Children’s Rights Alliance lecture marking the work of Jillian van Turnhout

Children’s Rights Alliance lecture marking the work of Jillian van Turnhout
Senator in Seanad Éireann from 2011 to 2016
in The Ark, A Cultural Centre for Children

13 April 2016

Speech by Jillian van Turnhout

Thank JvT Speech 14 April 2015 Photo (1)you Children’s Rights Alliance for this wonderful opportunity to reflect on my path to children’s rights advocacy and my term of office in Seanad Éireann.

So, what can you expect from this evening? I plan to start by sharing a bit about myself and my journey. I will use some of the legislation we dealt with in the Seanad to offer insights into both success and failure and how best to avoid the latter.  I hope you will find it interesting and to the NGOs in the room, I hope it will help you both understand life inside the bubble and how best to shape it.

As I look around the room I see so many friends and supporters.  I know I couldn’t do what I do without you.  On this note I want to begin by giving a very special thank you to my husband Michael who is my rock.  A huge thanks to my Mum, Jenny Hassett and my late Dad Michael Hassett for always believing in me and nurturing the eternal optimist in me who believes she can make the world a better place.  To my brothers John and Gerry for the reality checks and keeping me grounded. And to my sisters-in-laws Philo and Gina for always cheering me on.  My Researcher and Assistant in the Seanad over the last 5 years, Amy McArdle, is also here tonight and I want to pay her a special thanks for all her support and expertise as our time working together comes to an end.  Amy, I wish you good fortune as you move to your exciting new challenge.

My Dad lost his Mum at the age of 8 and lost his Dad less than 3 months later following a bicycle accident. Unbeknownst to him, my Mum, living only a short distance away, would soon be grieving the loss of her Dad. So much tragedy in their early years and both tell of how narrowly they escaped a fate in one of the children’s institutions we are only too aware of today. They were lucky you see. They both had strong, determined adults who believed in them. So, while they grew up in hardship, they grew up knowing they were loved. This is the gift they gave to me and my brothers, the gift of growing up wrapped in love. When asked what one thing I would want for every child?  My answer is always “to have an adult who believes in them fully and strives with them to realise their dreams”.  It has taken me until now to realise that their experience, and the experience they gave to us their children, was a key factor drawing me to children’s rights.

JvT Speech 14 April 2015 Photo (2)For the first 12 years of my career I worked in the private sector but throughout this time I was working with children and young people in a voluntary capacity not least through my involvement with the Irish Girl Guides. Anyone who knows me knows I’m a Girl Guide! I have endeavoured in every role and position I have held to date to live by my Guide Promise and Law to ensure that “I think of others before myself”.

Just over 20 years ago I was elected as Secretary General to one of the then three European youth platforms – it brought together all the International Youth Organisations at a Council of Europe level.  Over three years I worked in Brussels with the leadership of the other two youth platforms to successfully merge into the European Youth Forum – a sole platform for youth organisations across Europe.

On returning to Ireland I was honoured to be elected as President of the National Youth Council of Ireland.  Now, I know I’m showing my age here but I remember getting my first mobile phone in this role and the excitement of waiting for it to ring.  I also remember doing my first radio interview and my Mum, who remains my dedicated media consultant to this day, giving me her first piece of advice “I hope you are not going to be one of those moaners who is always complaining.  If you want to be a game changer then you need to focus on how to solve the problems”.

I went on to be a member of the European Economic and Social Committee which is an advisory body of the EU and was honoured to be elected to the position of Vice President.  As part of my work on the EESC I was a member of the EU-China Round Table, which took me back and forth to China over several years.  In this role I was the rapporteur on its Children’s Rights Report.

I still remember my job interview in the Central Hotel for the Children’s Rights Alliance in May 2005. I remember thinking it was a long shot since my professional experience until then was primarily in the private sector, albeit with the advantage of significant performance driven results expertise, but still it was only my voluntary work that was directly relevant to the work of the Alliance.  Perhaps I needed to think more like a man and focus on all the things I could offer.

In accepting the role I met every metaphor going-baptisms of fire, roads hit running, and deep ends plunged. Within my first year in the Alliance we produced a Shadow Report and had appeared before the UN Committee on the Rights of the Child, we also produced a children’s report to the Committee and had agreed a Social Partnership deal entitled, somewhat optimistically, “Towards 2016”.

In my time in the Alliance I worked with many wonderful and talented people and I would like to take this opportunity to wish one of them, Maria Corbett, every success with her exciting new venture.  Maria recently announced she is going to take up a full time PhD with NUIG to examine the process of how we decide to take children into care. I can’t think of a better person for the job.  During this time, I also developed a great relationship with Prof Geoffrey Shannon whose legal expertise I have always appreciated. Thank you both for your firm and lasting friendship.

It was on taxi ride through Shanghai’s equivalent of Temple Bar in 2011 that I received the fateful phone call from the Taoiseach, Enda Kenny, inviting me to accept his nomination to the Seanad. I hope you will appreciate just how surreal a moment that was for me! To this day I remember clearly him stressing that he wanted me to be truly independent and keep my own voice.

So this evening, in the spirit of ‘keeping my own voice’ I intend to peel away some of the layers of legislative mystery. While the Seanad transcripts will give you the “record” of how various Bills pass through the House, I will give you a behind the scenes look at what really influenced and shaped some of the legislation I worked on.

Finance (Local Property Tax) Act 2012
In preparing for the Local Property Tax Bill in 2012 I knew that many children and youth JvT Speech 14 April 2015 Photo (3)organisations owned residential venues and was concerned they would face paying significant Property Tax bills. I rang the Department of Finance to explain my concerns. As it happened, the Official I spoke to had had a daughter in the Girl Guides and got exactly what I was talking about.  In December 2012 I tabled an amendment to the Bill to exempt venues owned by children and youth organisations from the Property Tax. The Minister for Finance, Michael Noonan TD, did not accept my amendment but did commit to come back with an amendment to achieve the same aim in a few months.  I took him at his word and in March 2013 he came back and granted the exemption and specifically cited Guiding and Scouting as an examples of why he was doing so.

As we all know, there is often a disconnect between law making and the practical reality on the ground.  There is no better feeling in the world than knowing you have bridged that disconnect and won a victory for civil society.

Protection of Children’s Health (Tobacco Smoke in Mechanically propelled Vehicles) Bill 2012
On New Year’s Day 201JvT Speech 14 April 2015 Photo (4)6, the Protection of Children’s Health (Tobacco Smoke in Mechanically Propelled Vehicles) Act of 2014 came into effect in Ireland. This legislation extends the workplace ban on smoking to all vehicles where children are present.  The impetus for this important legislative change was in fact the Protection of Children’s Health from Tobacco Smoke Bill 2012, which I initiated with Senators John Crown and Mark Daly with the support of John’s assistant Shane Conneely. We started the process optimistically in spring 2012 with a view to its passage before the summer recess.  Instead what ensued was months of tedious meetings and games of tag with John Crown stressing the urgency of the Bill, Mark working the political aspects and me bringing the children’s rights expertise but also the diplomacy necessary to calm the waters and steady the ship.  Each of us played to our strengths. In the end, some three years later, even though only a handful of words from our original Bill remained due to amendments but we got it over the line.

Adoption (Identity and Information) Bill 2014
Tens of thousands of Irish adoptees don’t know their original names, who their parents JvT Speech 14 April 2015 Photo (5)are or their medical history.  In November 2014 I co-sponsored legislation with Senators Averil Power and Fidelma Healy Eames to recognise the right to identity of adopted children.

As an adopted child, an adoptive parent and a children’s rights advocate, we each brought our own unique perspectives to the table.  Thanks to cross party support in the Seanad we persuaded Government to allow the Bill pass through Second Stage (no mean feat!!).

