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.

Reform
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.

Constituency
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.

Shelter
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.

END

Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages

I move amendment No. 2:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material“.

These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Committee and Second Stage, I do not intend to be repetitive today. I appreciate that the amendments as drafted technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase “child pornography” is abhorrent, and we need to be using it for the term that it is. The word “pornography” in some way implies that there is some consent. In the English dictionary in the mid-nineteenth century, the word was associated with terms such as “taboo” and “secretive,” but it has now become common parlance. For me, the words “child” and “pornography” should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.

Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the UK, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the UK for both child prostitution and child pornography is “sexual exploitation of a child.” I want us to name this material for what it is. What I am seeking from the Minister today is a commitment that her Department will seek to rectify this balance.

As I said, I do not propose to reiterate the arguments I put forward on Committee and Second Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the UK and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the UK and hope we could have something similar here. The purpose of these amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term “child pornography,” because it in some way diminishes the act. I ask that the Minister consider my proposals.

I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
“(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.

(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.

(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) ‘relevant record relating to a child’ means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.

(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;

(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and

(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.

I wish to raise an issue on third-party disclosures and I want to be clear from the outset that I welcome section 34. In June 2013, I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At that time, I expressed my deep concern regarding the issue of the court ordered disclosure of complainants’ confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and I support the approach taken to provide standards and guidance to the courts in determining whether to grant an order for the disclosure of a record in dispute.

I agree that an adequate balance has been struck between an adult complainant’s right to privacy and the right of the accused person to procedural fairness. However, upon further reflection in this regard, I have tabled an additional amendment – amendment No. 40 – which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children’s private and confidential counselling sessions, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account – the who, what, where and when – of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.

The second phase is the therapy. The therapy notes are concerned with documenting the child’s feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child’s thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.

Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child’s living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.

Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue 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. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a 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.As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance that needs to be there in law. I hope the Minister would look favourably on these amendments.

Full debate https://www.kildarestreet.com/sendebates/?id=2016-01-21a.178&s=jillian+van+turnhout#g190

Press Statement: Children First Bill: Calls time on physical punishment of children

Press Statement 11 November 2015

Children First Bill: Calls time on physical punishment of children

***FOR IMMEDIATE RELEASE***

Today, Wednesday 11 November 2015, An Taoiseach Enda Kenny and the Minister for Children and Youth Affairs, Dr James Reilly TD, heralded the final stages of the Children First Bill through the Dáil, thus concluding its passage through the Oireachtas. Independent Senator and children’s rights advocate, Jillian van Turnhout warmly welcomes the completion of the Children First Bill, which effectively calls time on the physical punishment of children.

She said “there must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland. The Children First Act will put child welfare and protection on a statutory footing.  It will solidify good intentions. As part of this legislation I brought forward an amendment to abolish the archaic common law defence of “reasonable chastisement” and finally vanquish it to the realms of history.”

“The defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world.  In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to other countries across the globe, including our nearest neighbours, to protect children from violence.”

“Why as a society do we accept that we even have to debate whether it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit?”
“I fully agree with Minister Reilly that the abolition of the defence of reasonable chastisement is a tangible and practical manifestation of children’s rights and I am very proud of the role I have played in securing it.”

-ENDS-

Notes for the Editor:
Children First Bill, Report Stage, 21 October 2015:jillianvanturnhout.ie/childrenfirstreportstage
Children First Bill, Committee Stage, 23 September 2015:  jillianvanturnhout.ie/children-first-bill-corporal-punishment

For More Information, Please Contact:
Senator Jillian van Turnhout,
Leader of the Independent Group (Taoiseach’s Nominees)
Phone: 01 6183375
Mobile: 0872333784
e-mail: jillian.vanturnhout@oireachtas.ie

 

Press Statement: Senator van Turnhout welcomes abolition of defence of reasonable chastisement

Press Statement 21 October 2015
Senator van Turnhout welcomes abolition of defence of reasonable chastisement

***FOR IMMEDIATE RELEASE***

The archaic common law defence “reasonable chastisement” of children finally vanquished to the realms of history

“Whether it is slapping or tapping, shoving or pushing, hitting or beating, the invisible line between “reasonable chastisement” and simply physical violence against children has finally been removed.”

