27th November 2012
I welcome the Minister of State. I also welcome the Bill in general. It is good to see it before the House and that the Minister for Justice and Equality, Deputy Shatter, used the committee process to formulate the heads of the Bill. I encourage more Ministers to use this process.
It is important that we do not view the Bill in isolation. It is part of a suite of legislation that includes the Children First Bill, the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012, the Criminal Justice (Spent Convictions) Bill 2012 and the recently passed children’s rights referendum.
I wholeheartedly support this Bill, but I will raise some concerns. One concern is the length of time taken to process vetting applications. From the documentation provided by the Library and Research Service I see that the process has improved considerably and been reduced to a matter of weeks. However, the employing organisations in question work with particularly vulnerable children. Having taken a straw poll during the weekend and today, voluntary youth work and sports organisations are waiting months. The average for vetting volunteers is three months, but could be as much as six months. We need to keep this point in mind. The Bill is not concerned with resourcing but it puts the same onus on organisations regardless of whether the persons in question are employees or volunteers. There is a slight get-out clause for large voluntary organisations. It is a considerable burden.
As Senators know, I am involved in the Irish Girl Guides. Someone who volunteers to be a leader wants to be active. I have no difficulty with that person not having unsupervised access to a group. However, one must wait for up to six months for vetting to come through. We can have all of the procedures and legislation in the world but organisations can commit a criminal offence under this Bill if they are not careful about the onus. There is a difference between an employee and a volunteer who helps out on a weekly basis. It is important that the Bill refers to occasional versus regular. However, there is a difficulty, in that they sometimes converge.
The Irish Girl Guides would never allow a non-vetted person to stay with a group overnight. Regardless of whether that person was supervised, he or she would not be allowed in the building. In the run-up to an event, though, a parent may offer to help for the weekend when a leader becomes ill and is unable to attend. We have found other solutions, for example, a leader must come from another area, but I am trying to apply to the Bill the reality of how the system will work in practice.
The Department of Justice and Equality has employed 20 civilians on a temporary basis and includes a number of personnel under the JobBridge scheme to work on the backlog. When the Bill comes into effect, the demand on the vetting bureau will increase significantly. Will this exacerbate the situation? Everyone involved in this debate wants to protect children. Sometimes, I run code of ethics training courses. Child protection in Ireland is a pendulum. For all too long it was stuck at one point and we did not want to consider that children were being abused in any manner or form. If we saw no evil, no evil was taking place. In a way, the pendulum has now swung to the other side. We have become overprotective and are placing burdens on organisations. It is important that we find the right balance in the centre. We should keep an eye on child protection without assuming that everyone is evil or that it is always a question of stranger danger. Some 92% of people who abuse children are family members or are known to the families. This is not stranger danger.
I welcome the provisions on the exchange of soft information. In light of a number of cases in recent years, our efforts would be toothless without that exchange. Under Part 3, subsection 12(3), an organisation can have the defence of “neither knew nor could reasonably be expected to know”. This covers volunteers partially, but I am concerned that there is an equivalence.
My second point relates to portability. Senator Power raised the issue of PPS numbers. I am confused about whether they can be used. Many of the people I know volunteer and a volunteer is likely to volunteer in more than one organisation. It is the person’s nature, yet he or she must go through the same vetting process repeatedly even if he or she is volunteering within the space of months or a year. I understand that the Minister will not provide for portability because an offence might have been committed during the two volunteering or employment opportunities, yet we are told that re-vetting is not practical. If one has been in an organisation for five plus years, one should be re-vetted. The Minister can consider this issue under the Bill, but no guidelines have been included. I am concerned that we are not sending out a clear message to organisations. Is it the case that, once one is in, one is safe and not a harm to children? I have a difficulty with the distinction between employees and volunteers. A volunteer with the Irish Girl Guides will work for two hours per week. Someone might volunteer for years without anyone ever knowing what occurs during the other hours of his or her weekly life.
I am also concerned about the status of being offered a job subject to vetting. I am conscious of the High Court case that is currently before Ms Justice Mary Laffoy about someone who failed to get a job with Kilkenny County Council because of five non-convictions relating to alleged criminal damage, road traffic matters and theft, all cases of which were struck out without evidence being heard. If an organisation has offered someone a job subject to vetting, what is its legal status in a lawsuit after the information comes through?
I support Senator Power’s point on childminding. If there is one issue on which I will table an amendment, this is it. We have excluded far too large a group. A grandmother or other family relative might mind a child, but some people engaging in childminding are gaining monetarily and should be covered by the legislation. If someone makes any financial gain, he or she should be covered. This vetting legislation will cover volunteers, but it will not cover people who make financial gains from minding young children. I have an issue with this and I will table amendments. Having read the Dáil debate, I have a number of concerns. In light of the time constraints, I will revert on the issue.
The spent convictions Bill is also before the House and I will table amendments to it. I am experiencing a dilemma regarding spent convictions.
A shoplifter may have the spent conviction wiped but it will be on the record for life. Therefore, if a person with such a conviction applies for any social care work, he or she will not be eligible for those courses.
We know from statistics that if a person has not re-offended in a certain time, he or she is as likely as me or anybody else to commit an offence. I have a difficulty with something being carried for life if there is a possibility of a person working with any group. I can understand such a stipulation if a person is to work with vulnerable children and adults, but I am concerned about its operation in mainstream organisations.