For those who are not au fait with the legislative process, there are 5 Stages in the passage of a Bill but it is the middle 3 that are the most substantive.  In short:

  • First Stage initiates the Bill and gets it on the agenda of the first House (Dáil or Seanad);
  • Second Stage is the general debate on the purpose, intention and scope of the Bill;
  • Third Stage (aka Committee) goes through the Bill section by section and considers individual amendments;
  • Fourth Stage (aka Report) allows you to review issues raised at Committee and table additional amendments; and
  • Fifth Stage (Final) sees a vote on entire Bill.

A successful Bill then goes to the other House, and follows stages two to five and then hopefully it is enacted into Law.  Many Bills, particularly those not initiated by Government, fall or stall at one hurdle or another…and some reappear as a Government Bill down the line!!

Back to our Adoption Bill and we are now at Committee Stage the third stage of the Seanad process.  Unusually, since we were the authors of the Bill, we had tabled a considerable number of amendments to address issues raised by the Minister for Children and Youth Affairs, James Reilly, at Second Stage.  Averil and I worked as a tag team and it was the one and only time I occupied the Fianna Fáil front bench seats in the Seanad.  It became clear as we were working through the amendments that the Minister and his officials had decided to neither engage nor oppose our amendments.

While this was allowing us to whiz through the changes we proposed it was all very bizarre.  It was at this point I got a text message from an Official in the House kindly pointing out that the schedule did not limit us from pushing the Bill through all stages.  So, following a speedy consultation with Averil, we agreed to give it a go but not before giving the Minister his opportunity.  I took to my feet and asked the Minister if he would be willing to engage with us on our Bill before Report Stages, which we were willing to take another day otherwise we would progress all Stages.

At the end of Committee Stage we asked again and there was still no comment.  So we pressed ahead to Report Stage and then with thanks to the Government Senators jumped the final hurdle and took the fifth and final stage.  These last two stages took all of 30 seconds maximum.

We now had a powerful tool in our armoury on the Right to Identity for all adoptees.    We had a Bill that had passed unopposed through all stages in the Seanad.  Surely the Dáil could pick it up and amend it if and where necessary.

Our efforts pushed the Minister and the Department to publish its own Heads of Bill on Adoption (Information and Tracing).   The Heads had come a long way from formerly stated positions. There are still obstacles, which were highlighted during the excellent hearings by the Health and Children Committee and detailed in its subsequent report.  There are over 50,000 adult children whose right to their identity could soon be realised.  This issue is a ticking clock as many are aging and many not see the legislation published let alone enacted.  It is urgent.

Immigration (Reform) (Regularisation of Residency Status) Bill 2014
Passing legislation is never easy and unfortunately things don’t always go to pJvT Speech 14 April 2015 Photo (6)lan! Case in point, a Bill proposed by Senator David Norris and myself to provide a pathway to residency for asylum seekers who have been awaiting a decision on their protection application for 4 years or more.  We had worked on the substance and intention of the Bill with a number of individuals and organisations working with refugees and migrants.  We knew the Bill we initiated wasn’t technically perfect but we hoped for the support of the House to move the Bill to Committee Stage where the necessary changes could be made.   However, Senator Norris and I were blindsided by Sinn Fein.  They had been approached by another NGO working in the area who did not agree with the use of the term ‘amnesty’ and so lobbied to block its passage.  Sinn Fein voted with Government against the Bill and we lost the passing of Second Stage by 1 vote.  We never expected our Bill to pass into law rather we saw it as an important opportunity to highlight the appalling reality of Direct Provision and to put pressure on the Department of Justice and Equality to act.

I appreciate the motivation of the NGO concerned but I still think it was a short sighted step that showed scarce respect for their fellow NGOs and more importantly removed an important lever to effect change.

Children and Family Relationships Bill 2015
The Children and Family Relationships Bill really illustrates the importance of JvT Speech 14 April 2015 Photo (7)collaboration and I wish to commend the Children’s Rights Alliance not only for their work on this Bill but for their unstinting support and expertise during my tenure.  Tanya Ward, Chief Executive, has proven her leadership, vision and acumen in spades since taking over the reins in 2011.

The Children and Family Relationships Bill was tabled and debated against the backdrop of the impending Marriage Equality Referendum.  This coloured much of the debate on the Bill but this legislation was so much more.  It represented the most significant reform of child and family law for a generation and finally put children at the heart of family law.

I watched in admiration as the Alliance united voices by forming a working group of members with diverse views to analysis and co-ordinate advocacy action.  They provided briefings and strategic communications at every level needed to effect changes to the Bill.  The Alliance built consensus amongst their membership, generated media and organised events.  Indirectly their work built consensus and support for the recognition of LGBT people as parents.  At this point, I also commend Minister Frances Fitzgerald TD, Minister for Justice and Equality who personally steered this legislation through both houses.  It took 30 hours in Seanad Éireann alone.

As I talk about the Marriage Equality Referendum one of my greatest regrets in office is that we could not embody the same level of public engagement when it came to the Children’s Referendum.  The closest I got to tapping into mass public sentiment was JvT Speech 14 April 2015 Photo (8)when I took on Child Beauty Pageants. I was inundated with support from parents and the public.  It showed me there is a strong public appetite to protect childhood but we haven’t been able to able make the link in the public mind with children’s rights.

Marriage Age
Not everything must be done through legislation. Tabling Motions under group speaking time can be equally effective.  In May 2014, we had a Seanad debate on the abducted schoolgirls in Nigeria that Boko Haram had threatened to sell into forced child marriage. I took this opportunity to voice my concern that exemptions to the marriage age in Ireland mean that, strictly speaking, child marriage is not prohibited here.

In June 2014, Senator Ivana Bacik brought forward a Motion calling on the Government to remove the court ordered exception to the legal age for marriage of 18.  Aware of my own interest in this children’s rights anomaly, Ivana invited me to second the motion and I detailed how in 2012 28 child marriages were permitted to take place in Ireland.  Just before Christmas the Government committed to setting the marriage age to 18 without exceptions.  I hope this is brought into law soon.

On a side note, I must take this opportunity to thank Ivana and wish her every success in her Seanad campaign.  I have grown in respect and admiration for Ivana – she is a great person to collaborate with. She’s whip smart and has an expert legal eye for legislative scrutiny.

My lowest moment
If you had asked me a few days before the Protection of Life during Pregnancy Bill I JvT Speech 14 April 2015 Photo (9)would have said that this would be my most tense vote.  The debate was fractious, bigoted and filled with misinformation.  Little did I know my toughest vote would be within hours of that vote.

To set the scene, we were now operating in a Seanad where the Government was in the minority and needed Independents or opposition to support them.   In the short period of 3 hours leading up to my toughest vote I was shouted at in the corridor, grabbed, cornered and at one stage even pinned up against a wall – all by opposition parties and independent members– who felt they could ‘bully’ me into voting a particular way.   On a side note we are all friends again.  The vote in question was on a motion to delay the passage of the Referendum Bill proposing the abolition of the Seanad.  If I voted with the opposition, we would delay the passage of the Bill for 90 days.  However, in my head all I could think was that only six months previously we were one vote short of delaying the passage of the Social Welfare Bill that brought in the cuts to the Respite Care grant. If we couldn’t get our acts together to frustrate this utterly unfair cut, how in good conscience could we justify delaying the passage of a Bill that was about keeping our own jobs!!

No one from Government approached me about my vote.  On pressing the button I voted with my gut.  Along with my colleagues Senators Marie Louise O’Donnell and Fiach MacConghail we made the difference and ensured the vote for the Referendum would be put to the people.  The footage of the day will show how I was jeered and shouted at by opposition for being a ‘traitor’.  Funny how they changed their view when the people of Ireland gave the Seanad a mandate.

IndependentJvT Speech 14 April 2015 Photo (10)
Being independent should not mean you are automatically in opposition.  As a Taoiseach’s nominee I had to work out what independence meant for me?  From the outset I believed it meant dealing with issues on merit. I voted with the Government where possible and clearly articulating my position where not. In the end we were operating in a minority Seanad and so each time I voted it counted – a power I had to use wisely.