“I was appointed to the Seanad by An Taoiseach Enda Kenny back in 2011 on the basis of my children’s rights work. One of the first objectives I set for my tenure was for Ireland to repeal the defence of reasonable chastisement. On 23 September 2015, I tabled an amendment to the Children First Bill to this effect. Following an anxious wait until today, an historic day for children’s rights in Ireland and for me personally, through a joint amendment with Government we have successfully amended the Children First Bill to secure the abolition of the defence of reasonable chastisement.”

“There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.”

-ENDS-

Notes for the Editor:

Children First Bill, Report Stage, 21 October 2015: jillianvanturnhout.ie/childrenfirstreportstage

Children First Bill, Committee Stage, 23 September 2015:  jillianvanturnhout.ie/children-first-bill-corporal-punishment

For More Information, Please Contact:                                                                

Senator Jillian van Turnhout,                                                                                                 Leader of the Independent Group (Taoiseach’s Nominees)                                                   Phone: 01 6183375                                                                                                                   e-mail: jillian.vanturnhout@oireachtas.ie

 

Children First Bill, Report Stage: Corporal Punishment

Children First Report Stage with Minister for Children and Youth Affairs, James Reilly TD, Wednesday 21 October 2015

Speech by Senator Jillian van Turnhout
Video of speech: youtu.be/BxrkLOl16jA
Video of full debate: youtube.com/watch?v=VqixbeSPUEw

Minister, you are always welcome to the Seanad but I have to admit that today you are particularly welcome.

One of the first objectives I set when I became a member of the Seanad in 2011 was for Ireland to repeal the defence of reasonable chastisement. When the Seanad took Committee Stage of the Children First Bill on 23 September I tabled an amendment, with thanks to the expert help of Dr Fergus Ryan, to the same purpose as the amendment before us today.   You said “If I have my way we will have this defence of “reasonable chastisement” removed from the Statute Book.”

And here we are today. Minister, I am extremely aware and thankful for all the work done by you personally, by officials and advisors across Government cooperating and working together to bring about the amendment tabled here before us. I would like to extend my particular thanks to the officials of the Department of Children and Youth Affairs. I would also like to thank my Assistant and Researcher Amy McArdle, for all her work and support. I was also heartened at Committee Stage to receive cross party and independents’ support. Thank you.

On 23 September I cited a number of international and national experts and I don’t intend to repeat myself today but ask that my words at Committee Stage be included in any documenting of how Ireland brought about the abolition of the defence of reasonable chastisement. Over the years there have been notable voices to the fore calling for the Ireland to take this step.

Of special note I must thank:

  • the Children’s Rights Alliance, in particular Tanya Ward and Maria Corbett who have been steadfast in their support and in ensuring the support of a wide range of children and youth organisations;
  • the ISPCC, driven by the experience of children calling into their ChildLine service, have always prioritised ending a culture of violence against children in Ireland.
  • the Special Rapporteur on Child Protection, Professor Geoffrey Shannon who has, through his reports, repeatedly called on us as legislators to repeal the defence of reasonable chastisement.

For the global leadership they have provided at an International level I want to thank :

  • Marta Santos Pais, Special Representative of the Secretary General on Violence against Children;
  • Peter Newell of the Global Initiative to End All Corporal Punishment of Children;
  • and Ireland’s academics who have shone a light on Ireland’s international obligations, in particular Prof Ursula Kilkelly, UCC.

I also must thank Jenny and Michael Hassett, my Mum and Dad. Since 23 September I have had a lot of time to reflect and probe why I am so passionate about this issue. It is of course rooted in my own childhood. My memories brought me back to a particular primary school teacher who would on occasion whack someone in our class across the ears with a ruler. I remember telling my Mum and she said that if I was ever hit I was to stand up calmly, walk out of the class, go to the office of the school secretary and ask for my parents to be called to come and collect me. I was lucky. My parents were ‘ahead of their time’, they respected me as an independent rights holder. Thanks Mum for being here today to share this momentous occasion.

Why do we as a society accept that we even debate if and when it is okay to hit someone? Let alone when that someone is smaller than us and probably doesn’t understand why they are being hit? Very often when we discuss the issue of corporal punishment, violence against children or so called ‘slapping’ you can almost feel an invisible line appear in people’s heads about their tolerance level. They say, “you know I am only talking about a tap not a thump, a slap not a belt, a smack not a whack”. And of course this issue is wrapped up in how we were raised – all too often the knee-jerk reaction “it never did me any harm” is heard. I would add “it never did you any good either”!

