used and on the studies? I tried to research them but I was unable to establish whether they had been published. Perhaps he can advise us on this. I welcome his planned approach to Gaeltacht networks where Irish is spoken so that an appropriate environment can be created and they can expand.

I very much look forward to future debates on the language in the House. I hope we will be able to support the Minister of State in the implementation of the strategy. It is rightly ambitious. This is a good time for us to have this discussion but we need to examine the strategy’s implementation and ensure the language gets to live.

Order of Business, 7 June 2011

7th June 2011

I formally announce the establishment of the Independent group. The group comprises me as leader, and Senators Eamon Coghlan, Fiach Mac Conghail, Martin McAleese, Marie-Louise O’Donnell, Mary Ann O’Brien and Dr. Katherine Zappone.

I echo Senator Bacik’s call in respect of the recommendations of the United Nations committee against torture with regard to the Magdalene laundries. The Minister for Justice and Equality will shortly bring proposals to Cabinet. I ask that the Seanad be given an opportunity, following discussions at Cabinet level, to discuss the recommendations he proposes. We will have considerable views on this important issue.
I welcome the call for a discussion on the programme for Government. Perhaps this discussion can be held on a thematic basis to ensure that we get richness and focus in the debate.

Fourth Report of the Special Rapporteur on Child Protection – Statements

7th June 2011

I welcome the opportunity to debate the fourth report of the special rapporteur on child protection, the child law expert Mr. Geoffrey Shannon who has delivered a comprehensive and considered analysis of child protection.
I warmly welcome the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. As a new Senator, I welcome the appointment of the former Senator to her new role. As she stated, the Department of Children and Youth Affairs was established only last week, but I know she has been doing plenty of work behind the scenes, which includes the creation of a new agency dedicated to family and children’s services which will make a significant improvement and I hope have a positive impact on children’s lives.

I welcome the Minister’s response to the report of the Government appointed special rapporteur. Mr. Shannon is responsible for keeping under review and auditing legal developments in Ireland for the protection of children and identifying gaps in child protection. This is the first time that any of his reports is being debated in the Oireachtas. The need for this debate and subsequent action is evident to me.

Let us look back at the first report of the special rapporteur on child protection, which was written in the shadow of the horrific murders of Holly Wells and Jessica Chapman in Soham, England. In that report in 2007 Mr. Shannon identified the need for legislation dealing with soft information. He also outlined a road map. Years have passed and it is only in the past few weeks that we have seen action on this important issue under the direction of the Minister. I hope we will also see action in other areas.

We must deal with child protection in the here and now. In Ireland we can talk about the past and try to share and console one another. However, we have to try to atone for the past and for me the best way to do so is to ensure children are protected adequately and sufficiently. That will demonstrate we have learned the lessons of the past.

There are 105 recommendations in Mr. Shannon’s report. I will focus on some of the key areas at which we need to look.

I endorse the report completely and entirely. The first part deals with strengthening child protection structures. We still have a weak child protection structure in Ireland; neither the guidelines nor the vetting system operates on a statutory basis. The Ryan report implementation plan spotlighted these inadequacies. In his report Mr. Shannon has identified some of the gaps; for example, Children First: national guidelines for the protection and welfare of children is a voluntary set of guidelines. I acknowledge that the Minister is working to legislate, as well as ensuring a revised set of guidelines is published and, equally important, subsequent practice guidelines by the HSE are put in place. These need to be placed on a statutory basis because we need to ensure there is a collective duty to report concerns about the neglect or abuse of a child. This is a basic child protection measure that is readily applied in other countries. We need to get to the stage where one can report a concern and that it does not have to escalate immediately to one of abuse. As a voluntary leader, I can relate to this. At present, unless there are alarm bells ringing, it is very difficult to get the system moving. For me, success will be achieved when we start to join the dots. Should I have a concern for one of the girl guides in my care and the teacher have a concern, somebody should joins the dots and ensure supports are put in place to help the family to work and that if the child needs to be taken into care, he or she is.