Following my low point in the Seanad I was feeling increasingly isolated from both the Government Senators and Opposition Senators.  Some Government Senators felt I should automatically vote with them as I was a ‘Taoiseach’s nominee’.  Coupled with this I felt an increased sense of responsibility as the people of Ireland had voted to keep the Seanad.

So, I sought a meeting with the Taoiseach and despite everyone thinking we were in regular contact this took a few months to set up.  In fact, prior to this meeting the only advice I received from him was during my first days in office to pick a few key issues and stay on them if you want to effect change. Sound advice that I endeavoured to follow.

I met the Taoiseach and he listened.  I explained my frustration with the system, with trying to put forward amendments and feeling I was working in an echo chamber.  He repeated the advice he gave me when he first appointed me “I want you to be yourself and be Independent”.   It was only when I reached out that he leaned in to help and provide support to me.

Following this meeting he set up a weekly meeting for me with an advisor from his Department.  The only thing he asked was where possible I would give advance notice when I was not in a position to support the Government.  The payback for doing this was access to influence and in particular securing wins on a number of policy fronts.  At no stage during my time as a Senator has the Taoiseach ever tried to influence my vote.

There is much debate and talk about Reform.  I find most Members are very happy to JvT Speech 14 April 2015 Photo (11)discuss any aspect of reform that won’t directly affect their lives.   I believe that reform begins with the individual.  I decided when I started to take a new approach to politics and so used my social media – twitter primarily – to account for my work and I also publish each year a statement of my salary and allowances to ensure maximum transparency.   Indeed, each year I return the unspent portion of my allowance and as there was no procedure up until last year I had to ‘gift’ it back to the Department of Finance.

An example of some of the reform introduced in my time is pre-legislative scrutiny to a significant number of proposed laws.  This allowed for Committees to bring in experts, civil society groups, public officials and the Minister responsible to provide testimony.

Health and Children Committee
My experience is on the Health and Children Committee.  In reality only five or six members keep each committee going.  If you attend for one minute or three hours your attendance is recorded in the same way.  I was fortunate that my Committee was under the excellent chairmanship of Jerry Buttimer who ensured we worked collaboratively and respectfully.  I am very proud of our work, much of it in areas I have already highlighted, but additionally our hearings on End of Life Care. I hope the report we published will come to fruition.

Many NGOs supported my work at the Committee. A particular thanks to Chris Macey of the Irish Heart Foundation and Angela Edghill of the Irish Hospice Foundation.  Their advocacy expertise was so helpful especially in my early days as was Chris’s sage advice when I was faced with a legal threat from tobacco industry stooges.

In a similar vein, I was happy to draw on my European experience in challenging the alcohol industry and its attempts to frustrate and stymie legislative efforts to address alcohol related harm.  The drinks industry has a role – to make profits for its shareholders.  They have no role, whatever guise they choose to wear, in the formulation of health policy.   I think my views are clearly known.

Senators shouldn’t have constituencies. Certainly not geographical ones.  As an independent Taoiseach’s nominee I definitely didn’t have one but I did endeavour to use the platform I was given to continue working with NG0s, civil society organisations, community and voluntary sector organisations and interested members of the public to JvT Speech 14 April 2015 Photo (12)help achieve our shared objectives.  I want to thank each and every one of you who has helped and supported Amy and I throughout the past five years across a broad range of issues. Your insight and expertise has been essential to the quality of our input and in helping us to convey the reality on the ground.

One thing I would stress to you is the importance of collaboration. It is the missed opportunity I see all too often in Leinster House. An organisation will come to meet me in my Seanad office and say “A is critically important” and then the next day another group within the same sector will come to me and say “B is the most important”.  These groups need to work together to determine and agree the priorities, not offer a choice for politicians to decide.

Coin drop machine
One of the greatest privileges of being a Senator is theJvT Speech 14 April 2015 Photo (13) opportunity to meet and engage with a wide range of peoples who bear witness to their personal circumstances.  We
have done so much damage in the past and the only way we can truly demonstrate we have learnt from our mistakes is through the actions we take now.  I wish I had a magic wand or a do-over. Instead I feel I am operating one of those coin machines you see in arcades.  You have to put a lot of coins in to hit the tipping point for change.

There are many issues where I feel I have put in a considerable amount of coins but we have yet to see progress. In particular, I highlight the situation for transgender, non-binary and intersex children.   In 2015 Ireland passed ground breaking gender recognition legislation into law.  However, it is silent when it comes to children under 16 –despite my efforts to introduce an interim gender recognition mechanism.   Minister James Reilly has committed his Department to doing more research in the area in time for the review of the Gender Recognition Act in 2017.  I am also sitting on a Working Group hosted by TENI and hope with several others to ensure children have a voice and a place in our laws.

JvT Speech 14 April 2015 Photo (14)
I cannot leave today without mentioning the untenable homelessness crisis faced by children and their families, which is compounded by the shortage of social housing and the State’s failure to regulate the private rental sector.  It is incumbent on us to ensure all children – homeless children, children from the Traveller community and children in Direct Provision –  have secure and appropriate accommodation.

Corporal PunishmentJvT Speech 14 April 2015 Photo (15)I want to end on a high and the achievement of which I am most proud- havingchampioned and secured the effective ban on the physical punishment of children in Ireland.  A few months before this win a high level official in the children’s area told me that it would be impossible.  I succeeded by drawing on all in my armoury – all that I have amassed and using every ounce of social and political capital I had built up.   I have documented the official story in the Irish Journal of Family Law but let me take you behind the scenes here.

As early as 2011 I had spoken in the Seanad on the need for Ireland to repeal the defence of reasonable chastisement and I continued to raise the issue throughout my tenure. Behind the scenes I researched the issue, drew on International experiences and identified the piece of Legislation I would use as my vehicle.  The Children First Bill was perfect as it was about child protection and yet it contained no penalties or sanctions and so no one could say I was trying put parents in jail.  I also knew the Government would work to ensure this Bill was brought into law as it was a key plank of its reform of child welfare and protection.

The Committee Stage of the Children First Bill was taking place on 23 September last.  At 10am the previous day I met an Advisor and several officials from the Department of Children and Youth Affairs to discuss my amendments to the Bill.  Over the summer recess I submitted several substantive amendments and I had been waiting for this moment.  In our meeting I said I was willing to concede on the other amendments but that corporal punishment was my red line.  They tried very hard to dissuade me but I did not see any other Oireachtas Member willing to put their head above the parapet on this issue and so I had to do it before my time was up.  Even if I lost, I intended to force a vote and let the record show who in the Seanad was willing to be listed as saying it is acceptable to hit children.   It was a tense meeting.

At 4pm that same day, I was invited to meet Minister Reilly and the Secretary General of the Department.  My persistence on the issue meant he had spent the day trying to find a way forward through discussions with his officials and the AG.  In that meeting he gave me a commitment he they would do the change but I needed to buy them some time to work out the how.  We agreed that I would postpone a vote at Committee Stage but one way or the other we would be voting on an amendment at Report Stage.

I had been working with the NGOs and in particular the Children’s Rights Alliance, ISPCC and Mummy Pages who were all outstanding in playing a subtle but vital role in getting the ban on corporal punishment over the line. It worked, with thanks to my fellow Senators who all supported me; the NGOs and children’s rights advocates; and some really outstanding civil servants and advisors.

Through this action the Government has put children first and provided leadership that will hopefully give confidence to other countries across the globe, including our nearest neighbours, to protect children from violence.

There is so much more I could mention but let’s keep it for another day!  It has been a roller-coaster ride that I feel so privileged to have been on. I learnt so much, not least how to hold my nerve and persevere with my eyes fixed firmly on the goal.  I believe I made the most of the opportunity.  I worked extremely hard to effect the most change I could. I don’t know what my future holds but as ever I am optimistic and confident that I will rise to my next challenge.