This invisible line is extremely subjective and it leaves children vulnerable. When someone hits a child it is not from a rational place. The decision is made in a heightened emotional state, when we are stressed, when we are tired and let’s face it least able to engage sound and reasoned judgement.   The invisible line gets blurred. In extreme cases it gets rubbed out completely.One way or the other, the existence of the invisible line means children are all too often exposed to an escalation of violence.

The excuse “I got a terrible fright when she ran out on the road and so I just hit her to show how wrong it is” is used in relation to children. We all get frights in our life but my first reaction is not to hit someone – so why do we culturally accept that it is okay when it is a child? A caller to the Last Word on TodayFM summed it up by saying “my Grandmother has Alzheimer’s and she is as likely to walk out into traffic or harm herself. Should I use that as a reason to slap her?”

Of course I understand the importance of supporting parents in the vital role they play in their child’s life.   We need to ensure parents have access to supports and resources when they need them. We know that the majority of parents in Ireland already believe that we have a ban on corporal punishment. However, I know that some parents are anxious about this change in the law and I would like to reassure them that we all want the best for their children, for the children of Ireland. To this end, I would like to take this moment to thank Laura Haugh of Mummy pages for their unequivocal support of this amendment.

I would also like to point to an excellent book for any parents who are anxious, developed by a leading advocate in this area, Paul Gilligan. His book “Raising Emotionally Healthy Children” is a great resource that provides lots of advice and support.

By abolishing the defence of reasonable chastisement we are giving life to the Children’s Amendment in our Constitution, Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. We know that corporal punishment:

  1. Can cause serious harm to children;
  2. Teaches children that violence is an acceptable way of solving conflicts;
  3. Is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;
  4. Makes it more difficult to protect children from severe abuse if some forms of violence are legitimate.

With this amendment today we are ensuring that all citizens are equal in the eyes of the law.

This ancient defence of “reasonable chastisement” is not an Irish invention; it came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland the “reasonable punishment” defence still allows parents and some other carers to justify common assault on children; in Scotland there is another variation – the defence of “justifiable assault”.

In this action being taken today, the Government is putting children first and providing leadership that will hopefully give confidence to the Government at Westminster, the devolved UK administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to children’s dignity.

We will be the 20th EU Member State to effectively ban corporal punishment in our jurisdiction and in doing so I hope the remaining European Governments will follow. Irish law is being brought into step with parents, children’s rights advocates and international best practice.  With this amendment we have a way to unite and agree that all citizens are equal.

There must never be a defence for violence against children. I am honoured to have championed and secured the effective ban on the physical punishment of children in Ireland.

 

Amendment

In page 5, line 12, to delete “and to provide for related matters.” and substitute the following:

“to provide for the abolition of the common law defence of reasonable chastisement and, for that purpose, to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.”.

—Government & Senator Jillian van Turnhout.

In page 20, after line 21, to insert the following:

“PART 5

MISCELLANEOUS

Abolition of defence of reasonable chastisement

The Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following section after section 24:

“24A. (1) The common law defence of reasonable chastisement is abolished.

(2) Subsection (1) shall not apply in respect of proceedings brought against a person for an offence consisting in whole or in part of any act done by the person before the commencement of section 28 of the Children First Act 2015, whether those proceedings were brought before, on or after such commencement.

(3) This section shall not affect the operation of section 24.”.”.

—Government & Senator Jillian van Turnhout.

Children First Bill, Committee Stage: Corporal Punishment of Children

Children First Committee Stage with the Minister for Children and Youth Affairs, James Reilly TD, Wednesday 23 Sept 2015

Video of my speech: youtube.com/watch?v=fbYCdc1F2hE

Proposed Amendment to ban the corporal punishment of children.

“28. The Non-Fatal Offences Against the Person Act 1997 is amended by the substitution for section 24 of the following – 

“Abolition of common law rules in respect of immunity from criminal liability for punishing a child.