On vetting and soft information, Mr. Shannon rightly identifies the failure to regulate the exchange of soft information has severely compromised the protection of children in the State. There were two cases in the courts in 2010 in which inter-agency co-operation was identified as a roadblock. In addition, we know that the appeal in M.I. v. HSE currently before the Supreme Court has the potential to undermine the vetting system. Mr. Shannon has raised a red flag and we should take action. I know that the Minister is working on this very pressing issue.

With regard to children and the criminal law, Mr. Shannon’s observations also provide much food for thought. It is very important to ensure practice and the law are always in support of the child victim and that all activities undertaken are in the best interests of the child.
Mr. Shannon raises the issue of disclosure in cases of child sexual abuse. At present, the confidential records are shared with the defence during criminal trials. Understandably, victims are often afraid that their personal records will be made available to the accused, resulting in fewer cases being processed. Mr. Shannon, therefore, recommends that Ireland urgently requires legislation and better regulation of the disclosure of children’s records during such trials.

As the issue of joint interviewing and training has been raised by several of my colleagues, I will not dwell on that point, except to say we need to ensure children do not have to undergo unnecessary interviewing. We should ensure their best interests are at the heart of investigations.

The third of the five areas involves children in the care of the State. As the Minister is aware, many children in the care of the State are extremely vulnerable. They do not have an adult to champion their cause, the role parents traditionally undertake. They really are marginalised and should be entitled to the highest possible supports. Regrettably, this does not always happen. We are all well aware of the high profile cases in the media where children have been utterly failed by the State. Mr. Shannon’s report makes some solid recommendations to mitigate such disasters and I recommend that they be taken on board.
Senator Mary White has called for the out-of-hours services to be available nationwide and I agree. I welcome the piloting of these services in counties Donegal and Cork and I hope this will ensure that at last we can get 24-hour support for children. I can get support if I have my pet at home, but I cannot get it for a child, which says something about our society’s values.

The Minister has said that addressing youth homelessness is a priority and the programme for Government contains such a commitment. Mr. Shannon is rightly critical of the Criminal Justice (Public Order) Act 2011 relating to begging as it applies to children. We must remember that children who beg are highly vulnerable and child begging strikes to the very essence of child welfare and children’s rights.

Several of my colleagues have raised the important issue of aftercare and how people do not suddenly become adults on their 18th birthday. It does not happen overnight and parents of 19, 20 and 21 year olds will tell me it is a transition phase into adulthood. We need to ensure the State provides aftercare support for all homeless children and children in care in order that we still hold their hand and gently helping them into independence and adulthood. The link between youth homelessness and children leaving State care has been clearly established. While this was not in the report, the latest housing-need statistics, gathered in 2008, show that the largest increase in demand for social housing was from young people leaving institutional care, an increase of 179% since 2005.

The report makes important recommendations on children’s mental health. I speak also in my capacity as chair of the Children’s Mental Health Coalition, which has given me an insight into how mental health difficulties can impact on any family, anywhere in the country and at any time. I fully support and endorse these recommendations. Among them, the report recommends that the Mental Health Act 2001 should be amended to include a separate section which clarifies the rights of children within the mental health system. This should include legislation to clarify the right of those over 16 to consent to medical intervention and detention in psychiatric institutions. Related recommendations include: an amendment to the mental capacity Bill to include persons aged 16 years, and the development of a detailed code of practice on admission to and treatment of children within mental health institutions, complaints mechanisms and better consultation with children.

I was delighted to see the reports very clear recommendations on child trafficking, an issue about which I feel very passionately. Child trafficking is a very serious issue and in Ireland we often would like to feel it does not happen. Some four out of five trafficked children are trafficked for sexual exploitation. Cases of child trafficking have been discovered in many parts of Ireland, including counties Dublin, Sligo, Kilkenny and Wexford. Last week, this was once again highlighted through a disclosure contained in cables obtained by a national newspaper through the whistle-blowing organisation WikiLeaks. HSE officials admitted to US diplomats conducting research for an annual report on people-trafficking in Ireland that children have been going missing from State care and ending up working as sex slaves in brothels. Mr. Shannon’s report recommends criminal sanctions against the users of paid sexual services and I welcome the Minister’s proposal to look at Swedish legislation with a view to introducing similar legislation to criminalise those who access these services.
I would also welcome our ratifying the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Ireland signed this optional protocol 11 years ago and now needs to ratify it. With the Adoption Act 2010 in place, we are very close to ratifying it and we need to do so. I am involved in a campaign with the Body Shop and the Childrens Rights Alliance, which has collected almost 150,000 signatures calling on Ireland to ratify this optional protocol.