I would like to thank my fellow Senators from across the house for their collaboration and cooperation.  It has been an immense honour.  Most of all I wish to thank all of you for your input and support during my tenure.    Thank you the Children’s Rights Alliance for giving me an opportunity to share my experiences and to the Ark for providing such a wonderful venue.  Thank you ALL.


Modern Wife, Modern Life Launch, National Print Museum, 1 July 2015

I was delighted to be asked to launch this exhibition, Modern Wife, Modern Life, curated by Ciara Meehan senior lecturer in history at the University of Hertfordshire, which explores the representation of women in Ireland through the prism of women’s magazines in the 1960s.

This is such an interesting concept for me and a unique way of documenting a period of Irish history where woman’s lives were almost exclusively restricted to the private domain, where “traditional values” prevailed, women were legally obliged to leave their public sector employment upon marriage, were prohibited from sitting on a jury and for whom many were too young to know or remember the one and only female Minister (Countess Markievicz 1919-1922).

Yet, in parallel, we see magazines such as Woman’s Way, Woman’s Choice and Woman’s View promoting new expectations alongside traditional moral norms, challenging women to negotiate competing demands on minds and bodies in their everyday lives.

It is fascinating to learn that in the 1960s, the media trend was to sell women the idea that the “ideal wife” was synonymous with the “modern wife” and that in order to achieve this coveted title she must have and use the latest gismos and gadgets in her home, particularly in the kitchen.

We have an example of one of these then “New Technologies” on exhibit, Rita MacCready’s sewing machine, which she bought from a door-to-door salesman and, like many mothers in the 1960s, used to make her children’s clothes. Rita’s daughter Audrey is here with us this evening and it would be interesting to know if her mother’s love of haberdashery or sewing rubbed off on her?!!

Despite the “traditional view” of the woman’s place being in the home and ideally married still being enshrined in the Irish Constitution, the majority recognises the view as outdated and sexist.

It did get me thinking about whether this stereotyping of 1960s women as domestic goddesses or wannabe goddesses is any more offensive than the contemporary media obsession about how women of all ages look and perform.

I had a look through the shelves in Easons yesterday evening to get a flavour of the messages Irish women are receiving from magazines in 2015:

“Fifty, fit and flirty”, “How to shift that stubborn baby weight”, “Science validates correlation between hair length and relationship length”, “bikini ready in 7 days”, and enough instructive material that I could re-write the Karma Sutra!!!

Have we really moved on or has the focussed just shifted from the kitchen to the bedroom and incessant talk of weight loss and the quest for eternal youth?!!

Are Irish women destined to be subjected to some form or other of commercial pressure forever?

The exhibition comprises 8 themes:

Inspiration, Print Culture, Advice for the Newly Married Wife, Beauty and Presentation, Housewife of the Year, New Technologies, Women Behind the Wheel and Wives who Work.

Mum and Dads Wedding:

I was drawn to the Advice for the Newly Married section of the exhibition. Admittedly because my own Mum and Dad’s wedding picture is on display.

My mum, Jenny (nee Coleman) who is here this evening married my father, Michael Hassett in the chapel of the Ursuline Convent in Blackrock, Cork in September 1962.

My dad was very involved with the Scouts in Cork and it was expected by mum’s friends from the Red Cross that the Scouts would provide the guard of honour at the wedding.

Just in case, mum’s friends had brought their Red Cross uniforms and left them in a friend’s house close to the church.

It soon transpired at the wedding that dad’s Scout friends hadn’t thought about the guard of honour and the women discreetly left the church and returned in time and in full uniform to provide the guard of honour after the ceremony.

Eileen Crawley’s wedding dress:

Not to sound too biased, but I must say how stylish I think my mum looked on her wedding day. I love her hooped mid-knee vintage style dress that was so popular in the late 50s and early 60s.

There is another splendid example of 1960s wedding dress style in the exhibition with Eileen Crawley’s wedding dress on display.

Joseph and Margaret Teeling’s Wedding:

I also love the images from Margaret (nee Thompson) and Joe Teeling’s wedding in 1965. They had met 5 years earlier as teenagers after Joe, in a remarkably romantic move for a 17 year old, quit his job in a pub to work in the Casino Cinema, where he had discovered his soon-to-be sweetheart Margaret worked.

Not even being stood up on their first date, although Margaret insists she did go the meeting spot, could dampen Joe’s interest. A second date was arranged and the rest, as they say is history!!!

Margaret and Joe just celebrated their 50th wedding anniversary on 17 February this year.  A true love story and I wish them another 50 years of marital bliss.

Are you an ideal wife quiz:

Finally, I have to admit to the laugh I got reading the questions and answers of the Are you an Ideal Wife? quiz.

Question 7 asks: When he comes home from work do you (a) listen to him sympathetically or (b) tell him the troubles of your day?

Answer: You should (a) listen to him sympathetically because you have by now the diplomatic art of TIMING. Let him grouse first. Then he’ll listen to you with more sympathy.


Question 15 asks: You are both going to the movies. You want to see (a) and he wants to see (b). What is the solution?

Answer: Take alternative weekends. If you go to the Western with him (and pretend to enjoy it) one Saturday, the following week he should drive you to a thriller.

That’s some pretty important advice about the art of TIMING and compromise in marriage!

My favourite part of the quiz is that there are 17 questions and answers but no marking scheme. Somehow you have to work out if you are in the 100%-50% range that is “learning how to be the ideal wife” or in the less than 50% bracket that needs to “watch it”!!

Thank you Ciara for this opportunity to launch Modern Wife, Modern Life: An Exhibition of Women’s Magazines from 1960s Ireland.

I now declare the exhibition officially open and invite everyone to enjoy this important snapshot of women’s history in Ireland.

Legal Services Regulation Bill 2011: Second Stage 13 May 2015

I warmly welcome this Bill in principle, which is intended to deliver greater speed and transparency and easier access, as well as to tackle excessive legal fees. It represents the most comprehensive reform of our legal structures and legal services industry in the history of the State.

We have a great responsibility as legislators to deliver this reform responsibly. I want to sound a loud note of caution at this stage about putting on a statutory footing any rules that are incompatible with competition law and in particular any rules that have already been ruled by the Supreme Court to be non-judicable and therefore not legally binding. For instance, in 2005 the Supreme Court ruled that the code of conduct of the Bar Council of Ireland is non-judicable. The reform provided for by this Bill is crucial and long overdue. We must devise an appropriate balance between the right of the public to access justice by way of recourse to a well-functioning legal profession at a fair cost, and the needs of legal practitioners to carry out their work in an appropriate and professional environment for reasonable remuneration.

We must also acknowledge that action in this regard was a prerequisite of the EU-IMF-ECB troika programme and the enactment and delivery of the Bill remain the subject of a country-specific recommendation under the EU semester process which has succeeded the troika programme. The European Commission will therefore continue to monitor the Bill’s progress closely.

In developing the Bill, both the Minister for Justice and Equality, Deputy Fitzgerald, and her predecessor, Deputy Alan Shatter, have dealt with many of the most complex and significant issues in our democratic system. These include the constitutional independence of the legal professions and the role of the professions in enabling citizens to access justice and in its fair administration. I cannot emphasise too strongly the importance of access to justice. I will raise two issues at this juncture, the first of which concerns costs. Access to justice for all regardless of income or background is a core democratic value, yet it has long been known that legal costs in Ireland are prohibitive for low-income families. Ireland shares with the UK the dubious honour of charging the highest legal costs in Europe. The Bill purports to deliver a new and enhanced legal costs regime that will bring greater transparency to legal costs and will apply to both barristers and solicitors.