  1. Any rule of law under which any person is immune from criminal liability in respect of physical chastisement of a child, whether the person is a parent or guardian of the child, a person with custody of the child either temporarily or indefinitely, a teacher, or a person in loco parentis in respect of the child either temporarily or indefinitely, is hereby abolished.””

I would like to begin by acknowledging and thanking Peter Newell of Global Initiative to End All Corporal Punishment of Children, which promotes the universal prohibition and elimination of corporal punishment.

In November 2012, the people of Ireland voted to enshrine the protection of children as individual rights holders into the Irish Constitution.  Following a defeated Supreme Court appeal, it was signed into law on 28 April 2015.  Article 42A.1 states: The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

What I am proposing in this amendment is to ensure that all citizens are equal in the eyes of the law.

Why do we still believe it is acceptable for corporal punishment to be in our laws?

What is corporal punishment? The Committee on the Rights of the Child defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading.

Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation, such as spanking or smacking. The truth is that, for a child, all of this is violence, and if it were directed at an adult it would constitute criminal assault.

Minister, I am very conscious that often people believe this issue is a judgement on how they were raised.  I would like to take this opportunity to welcome my mother Jenny to the gallery and she will concur that I was raised with the “you’re not too old for the wooden spoon” ringing in my ears.  Thankfully she never used it – indeed only in Ireland is the wooden spoon not seen solely as a kitchen utensil but as a weapon.   Times have moved on and our understanding of the effects of corporal punishment on children has increased.

There are many other good reasons to ban corporal punishment:

  1. It can cause serious harm to children;
  2. It teaches children that violence is an acceptable way of solving conflicts;
  3. It is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health;
  4. It is more difficult to protect children from severe abuse if some forms of violence are legitimate.

In tandem Minister, we must provide parents with sufficient support in bringing up their children, including through educating parents about good parenting skills.

Minister, 46 states, including 28 in the wider Europe, have prohibited all corporal punishment including in the family and another 51 states have clearly and publicly committed to achieve a full ban.

Ireland has been found to be in violation of the European Social Charter (by the Council of Europe’s European Committee of Social Rights) by failing to ban all corporal punishment against children. However, I hope the Government will find itself in a position to accept this amendment because it is the right thing to do.  We must uphold and protect Children’s Rights.

Mr. Janusz Korczak, a Polish-Jewish paediatrician, educationalist and children’s author, wrote in his 1925 book The Child’s Right to Respect: “In what extraordinary circumstances would one dare to push, hit or tug an adult? And yet it is considered so routine and harmless to give a child a tap or stinging smack or to grab it by the arm. The feeling of powerlessness creates respect for power. Not only adults but anyone who is older and stronger can cruelly demonstrate their displeasure, back up their words with force, demand obedience and abuse the child without being punished. We set an example that fosters contempt for the weak. This is bad parenting and sets a bad precedent.”

Sweden brought in their laws in 1979 – now 36 years ago. In a publication to mark the 30 years since Sweden’s abolition of corporal punishment their then Minister Maria Larsson wrote: “When violence is used against children, their confidence in the adult world is damaged. And there is good reason to believe that if this violence is exercised by the child’s own parent, or by someone else close to them, the damage is greater.”

Since 2006, the EU has emphasised the promotion and protection of children’s rights as a priority issue. The European Parliament, in a 2009 resolution on the situation of fundamental rights across the EU 2004-2008, called for a total ban on corporal punishment in all Member States. Again in November 2014, the Parliament adopted a resolution calling on Member States to uphold their obligations and combat any form of violence against children  “including by formally prohibiting and sanctioning corporal punishment against children”.

Recently, our Permanent Representative to the United Nations in New York, David Donoghue, said that Ireland had a central role in achieving sustainable development as co-facilitators of the UN negotiations together with Kenya on “Transforming our world: the 2030 Agenda for Sustainable Development”.

I note SDG 16 to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels and particularly SDG 16.2 therein to end abuse, exploitation, trafficking and all forms of violence against and torture of children.

Minister, colleagues, children’s rights experts and advocates in Ireland concur.

Tanya Ward, Chief Executive, Children’s Rights Alliance:

“The Children’s Rights Alliance unites over a 100 organisation working with children and their families across the country. Since our establishment in 1995 we have repeatedly called for the removal from Irish law of the defence of reasonable chastisement of children.