This debate is extremely important but I hope it is not just a once-off debate. I hope the Seanad can review the implementation on an annual basis and use the special rapporteur’s report. One of the Oireachtas committees to be established should be charged with ensuring recommendations from reports of this nature are implemented. All too often we see these reports where we agree with the recommendations. We need to roll up our sleeves with a view to improving outcomes for children and make a difference. In all the work I have done on the issue, I have found this is not a party issue but an issue on which we agree across the board. I would like us to go beyond raising the complaints, and to support the Minister and her new Department in improving outcomes for children.

Criminal Justice – Female Genital Mutilation – Bill 2011 – Second Stage

2 June 2012

I thank the Minister for his comprehensive presentation of the Bill. I am delighted that we are discussing this legislation, which is the first measure on which I have shared my views. As previous speakers have said, this is a positive step and I hope the Bill will be passed without delay so it can be placed on the Statute Book. While my comments are aimed at strengthening and improving the Bill, I will be giving it my full support. I wish to thank the Children’s Rights Alliance, AkiDwA, Amnesty International Ireland and other NGOs for their briefings. I also acknowledge the leading and supportive role played by Senator Bacik on this important matter.
We all recognise the horrors of FGM as a gross violation of human rights, as well as being a critical issue concerning children’s rights and child protection. FGM has real implications for children living in Ireland today.

Families in Ireland from FGM practising regions have reported serious pressures from overseas families to bring their daughters back to have the procedures carried out. This Bill must make it abundantly clear that Ireland will not tolerate this practice. It must be passed to bring Ireland into line with the majority of European countries but, most importantly, it will help families and parents to counter pressure to submit their daughters to FGM. It should act as a deterrent to the continuation of the practice and deliver a clear preventative message.

I will use my time to focus on the Bill. As Senators, it is our duty to make this Bill as strong as possible. There are three important areas that I propose should either be amended or clarified. The first in regard to defences. I am extremely concerned about section 2 in terms of defences, which seems to allow for a surgical operation unnecessary for the protection of her physical or mental health. This is not an acceptable defence and should be removed. We know that FGM has no health benefits and involves removing and or damaging healthy and normal body tissue. I am also concerned that mental health could be used as a defence by a parent or guardian to remove a child from Ireland to undergo FGM abroad. If such a defence is used, that is tantamount to saying that FGM must be performed to ensure the mental health and wellbeing of a girl but I do not know how this could be used in a country like Ireland where FGM is deemed totally unacceptable. The use of such a defence effectively links mental health to culture, yet the Bill elsewhere rightly states that the defence of culture cannot be used.

The second issue I would like to mention, which several colleagues raised, is that of extra-territoriality. I welcome the inclusion of the vital principle of extra-territoriality, making it an offence for an Irish citizen or a person ordinarily resident in Ireland to commit or attempt to commit an act of FGM in another country. I note the Minister’s comments on this important issue but I am still concerned. Currently, the FGM act must therefore be illegal in the jurisdiction where the act takes place for it to be an offence. I am concerned about the issue of dual criminality, which the Minister has raised. This is an issue on which we need to send a very strong message to the effect that, regardless of the other country’s legal stance, in Ireland it is illegal and it must be illegal for a person to take a child to any other country. This to me is as important as terrorism and I would like that issue to be re-examined.

The third issue is in regard to the definition in the Bill on which many speakers have commented. The definition is close to the World Health Organisation’s definition, which the Minister referenced. I question why we would not use the World Health Organisations definition to ensure that it is abundantly clear.
I fully support the Bill, as drafted, but we could go further and send a very strong message.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”