The high legal costs regime in Ireland is caused by severe restrictions on access to lawyers. There are hundreds of barristers who are available and willing to act directly for consumers but are prevented from doing so by the Bar Council in so-called contentious matters and many other matters. A sum of €1,000 to €1,500 would get a meeting with a solicitor and an opinion from a barrister on a routine matter. That is a significant amount of money for the vast majority of people in Ireland. Many will think of it as a monthly mortgage payment, a month’s rent or a month of child care. The courts are currently awash with lay litigants who simply cannot afford to pay for formal legal representation. I am reliably informed that many barristers would be only too happy to act directly for those lay litigants for modest fees. For them, some work and some payment is better than none.

However, there is an issue concerning direct access to barristers. On closer inspection, direct access is permissible only in non-contentious cases, which represent a mere 2% of barristers’ work. The response that contentious work involves handling client money does not add up, as not all contentious work involves this. Of course, there must be rules around handling client funds. Such rules already exist in the Solicitors Act and could very easily be applied to barristers. Instead of seeing barristers leave the profession in large numbers, as happened particularly during the recession, they should be let stay and earn a living providing excellent, good value and lower-cost services on a direct professional access basis. There is no legislation on the Statute Book preventing that.

We need to exercise extreme care in putting the prevailing anti-competitive restrictions concerning barristers onto the Statue Book. Indeed, as the Bar Council itself is not currently a statutory body but a private body, I wonder why it is being put on a statutory footing at all. I remain unclear on this and perhaps the Minister can clarify it.

The second issue I wish to raise concerns the restrictions on advertising and commercial communications by lawyers. The Irish Competition Authority’s report into the competitive practices of barristers and solicitors in 2006 concluded that the legal profession was in need of substantial reform and was permeated with unnecessary and disproportionate restrictions on competition, the overall effect of which limited access, choice and value for money for those purchasing legal services. It recommended:

 for both barrister and solicitor advertising that:…the existing rules should be reformed. Truthful and objective advertising gives clients useful information and helps them to choose among competing lawyers. Advertising should be controlled in a more pro-consumer manner by way of rules that focus on preventing factually inaccurate advertising or advertising which would bring the administration of justice into disrepute.

Despite a target date of 2008 for the implementation of the Competition Authority reforms and despite the initiation of an infringement procedure against Ireland by the European Commission in November 2013 for continuing to allow the Bar Council to maintain the restrictions it has on advertising, and a letter of formal notice in late 2014, what we see before us in the Bill, namely, in section 158, still does not comply with Article 24 of the services directive, regulation No. 25 of SI 533/2010 or the Charter of Fundamental Rights.

I am very concerned that the State’s course of action in failing to address the deficiencies and in resisting the Commission’s case since 2013 is building up a liability for the Irish taxpayer. I acknowledge the commitment by the Minister, Deputy Fitzgerald, in the Dáil, specifically in response to an amendment tabled by Deputy Catherine Murphy, that she will table an amendment in this regard on Committee Stage in the Seanad. I look forward to considering that amendment. I note with slight concern that the Minister spoke of finding the appropriate balance between the exigencies of the services and those of Government policy. Ireland is required to comply with the requirements of an EU directive.

I will engage on Committee and Remaining Stages but I wanted to outline the two areas which I believe need greater attention.

Statements on the Charities Sector

February 4th, 2014

Senator Jillian Van Turnhout speaking on the issue of the Charities Sector: Statements. Seanad Éireann

I hope not to use all my time. I agree with what my colleagues have said, so I will not repeat, in particular, what my colleague, Senator Mary Ann O’Brien, has said. It is important to instil confidence and trust and also that there is ease of access to information. Senator Feargal Quinn gave us some examples from the US. I wish to pick up a point raised by Senator Mary Ann O’Brien in regard to the use of SORP and compliance and the proposal that all salaries above €75,000 be declared. We have had a huge focus on chief executive officers. I have seen organisations finding a way to skew this by employing their chief executive part-time but having other officials within organisations at much higher salaries on a full-time basis.

I wish to add to what Senator Mary Ann O’Brien said by proposing that we would know all salaries above €75,000. When I talk about salaries I am talking about the remuneration package, any health insurance benefits, pension benefits and anything extra, such as cars, that are not in the normal cut and thrust. I would also like to know how much time that person is giving to that job, whether it be 100% or 50%. In that way we should know pro rata what is their salary. We have seen organisations appear before various committees which have worked only part-time for a public service and part-time for a private service and yet seem to be able to get a multiple times salary for that work.

I am somewhat concerned over the use of the term “charity”, which is being used quite broadly. My real concern is over the use of public money and how the State is funding organisations. Regardless of whether an organisation is set up as a private company or a charity, I want to know that that public money is going to good use. I want the same scrutiny to apply to them and I do not want a public company to hide behind company law and claim that as a public company it does not need to declare this.

I have a concern where the State is funding 100% or 90% of some services. In those cases should the State not run the service rather than it being called a charity? I believe there is an historical legacy for us here. We have organisations which started with really good purposes – traditionally religious organisations providing services mainly in the medical field. They have now professionalised and are running organisations with multi-million euro budgets. However, if we question their work they will rely on that historical legacy to get them out of trouble. I have a major issue with that because the same yardstick should be used regardless of the service provided. There is an issue with the State funding some organisations which historically get an increase of 2% or a reduction of 5% on the previous year. It is just up or down with the normal trend and all organisations are dealt with by way of the same measure. There is an issue where no tenders are sought and no responsibility on the State to outline what service it is expecting for its money. Let organisations come in and bid to provide those services.

Did the Minister know that the new Child and Family Agency will fund 700 organisations? I still do not know what all those organisations are. We have a responsibility and we have an opportunity to change it.

The Minister is moving as quickly as he can on the issues of the regulator and the board. While the regulator needs to be resourced it needs to be given the teeth such that if it has a concern it can address it. I have come across statements at committees or in the media which I have read repeatedly and tried to understand what they are telling us. It is like a secret code and it is necessary to parse the words. I still do not know if I understand what they are telling us or if they are telling us the truth. When the regulator is set up, some organisations will rush to compliance, but I am worried about agencies that believe they will swing around to compliance or use such terms. If the regulator is not getting the information it needs about these organisations, we need to be sure we will be able to back it up.

I totally agree with my colleagues and simply wanted to add those comments.

Written Response

Report on the Grocery Sector by the Joint Agriculture and Food Committee

Wednesday, 20th November 2013

I welcome the Minister of State. This report is outside my work area, so it is great we can have this debate and that I can get an opportunity to hear my colleagues who have been able to provide such expertise in the drafting of the report. I thank my colleagues on the Oireachtas Joint Committee on Agriculture, Food and the Marine, namely, Senators Comiskey, Mooney, Mary Ann O’Brien, Ó Domhnaill, O’Keeffe and O’Neill. I join in the thanks and commendations to Deputy Andrew Doyle who chairs that committee and who brought all members together. Reading the transcripts of the debates and the report, the committee produced a final report endorsed by all.

I am part of a group which includes Senator Mary Ann O’Brien who has yet again proved her expertise in her area and demonstrated that balanced approach. I am speaking only as a consumer but we are able to have the full package as others are able to speak about different areas.

I would like to speak about a few issues concerning the recommendations contained in the report. Some of the issues were contained a Private Members’ Bill entitled the Food (Fair Trade and Information) Bill 2009, but this report goes further than that. We have heard in this debate about the importance of the food sector to the economy from the perspective of the number of people employed in the industry and our ability to continue to grow exports, which is critical now but also in the years ahead. We want to ensure we continue to have that growth but we need to look at the recommendations in the report.

It is fair to say this report seeks to address one of the main issues in the sector which is the dominance of some of the large retailers in the grocery sector. This is the elephant in the room that we are discussing today. It is an issue we need to tackle head on. There are many positives but we also need to look at some of the negative consequences and find the way forward.

I appreciate and understand that perhaps we have to look to the EU and at an all-island approach, but will we be followers or will we take the initiative and a leadership role and say what we need to do, how we protect the consumer and the producers and that what lands on our tables is good quality food? Everybody wants to achieve that, so how do we do it?