Research is clear that corporal punishment has no benefits and carries causes children physical and psychological harm and can lead to short and long-term effects on their safety, health and development. There is no justification for corporal punishment and it is clearly at odds with Article 42A of the Constitution which “recognises and affirms the […] rights of all children” and commits to protect and vindicate those rights by its laws. Children have an absolute right to be protected from harm and abuse under the UN Convention on the Rights of the Child which Ireland ratified in 1992, there are no exceptions.

This coming January, Ireland’s progress on children’s rights will be examined by the UN Committee on the Rights of the Child, the Committee has criticised Ireland’s position on corporal punishment in 1998 and 2006 and are likely to do so again in 2016. The Children’s Rights Alliance has been leading the civil society engagement with the UN Committee and has prioritised corporal punishment as a key concern. There is no reason to delay, Ireland has a moral and legal duty to protection children from corporal punishment.”

Grainia Long, Chief Executive, ISPCC:

“As the national child protection charity, the ISPCC has long supported a ban on physical punishment of children.  Through our national listening service, Childline, we hear on a daily basis the impact of violence towards children.  Last year we responded to nearly 37,000 contacts from children regarding abuse or welfare, and many were from children who were anxious, traumatised and scared in their own home, due to violence.

We strongly support the amendment to remove the defence of reasonable chastisement, and believes that it meets the spirit and intent of the Children First legislation.  Whatever the circumstance, there is no reason why the law should permit a defence of hurt or violence towards a child.  Far too often, the debate centres on the needs or preferences of parents, rather than the rights of the child.  The recent change to our constitution following the Children’s Referendum requires us to think very differently and put children at the heart of our considerations.  Seanad members therefore have a long overdue and timely opportunity to place in law the right of a child to be safe in their own home, and we hope this opportunity will be grasped, in the best interests of children.”

 Laura Haugh, mum-in-residence / spokesperson for MummyPages.ie :

“MummyPages.ie is Ireland’s largest online parenting community, and our members wholeheartedly support the campaign to repeal the defence of reasonable chastisement by parents and childminders (up to 3 children) in Irish law.

Slapping another person, and especially a vulnerable child is wrong in all circumstances. Firstly, allowing slapping by a caregiver to a child under the term ‘reasonable chastisement’, is legalising physical violence to another person and a form of child abuse. It demonstrates that it’s ok for a person to hit another person and indeed that it’s ok for a bigger or stronger person to hit a smaller or weaker person. This kind of behaviour can lead to intense abuse in the home for the child that does not learn quickly from the ‘reasonable chastisement’ and it is at complete odds with what is acceptable in today’s adult society or indeed the school playground.

Initially the child is hurt by the physical action and emotional breakdown of trust between parent and child that they forget what they have done wrong. What you want in effective discipline is for the child to understand what they have done wrong, and the consequences of their actions to others. You want the child to feel remorse but ultimately to still believe that they are a person of value, slapping does not promote this.

The main principle in promoting desirable behaviour is for the child to feel good and therefore be good. This is why regular positive affirmations of good behaviour is a much more effective tool to maintain this type of behaviour than anything else.

It is now well researched that when responding to an incident with a child that requires discipline; tuning into the child to understand exactly why they misbehaved, helping them to realise how their behaviour might affect others, and consistent follow-through with age appropriate consequences is much more effective than physical chastisement, no matter how ‘reasonable’ it is perceived.”

Minister, I am conscious of the comments made in February this year by Pope Francis.

For me it was encouraging to see the response by both the Vatican and indeed at national level.

I wish to cite from the letter written by Mary McAleese to the Irish Times, which noted that the Vatican was a signatory to the UN Convention on the Rights of the Child and that the relevant Treaty Monitoring Body, the Committee on the Rights of the Child, wants all corporal punishment of children to be banned.

She added “In submissions to that Committee last year, the Vatican said it did not promote corporal punishment, citing “respect for the inviolability of physical life and the integrity of the person…”.

The Vatican responded by appointing Peter Saunders, Founder of the National Association for People Abused in Childhood, UK, to the The Papal Commission for the protection of minors and was asked to lead on the Commission’s non-violence against children working group.

I contacted Peter Saunders earlier today and he advised me that the members of the working group are unanimous in their position that violence or reasonable chastisement of children is never justifiable.

Irish abuse survivor Marie Collins is also a member The Papal Commission for the protection of minors.   In discussions with both Marie Collins and Peter Saunders they are extremely supportive of Ireland updating its laws to bring into effect a ban on corporal punishment in Ireland.

Marta Santos Pais, Special Representative of the Secretary General on Violence against Children, advocates that corporal punishment can be prevented “[b]y supporting caregivers in the use of non-violent child rearing practices; by promoting advocacy and social mobilisation to safeguard children’s dignity and physical integrity; by reforming laws to introduce a clear ban of all forms of violence including corporal punishment, we can make a real difference in the life of children, all children, everywhere and at all times,”

Irish law is now out of step with parents, children’s rights advocates and international best practice.  With this amendment we have a way to unite and agree that all citizens are equal.

 

Civil Debt (Procedures) Bill 2015: Second Stage 17 July 2015

[CHECK AGAINST DELIVERY]

Welcome Minister.

While I appreciate the desire to have certain pieces of legislation passed through the Houses before the summer recess, it should never be at the expense of the democratic process.

You are aware Minister as are my Seanad colleagues that our agenda has gone from meagre at various stages over the last few months with (let’s be honest) thinly veiled time fillers…to the scenario we have now where there is insufficient time to scrutinise this Bill properly and fulfill our legislative duty.

I was unable to follow the Bill’s conclusion in the Dáil yesterday afternoon due to the Health and Children Committee session, legislative briefings and various meetings throughout the day.

There wasn’t even an updated version of the Bill reflecting the Report Stage amendments from the Dáil, when this speech was put together.

Only for a briefing late yesterday afternoon by your Department Officials, which was extremely helpful, I wouldn’t have known and been able to welcome the fact that the Bill has been amended to repeal the relevant provisions of the Enforcement of Court Orders Acts 1926-2009, which was preventing the Bill from truly abolishing the imprisonment mechanism for non-payment of civil debts.

As you know Minister I strongly support extending the recognised principle of detention as a last resort for children to adults and with urgency for the 18-24 year old cohort.

I accept imprisonment is unavoidable in certain circumstances, particularly in the case of violent offences but our rates of committal to prison under sentence and the increasing number of committals for less than three and six month periods, means that Ireland has one of the most punitive criminal justice systems in Europe.

I was interested to know what kind of numbers we were looking at in terms of imprisonment for non-payment of debt and according Irish Prison Service Annual Report, 23 debtors were subject to a period of custodial sanction in 2014.

This was compared to 8,979 committals for non-payment of court ordered fines, the vast majority of which were for periods of less than three months, but nonetheless at significant cost to the State.

Minister, when will the Fines (Payment and Recovery) Act 2014 be commenced? While not completely removing the possibility of imprisonment for non-payment, the Act provides much needed alternative such as the payment of fines by instalment, by attachment and recovery orders if appropriate, and by the substitution of community service orders for the fines.

It is now simply absurd that 5 years after the first Fines Act (2010) introduced a payment by instalment mechanism that the Court Service is still unable to progress the facility and there are nearly 9,000 committals a year as a result.

I have a number of concerns about the Bill before us, which echo many of the same concerns flagged by FLAC in their submission.

I had a chance to discuss some with your Department Officials at yesterday’s briefing.

Assessment of ability to pay issues:

 Why is there no statutorily enshrined guidance for the District Court in determining a debtor’s ability to pay their debt or the amount to be attached or deducted over a given period?

Minister, I put it to you that there will undoubtedly be unequal assessment depending on the court.  This already happens in relation to family law maintenance where orders can vary extensively depending on the court in question.   There is a need for guidelines. The guidelines exist.

Guidelines on reasonable standard of living, reasonable living expenses for debtors:

I suggest the Bill would be greatly strengthened by specific reference to the “reasonable living expenses” guidelines that the Insolvency Service of Ireland and the Official Assignee in Bankruptcy must consider in accordance with section 23 of the Personal Insolvency Act 2012 to ensure a debtor’s income doesn’t fall below an acceptable minimum standard.

The guidelines have their base in objective, academic work principally of Michéal Collins at Trinity College working with the Vincentian Partnership for Social Justice who in turn used a well-established model developed by the University of Loughborough in the UK and are used for debts big and small in the insolvency service including assessments for Debt Relief Notices where the maximum reference debt is €20,000 but can be much smaller.