I refer to the example Senator Mary Ann O’Brien gave us about the disparity in milk in prices. I have no doubt that if we were to drill down, we would find many other examples. That raises the question as to who is winning here. It is not the producers or the consumers. There needs to be a way where, to an extent, everybody can win and where nobody has the monopoly of winning the game every time.

I very much welcome the committee’s recommendation to amalgamate, under the consumer and competition Bill, the Competition Authority and the National Consumer Agency, which has been mooted for some time. I am glad that will come to fruition because to me, as an outsider, it makes sense. The directors of the authority and the agency have been planning for this and I am glad this process can get under way formally when the legislation is enacted. That move will benefit the consumer in the long term.

Many Members spoke about profits and gave different perspectives, which is very healthy. Sometimes there is deliberate confusion in terms of people having to give their margins. Giving the profits of a company does not give one the individual price sensitivity of a margin. We need to be very careful. We expect small companies and retailers to disclose their profits and yet we are saying that large multiples can, in effect, hide them. In the UK, some major companies which have not paid their tax have been exposed. I want to know how we can be assured that Ireland gets is fair slice of the tax take for these companies. Do we connect up with the UK, Belgium and France to check if we are getting our fair share or do we rely on the companies to tell us what they are getting with no checks and balances? We have to go further on that issue and I do not accept the lobby from the large multiples on it.

We could have a big discussion on alcohol. I do not agree with Senator Barrett. We need to get serious. There is legislation in place which needs to be commenced on separating the sale of alcohol from other grocery goods. At the very least, we should commence that. We do not have to wait to discuss it or draft it.

Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act (Commencement) Order 2013: Statements

Tuesday, 24th September 2013

The Minister is most welcome. It is very useful to have this opportunity to clarify the provisions we are discussing. People throughout the country are eager to know what form the banking inquiry will take. It is a welcome development that this House is being used as a forum to allow the Minister to set out exactly what is proposed.

I echo Senator Thomas Byrne’s comments on the Committee on Procedure and Privileges. It is important that both Houses have a role to play in this investigation. It is also important that we play to the strengths and capacities of individual Members. It may be necessary to set party membership considerations aside and consider individuals’ qualifications to participate. We all must keep in mind that our efforts in this area are for the benefit of the people.

I welcome the proposed modular approach and the timeframe that has been set down. All too often we have seen inquiries that dragged on for so long that their original purpose was eventually forgotten. However, while being mindful of the requirement to keep the inquiry tight and focused, we must also remember that we have a responsibility on behalf of the citizens of the State to find out as much information as we can. Senators Sean D. Barrett and Katherine Zappone who were singled out by several speakers for their economic backgrounds would certainly offer an expertise in these matters. I have no doubt, however, that other Senators and Deputies from various professional backgrounds also have qualities and capacities which would make them suitable for inclusion in the inquiry.

Order of Business, 24 September 2013

Tuesday, 24th September 2013

Last Thursday, in the light of the introduction of a ban by the French Senate, I expressed my opposition to the child beauty pageant due to take place in Dublin. I am delighted to say the hotel where it was planned to be held cancelled the booking and that no other hotel in Ireland would take the event. Eventually, it was a rushed event in a bar in County Monaghan. I thank all of the parents who got behind my call and the hotels that stood firm, for which I thank them, as I realise they are commercial ventures. I also thank the social media which showed their positive use in getting behind the call, as well as my colleagues who supported the call. I have been inundated by messages from across Ireland and it seems to have hit a touchstone with the people. The organisers of the child beauty pageants have said they will be back next year and organise events regionally. This is about the early sexualisation of children, to which I am very much opposed. I have taken the initiative to contact the French Senate to ask for details of its ban and how it put it in place. I ask the Leader and my colleagues in the House to join me in opposing this initiative. This is above party politics and we can work together on the issue. I will shortly bring forward an initiative, but I hope it will be a joint initiative on behalf of Members of the House.

Special Olympics Ireland: Motion

Wednesday, 17th July 2013

I welcome the Minister of State, Deputy Kathleen Lynch. I also welcome the publication of the Assisted Decision-Making (Capacity) Bill because it is historic in more ways than one, but I know we will discuss it on another day.

I wholeheartedly support the motion put forward by Senator Mary Moran and her colleagues in the Labour Party. Special Olympics Ireland is a tremendous organisation and I welcome people from the organisation who are in the Visitors Gallery. I read its mission, which I am surprised nobody mentioned yet. It states: “The mission of Special Olympics is to provide year-round sports training and athletic competition in a variety of Olympic-type sports for children and adults with intellectual disabilities, giving them continuing opportunities to develop physical fitness, demonstrate courage, experience joy and participate in a sharing of gifts, skills and friendship with their families, other Special Olympics athletes and the community.” That is wonderful. We often read the lofty missions of organisations but Special Olympics Ireland lives that mission in its work every day and it achieves exactly what it says.
There are 26,449 people with an intellectual disability in Ireland. Just shy of 9,000 are registered athletes with Special Olympics Ireland, which clearly demonstrates its reach and the huge range of activities. I read about Alpine skiing, gymnastics and football, which put any of my sporting attempts to shame. I thought I did well at hockey in school but I may have to revise my assessment, especially given athletes like James and Cillian who achieve so much, and that is multiplied throughout Ireland.
June 2003 was mentioned. I am so proud, as an Irish citizen, that we hosted what were the most successful games in Special Olympics history which reached into every community in Ireland. One only needs to mention it and it put smiles on all our faces.

I also take the opportunity to mention another organisation which shares many similarities with Special Olympics Ireland in its pursuit to enhance the quality of life for people with intellectual disabilities. The organisation is called HeadsARTS. It is a very young organisation and its mission is to empower and enable people with intellectual disabilities through the arts. I also welcome people from that organisation who are in the Visitors Gallery. I have been privileged to see its work as a start-up social entrepreneurial organisation. It wants to become Ireland’s leading service provider of arts for people with intellectual disabilities and wants to create a trustworthy and creative environment which encourages and enables its members. It has very much learned from and is borne out of experiences with Special Olympics Ireland. It is asking if there are other options it can offer young people and adults with intellectual disabilities who may not necessarily be sports-minded.

Where are the opportunities with which we can provide them? Both organisations rely very much on volunteers, carers and parents. People with intellectual disabilities are entitled to the same opportunities as all of us in society. They should have an equal opportunity to engage in the arts as well as sports, both of which are proven to enrich our lives. I want to commend the vision of HeadstARTS. It involves three young students in DCU who could choose to do other things. If one believed everything one read in the newspapers, one would think that students were doing other things. Instead, these students have given up their time to set up an organisation. They are funded through UStart, DCU, and many others are trying to support them. It is great to see students and young people showing this initiative.

I note the Sinn Féin amendment, but this is a positive day. I want to keep it positive. We must question, however, the type of society we wish to have. That society must include organisations like Special Olympics Ireland and HeadstARTS. Their values should be our values. The State must support these organisations. Senator Moran has set out the financial case for Special Olympics Ireland. I have no doubt that HeadstARTS also has needs. Support for them would demonstrate our values as a society. While I join with Senator Moran and her Labour Party colleagues and say “Well done” to Special Olympics Ireland, we will also have to put our hands in our pockets, not just applaud them.

Courts and Civil Law (Miscellaneous Provisions) Bill 2013: Report and Final Stages

Tuesday, 2nd July 2013

Part 1:

I welcome the Minister back to the House on Report Stage of what has become a very comprehensive Bill. Last Wednesday on Committee Stage, I outlined in great detail the rationale and urgency behind my amendment, and I do not propose to do so again today because we are all here. I have conducted extensive legislative analysis on my proposal, which I believe strikes the appropriate balance between the right of the accused to procedural fairness and the right of the child witness to privacy and personal dignity. Without ready access to legislative drafters, it is difficult to translate a legitimate and necessary reform such as this into a legislative proposal, and I thank the Minister for his critique of my amendment on Committee Stage. It has given me this opportunity, albeit with an extremely short turnaround time, to revert with a more robust amendment that I urge him to accept today.