If it’s good enough for insolvency and bankruptcy deliberations I don’t see why it isn’t good enough in the context of civil debt?

I cannot help but wonder if the reason it isn’t included in the Bill is that many social welfare recipients, if not all, subject to its assessment would fail to reach the threshold and the truth is that this Bill, while necessary and welcome in many ways, has a special interest in ensuring that outstanding water bills can be collected from the “refuse to pay category” in receipt of social welfare.

Social Welfare:

Is the point of social welfare not to provide the minimum of what people who are not in employment need to survive? How then can any deduction (even where as low as the €1 and €5 per week as mooted in the briefing) not cause additional hardship to those already experiencing poverty?

Apparent contradiction in that there is no provision for the deduction of fines from social welfare payments under the Fines (Payment and Recovery) Act 2014 and plans to introduce such arrangements.

Proceedings in Open Court:

I am really concerned that the civil debt proceedings will be taking place in open court.

At least with family law maintenance hearings only the parties to the case will hear all of the details of income and expenses.

The civil debt situation is in open court (District Court-often really full) where the debtor must file details of their finances or face prosecution and where the creditor can question the debtor in open court.

If the reasonable living expenses guidelines I have suggested were used, then a debtor’s affairs would only be opened out for the general public in cases where the expenses were above what was considered reasonable.  And the expenses would be the same throughout all the courts of the land.

Employment Protection Issues:

There is no protection in the Bill for the debtor against adverse or unfair treatment by his or her employer owing to there being an Attachment of Earnings Order against them.

This situation is different to a maintenance attachment in a family law context, which is regarded as a family matter/familial dispute/nobody’s business. In a failure to pay a civil debt context I am worried that an employer might infer that the employee is untrustworthy/unreliable.

FLAC Recommendation: Amend the Unfair Dismissals Acts 1977 to 1993 to specifically prohibit dismissal on the grounds of being subject to an attachment of earnings order.

Can the Minister explain why the Bill allows an attachment order to be obtained and notified to a person’s employer without any prior steps being taken to recover the debt?

Surely an Attachment of Earnings Order should only follow the debtor’s failure to meet the terms of an Instalment Order and where the varying of an Instalment Order downwards has been considered?

-END-

 

Quarterly Meeting of the Joint Committee on Health and Children and the Minister for Children and Youth Affairs, Dr James Reilly TD

Question submitted in advance by Senator Jillian van Turnhout:

Can the Minister provide an exact timetable for the progress of the  Government’s Adoption (Tracing and Information) Bill and advise what is hampering the progression of the Adoption (Identity and Information) Bill 2014 into the Dáil, following the completion of all stages in the Seanad on 18 February 2015 with support from all parties.

My Department is developing the Heads of the Adoption (Information and Tracing) Bill, and work on the Heads of that Bill is nearing completion. It will set out the information to be provided and circumstances in which it can be provided for past and future adoptions.

Officials in my Department are exploring all options with a view to balancing the needs of all stakeholders in this sensitive and complex and very personal matter. While I want to provide adopted people with as much information as possible about their identity, birth parents’ constitutional right to privacy must also be protected in this legislation.

The Heads will provide access to records for birth parents and adopted persons in so far as is possible in line with legal advices. I am proposing as progressive an approach as is possible within the significant legal and operational complexities which arise in giving effect to this objective.

The proposed legislation will provide for, inter alia,

  • Placing the National Adoption Contact Preference Register on a statutory basis
  • Arranging for the management of Adoption Records
  • Setting out the information to be provided and circumstances in which it can be provided both for retrospective and prospective adoptions.

I know that there are many people affected by adoption who are keen to see this legislation progress at the earliest opportunity, and I share that view. However, I am also concerned that we get it right. This is a complex piece of legislation, which must strike the right balance in respecting the rights of all of those involved. Regular and ongoing contact is maintained between my Department and the Office of the Attorney General in that regard.

It is my intention to have the General Scheme and Heads of Bill finalised as soon as possible and submitted for the consideration of Government, in advance of referral to the Oireachtas Committee on Health and Children.