The Minister’s primary concern on core procedure is very valid. I have altered the wording to allow the matter to be considered pre-trial. I have also added a reference to the rule of court to allow for further regulation of the application process by way of an amendment to the rules of court, should the Minister or the court rules committee find it necessary to do so. For example, the rules could set out a prescribed form for such applications, time limits and so on.

I noted the Minister’s concerns in respect of the qualifications of a counsellor and clarity as to whom communication should be regarded as confidential. It is unwise to specify any particular credential for counsellors. This is partly due to the wide range of training and education approaches in the area. More important is the avoidance of a situation where communication made by a child in confidence is disclosed simply because the counsellor did not pass all the exams, or passed the wrong kind of exams. The regulation of the counselling profession is an important question, but there is a danger of allowing a preoccupation with credentials to distract from the purpose of this amendment. However, to address the Minister’s concern, I have added the following short provision which allows the Minister to refine, by way of statutory instrument, the definition of “counselling” and “counsellor”, while allowing the amendment to proceed.
The amendment I have proposed states that the Minister “may by order set out detailed criteria regarding the conduct of sexual assault counselling, and the training or qualifications of those who provide sexual assault counselling for the purposes of this Act.” I also noted the points the Minister made about the word “encouragement”. While I believe it is a remote concern, I have removed the word from the section.

I thank the Minister for his letter following the Committee Stage debate and I would like to address some of the points he raised therein. He said that any proposal should address the rights of an adult as well as child complainants, and that immediate action is required, and as such he has decided to deal with the issue in the forthcoming sexual offences Bill. In my Committee Stage intervention, I stressed the urgent to address the issue of third party disclosure of confidential records for adults complainants. I know that there is a considerable amount of work being done by interested members, including myself and Senator Bacik, and by advocacy groups, and I welcome the Minister’s commitment to act. However, I do not see any justification for not proceeding with a legislative solution for children immediately in this Bill, as opposed to the sexual offences Bill, for which the heads have not yet been approved by the Government. In February 2012 I brought forward a motion on child abuse material, and at that point I was promised it would be in the sexual offences Bill that would be published shortly. I hope the Minister can understand that this is a very real and pertinent issue that is being dealt with at the moment. Every child has the right to protection from harm, abuse and exploitation, including from criminal justice arrangements.

As an aside, I must raise the experience of child victims of sexual abuse and the criminal justice system about repeated interviewing by separate agencies, most commonly in the context of parallel Garda investigations alongside a child protection investigation. The attendant risk of further trauma and upset for a child in this context can be avoided by joint interviewing, which is done in other countries. From a legal perspective, limiting the number of times a child is interviewed will reduce the potential for the type of contamination of a child’s recollections of events which can lead to the failure to secure a conviction.

We need effective co-ordination and training of gardaí and social workers interviewing child victims of sexual abuse. I note the arrangements in place for this in our neighbouring jurisdictions, such as the UK, in achieving best evidence, video interviews and the detailed, recommended practice for interviewing child witnesses in the latest edition of “Achieving best evidence in criminal proceedings, Guidance on interviewing victims and witnesses, Guidance on using special measures” and “Guidance on joint interviewing of child witnesses in Scotland in 2011.”

I have already pointed out that there has been a notable increase in requests from the DPP’s office seeking access to therapists’ notes of children’s private and confidential therapy sessions over the last six to 12 months. That is a very real issue right now. As an independent office, I appreciate that the Minister cannot directly instruct the Office of the Director of Public Prosecutions to revise its practice in this area. There is no time to waste in introducing legislative guidelines. I also appreciate the need for a solution that is workable from both a prosecution and defence perspective, but the arrangements proposed do not affect in any way the disclosure of material evidence or evidence relevant to a criminal trial. The issue has been raised on a number of occasions, most recently in 2010 by Dr. Geoffrey Shannon, who is the Government appointed special rapporteur on child protection. He stressed the urgent need for legislation then. That was three years ago and no legislation has come forward.

I do not have the legislative drafters that the Minister has at his disposal and the advice that he receives. I do not need it for this amendment today in the Seanad, but it is not good enough that this will be promised in a Bill in the near future. This is about children at the moment whose records are being handed over. Parents have told me they are not sending their child to counselling because of this situation. We have an obligation to do something. I appreciate the Minister understands this issue as much as I do; probably more so from dealing with cases. I have put this amendment forward in good faith and I have tried to get the balancing right. I am willing to go back and work on this. If it has to be brought through in the Dáil, I have no difficulty with that. It is not about my name, but about the children in these cases. We have seen the increase in the DPP requests in the last six to 12 months. This issue is escalating rather than going away.

Part 2:

I thank the Minister. On the last point, the Cabinet Secretary on Justice at the Scottish Parliament has issued guidance notes on joint investigative interviewing of child witnesses. That could perhaps be done quite easily in co-operation.

With regard to the substantive amendment, perhaps in the consultations the Minister might, in addition to consulting the DPP, consult the NGOs and the victims’ units that deal with the cases at the moment, and discuss their relationship with the DPP. They are very conflicted over the role they play in counselling and how to ensure that people are brought to trial for the offences they have committed. They face an impossible dilemma. We need urgently to find a way to deal with it.

I am very happy to share the work I have done so far with officials to see if we can progress this issue. I take the Minister’s word on the sexual offences Bill. The only caveat I will enter is that if another miscellaneous provisions Bill comes along in the meantime I will back here and the Minister will remember that I said I would come back here.

If another miscellaneous provisions Bill comes along in the meantime, I will be back here and the Minister will remember that I said I would come back because we all know that we have good intentions to bring things forward. I know that the sexual offences Bill will be comprehensive and I would prefer it to be dealt with in a comprehensive manner, but for adults, there is a pressing urgency. Specifically for me, however, this involves the vulnerability of children and child witnesses; therefore, there is urgency with regard to child witnesses specifically.

Part 3:

Last but not least, I echo the thanks of the House to the Minister and his officials. The changes in family law and court proceedings are very important. I acknowledge not only the Minister’s engagement with us but also with NGOs. Perhaps in looking back later people might see that not only has he engaged in the House on his reforming agenda but he also has been willing to listen to views from all sides. I thank him for this engagement. I hope one day to succeed with an amendment I tabled. Therefore, I have set a challenge for myself. When the Minister comes to the House, it is very encouraging and worth the effort we put in as Senators knowing that he will engage robustly but also appropriately, as we should on all legislation. I thank him for this.

Courts Bill 2013: Committee Stage

Wednesday, 26th June 2013

Part 1 of 2:

I tabled this amendment in the utmost good faith and I thank my colleagues in the Independent Group for their support for the amendment.

The issue of court ordered disclosure of complainants confidential records, be they medical, psychiatric or therapeutic and be the complainant an adult or a child, in the absence of any legislative guidelines is one of considerable and pressing concern. I have no intention of undermining the urgency and necessity relating to adult complainants but I see this Bill as an opportunity to introduce legislative provision and clear practice for the disclosure of sexual assault counselling communications regarding children who are witnesses in criminal trials.

I note the work in this regard and the calls to action by many children’s and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children who have been sexually abused. I am grateful, in particular, for the support and advice I have received from Rape Crisis Centre Ireland and Children at Risk Ireland in the context of assisting me in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution proposed in the amendment.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in child sexual abuse cases, the right of the child witness to privacy as well as his or her right not to be revictimised or unduly traumatised by the criminal justice system and the public interest. It is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interest of the child to provide in law that the disclosure of sexual assault counselling communications will only be granted by the trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.

I wish to provide an overview of the current law in Ireland, the jurisprudence of the European Court of Human Rights and arrangements in other common law jurisdictions. Such an overview is relevant to the arguments I am making in support of the amendment. However, I do not propose to document each area exhaustively because I am confident that the Minister, as a legal expert, is au fait with them and as a result of the fact that they have ably synopsised by the Government special rapporteur on child protection, Dr. Geoffrey Shannon, in a number of his annual reports and, most recently, his fourth such report which was published in 2010. It was via the latter that I first became aware of this issue. The report to which I refer contains Dr. Shannon’s finding that there was an urgent need for legislation governing the issue of disclosure of private records, such as medical records, and counselling notes.

The right of the accused to justice and procedural fairness is the cornerstone of the Irish criminal justice system and is principally guaranteed under Articles 43.1 and 43.2 of the Constitution. The European Convention on Human Rights provides further guidance via Article 6, which protects the right of the accused to the presumption of innocence and the right to a fair trial, and Article 8, which provides a right to respect for one’s private and family life and home and correspondence, subject to certain restrictions that are in accordance with law and necessary in a democratic society. The most relevant restriction in this context relates to the protection of the rights and freedoms of others. The issues at stake here clearly require the balance of what, in this context, are competing interests. There is a substantial body of jurisprudence from the European Court of Human Rights in Strasbourg which finds that a complainant’s Article 8 interests can be accommodated alongside the Article 6 rights of the accused.

The decisions from Strasbourg demonstrate that while the right to a fair trial is absolute, none of its contingent parts, of which disclosure is one, is itself absolute. A fine example of this can be found in the Doorson v. The Netherlands decision of 1996, in which the courts held that Article 8 interests:

…are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.

The court was confirming that while Article 6 is important, the concept of fairness that it embodies has many possible configurations.

The practice regarding disclosure orders for third parties has been considered in the past 15 years by many of our fellow common law jurisdictions. The disclosure process settled upon in these jurisdictions range from being governed by judicial rulings, as in Northern Ireland, to legislation, as in Australia, Canada and Scotland, to a combination of both, as in England and Wales. I have examined all of these. They vary in their application from being manifestly weighted in the interests of the right of the accused to a fair trial, as in Scotland, to a comprehensive codified system for the use and disclosure of confidential records in sexual offence cases, as in Canada, to models requiring judicial scrutiny on a case-by-case basis, as in Australia. Whatever the approach adopted, what is most important is that each jurisdiction has seen fit to debate the balance of rights and public interest considerations and to apply standards governing disclosure, non-disclosure and objection to disclosure.

In Ireland there is no legislative provision governing disclosure nor have these important issues been subjected to sustained analysis or consideration by the Irish superior courts. The matter is crucial with respect to child witnesses who have been the victims of sexual abuse. They are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. My understanding is that under current practice, therapists in recent years, especially in the past six to 12 months, have been receiving increasing numbers of requests from the Office of the Director of Public Prosecutions seeking access to the notes of children’s private and confidential therapy sessions.

I have several serious concerns. One is re-victimisation, creating a sense of powerlessness, stigma and betrayal at having innermost thoughts and feelings examined by a third party and, potentially, the alleged abuser. Another is the perception of a breach of trust, a betrayal by the therapist following the therapy process which could undermine the healing potential of therapy. This could also create a conflict between seeking counselling and reporting or proceeding with a prosecution. One could argue that the disincentive effect of disclosure of personal records would be such a powerful disincentive to report sexual offences – this relates to the public interest in the pursuit of justice area – and seek counselling – this relates to the public interest in restoring the child’s well-being and ability to function in society area – that it seriously prejudices the public interest.

There is a strongly held view by many practitioners in specialised assessment and therapy services for children who have been sexually abused, that therapy notes should be privileged outright on the basis that they hold neither material evidence nor information relevant to the proceedings. When we reflect on the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements these services have in place to manage the process, the rationale for such privilege is strong. Therapy, as a whole, is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is a particular type of human engagement whereby the exploration of the thoughts and feelings of the child at a particular point is facilitated. Therapy notes, in turn, are context specific. They derive from therapeutic encounters and, as such, are concerned with documenting feelings, thoughts, hopes, fears and dreams rather than actual facts or material evidence. Ultimately, the aim of therapy is to assist a child to get back to a life that is not dominated by the sexual abuse experience and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour and responses that have become unhelpful, burdensome or troubling to the child’s living experience.

Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of session. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children, in which the children can try out different roles to make sense of the abuse they experienced. However helpful to the children, therapists are becoming increasingly concerned about how notes describing such scenes might be interpreted in a legal arena and taken out of context. Trust in the therapeutic relationship and the creation of the a safe space is paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved where privacy and confidentiality of these therapy sessions are not sacrosanct.

I suggest that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. I could offer several harrowing examples of the devastating effects the current practice is having on child victims of sexual abuse and their families, including the conflict that ensues between either seeking justice or striving for the healing and well-being of the child. However, to speak about these cases on the record would be inappropriate. There is one case I can refer to, however, which was given to me at the request of the subject. It is a case I find deeply disturbing. The case highlights the reaction of one teenager, currently engaged in sexual abuse counselling, at the thought of their therapy notes being disclosed to a third party. The person said if they had known starting the counselling process that their therapy notes might be disclosed, they would never have started the process. Having already started, but now knowing it is a possibility, they are afraid to explore certain thoughts and feelings, thus undermining the therapeutic value. Most upsetting, they said that the idea of their trauma being scrutinised by others was tantamount to their insides being poked at again. This is a classic example of the re-victimisation I referred to earlier. There is a sense of powerlessness instilled by the criminal justice system in the absence of disclosure guidelines and this must be addressed.

I note the language of the European Commission in respect of the EU directive establishing minimum standards on rights, supports and protection of victims of crime, which was adopted in October 2012. The Commission stated that one of the greatest tests of the quality of our justice system is how well we treat our victims and that appropriate treatment is a demonstration of the solidarity of our society for each individual victim and a recognition that such treatment is essential for the moral integrity of society. It is crucial, therefore, not only to combat and prevent crime but also to properly support and protect individuals who fall victim to crime.

It is important to this debate to understand the management systems that specialised assessment and therapy services employ and their relevance to disclosure. The first phase, which is distinct from therapy, is the compilation of an assessment report whereby the practitioner will take account of the abuse alleged by the child. This is the baseline account of what the child says has happened. It is passed on to social workers and the Garda, where appropriate. It is available to the DPP and, in the context of a criminal trial, is not difficult to see how its content is regarded as relevant information. However, then the process moves on into the next phase, away from the who, what, where and when. Instead, the focus is on therapeutic issues that arise for children in their recovery. If any information arises in the course of the therapy phase that substantively alters the picture in the assessment report, the practitioner will update the assessment report accordingly and pass it on to the relevant social worker and so on. In essence, any information or evidence relevant to a criminal trial for child sexual abuse is already disclosed as a matter of course. The information left contained in the counselling records and therapeutic notes have no material relevance but it represents the heart and soul of a damaged child. As the Minister noted earlier, the Bill is about addressing issues that have been long ignored. I put it to the Minister that we must bolster our protection of these child witnesses and I offer the amendment to the Minister in this regard as a legislative response.

Part 2 of 2:

I thank the Minister. I will not press this amendment. The Minister robustly engages in exchanges on the amendments tabled by Members. I know that, like me, the Minister understands the importance of this amendment. Having listened to his response, I know he appreciates the timeliness if we can find an appropriate and balanced wording. As I said, many practitioners wanted me to look for absolute privilege, which is probably what my heart would like to seek, but I realise we must achieve a balance which is what I strove to do. I take on board what the Minister has said. I looked at legislation for ways we previously defined counselling advice, so I am very happy to share that information with him.

In 2010, Dr. Geoffrey Shannon identified in his fourth annual report the urgent need for legislation governing the issue of disclosure of private records, such as medical records and counselling notes. It is now 2013. I would be very hesitant to go any other route, even though I have utmost trust and faith in the Law Reform Commission. The issue of adults must be looked at but for me there is a real and pressing concern in regard to children. I will engage in the process outlined by the Minister.