In parallel, I have requested officials to commence an examination of operational arrangements for the preservation of, and access to, adoption records both to secure existing service provision and to make ready for any proposed new legislation.

The Adoption (Identity and Information) Bill 2014, introduced by Senators Power, van Turnhout, and Healy Eames, was passed by the Seanad on 19th November 2014 and that the draft Bill is at second stage in Dáil Éireann.

My Department has considered the draft Bill and notes that there is much to be commended in the draft Bill and, in relation to the areas of concern that it addresses, it is very much in line with the tenor of the draft Bill being prepared in my Department. On this basis I did not oppose the Bill.  However the Private Members Bill differs from that being prepared by my Department in that it does not differentiate between prospective and retrospective adoptions. In that respect, it does not fully address the complex constitutional issues that arise in relation to the provision of identifying information to those, and about those who were adopted in the past.

The Bill has been fully reviewed as part of the ongoing work of the drafting of the proposed Bill on Adoption (Information and Tracing).


 

2 July 2015: Quarterly Meeting of the Joint Committee on Health and Children and the Minister for Children and Youth Affairs, James Reilly TD

Question submitted in advance by Senator Jillian van Turnhout:

Given the new Article 42A of the Constitution of Ireland, will the Minister now conduct a law audit relevant to children to determine where gaps exist in full implementation of the United Nations Convention on the Rights of the Child and bring in a comprehensive Children’s Rights Bill.

 Article 42A provides an enhanced general visibility for the rights of children under the Constitution.  More generally, the new standard has the capacity to influence the approach to legislation beyond what is required by the letter of the new constitutional provision. The interpretation of the existing statute law is now subject to the new constitutional requirements and this will, no doubt, be reflected in jurisprudence in both public and private law in the years to come.

At the time the wording of the then proposed thirty-first amendment of the Constitution was published by the Government, there was a commitment to bring forward important amendments in adoption law. In order to fully inform consideration by the people of the constitutional change being put forward for their decision, the Government published the General Scheme of a proposed Adoption (Amendment) Bill 2012 which would flow from implementation of the change. With the thirty-first amendment now standing as part of the Constitution, in the form of the new Article 42A, my Department will proceed with arrangements to submit the promised Adoption (Amendment) Bill for consideration by the Oireachtas.

Specifically the amendment sets certain standards relating to determining the views and best interests of children in specified proceedings which both comprehend existing provisions and require that all future legislation must comply in the areas concerned.  The Government has also provided potent examples of this in the inclusion of provisions relating to the views and best interests of the child in the Child and Family Agency Act 2013 and the Children and Family Relationships Act 2015.

My Department has a number of other proposed legislative initiatives in train that aim to promote the rights and welfare of children.  These include the Children First Bill, 2014 to strengthen fundamental aspects of the child protection system which is currently before the Oireachtas; the Child Care Act (Amendment) Bill, to strengthen the legislative provisions for aftercare which is currently being drafted; and   work is continuing on the Heads of Bill for the Adoption (Information and Tracing) Bill.  I also mention in a separate reply to Senator Van Turnhout, that my Department is working on policy proposals for significant statutory reform of provisions relating to Guardians ad litem under the Child Care Act 1991.

I note that there is a major and wide-ranging initiative underway to advance the rights of children on a cross-government basis.  I refer to the on-going implementation of Better Outcomes, Brighter Futures: the National Policy Framework for Children and Young People 2014-2020, which is demonstrably rooted in the values and principles of the United Nations Convention on the Rights of the Child.  These values and principles will continue to guide the implementation and monitoring of Better Outcomes, Brighter Futures.

This universal strategy, covering all aspects of children’s lives, is a challenging and highly-focused whole-of-government undertaking.  Delivery of the 163 commitments set out in the strategy will result in better outcomes for children right across the spectrum of State inter-actions with the child and his or her parents and family. Along with the legislative programme, these are the mechanisms by which the implementation of the UN Convention on the Rights of the Child is being advanced.

A further important underlying process relevant to the question raised concerns the examination of Ireland by the United Nations Committee on the Rights of the Child which is scheduled to take place next January.  This provides a basis for engagement between my Department and other Departments of Government, preparatory to the meeting with the Committee, on issues it will raise regarding the State’s discharge of Ireland’s obligations as a party to the Convention.

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.

The Lancet

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