18th December 2012
I also tabled an amendment to deal with this issue. The difficulty I have is there is one big anomaly in the vetting and protection of children. The Child Care Act 1991 distinguishes three groups. Everyone is in agreement that the first group under section 58(a) are the relatives of the child or children or the spouse of such relatives but that is not what we are seeking to amend. We are referring to sections 58(b) and 58(c), which concern a person taking care of one or more preschool children of the same family and no other such children in that person’s home, or a person taking care of not more than three preschool children of different families in his or her home. A total of 92% of victims are abused by either a direct family member, somebody known to the family or somebody trusted by the family. The fact that the children are being minded in their home means they are members of a high risk group and, therefore, we need to explode the “stranger danger” myth. The reality is a child is most likely to be abused by someone known to, and trusted by, the family.
I agree with the Minister that there is a major difference between an informal, occasional child minding arrangement and an ongoing arrangement for a monetary consideration, which is what we are concerned with. I listened carefully to the Minister’s argument and I could use the same argument not to vet tennis coaches because they often engage in one-on-one training of children in a private arrangement with their families. I do not know why the Minister is protecting this group. This sector is unregulated. The Minister said the parents would have to vet. Why can such child minders not have to become a member of a professional organisation such as Childminding Ireland, or Early Childhood Ireland. Why can those organisations not vet on behalf of the parents? There are ways around this. Parents need to know the person minding their child in their home, as opposed to a public place or somewhere other people can interact with them, has been vetted. These minders are members of a high-risk group and that is why I tabled an amendment. I do not say it is a perfect amendment and I will be happy with any amendment that deals with this issue. This anomaly needs to be addressed.
I listened carefully to what the Minister had to say. As I stated on Second Stage, I welcome the Bill. It has been long-promised. It is great that we are debating it and I will do everything I can to ensure its successful passage.
I am torn on this issue. It is an issue, not only in regard to vetting, but which has been neglected, of regulation. It is preschool children on whom I am particularly focussed which is why I looked to sections 58(b) and 58(c) of the Child Care Act 1991. It is quite defined there. We are talking about preschool children. It is the early years education sector. The organisations working in this area are the organisations which came to me and asked that we would put forward amendments in this area. They see it as an issue. I do not lightly propose amendment No. 8.
I believe it is an issue. Perhaps we cannot solve it today, and that is where I feel torn. There is an issue about where there is a regular ongoing financial consideration. Nobody I have heard is talking about ad-hoc or occasional arrangements. There are persons who are minding children in their homes every day of the week for a financial consideration and they are acting as a business. The Minister is saying they will be exempt and I have considerable difficulty with that.
I have listened carefully to the debate because, like the Minister, at the beginning of this issue I would also have supported Senator Ó Clochartaigh. It is important, however, that organisations would know of such soft information. The Minister’s words have been very useful. My difficulty is that a conviction, or even a spent conviction, is barring people from so many professions. I have a huge difficulty with that. For example, one cannot do courses in the social work and care professions if one has had a previous conviction, even if one has been rehabilitated. I understand what the Minister is saying about having the knowledge, but I do not think that all such avenues should be closed off for one’s whole life because a person shoplifted once in his or her early 20s. It was wrong but if people took the punishment and were rehabilitated they should be allowed to go on. It is about striking the right balance. While it may not necessarily be relevant to this Bill, when we get back to dealing with spent convictions, there is an issue about how such people are treated by organisations and professions.
I seek clarification in respect of section 12(5), which states, “This section shall not apply to any employment, contract, permission or placement referred to … that commenced or was entered into … before the commencement of this section”. I looked at that section and then read paragraphs (a), (b) and (c) of section 21(1), which refers to retrospective vetting. I believe these provisions contradict each other and I seek clarification to try to understand. I lack the Minister’s legal expertise but a few people have asked me this question about the apparent contradiction within the Bill. I note section 21(1) goes on to state “where the person concerned has not previously been the subject of an application for vetting disclosure under this Act, not later than such period as may be prescribed, make an application for vetting disclosure … in respect of that person”. Consequently, it appears as though one part or the Bill states they are not. While I am absolutely sure the Minister can give me an answer to try to explain, I have read the provisions several times and believe they contradict each other.
I thank the Minister for that clarification. My difficulty is that were I an employee, under section 12, I could claim that vetting does not apply to me. If one then puts in place retrospective vetting, it is about the organisation but as an employee, could I refuse to be vetted? I refer to the position into which that could put an organisation.
I have a comment on section 19, which partly speaks to what Senator Ó Clochartaigh has proposed. My background, as the Minister is aware, is in youth work organisations. I am confused as to whether an organisation must report to the HSE, the Garda Síochána and the bureau. Why can the authorities not speak to one another? Why is the onus put on organisations to do all of the reporting? My background is in the Irish Girl Guides. If a concern is reported to the HSE, for example, and it follows all the Children First guidelines, will it then not be following protocol in that it has not reported the concern to the bureau or the Garda Síochána? I found the section confusing.
I accept what the Minister said but my difficulty is that looking at the situation from the perspective of organisational resources, the onus is being put on the organisations to do what could be called double-reporting, but my concern is that we are not getting the arms of the State to ensure that they report to one another and that one would have the HSE reporting to the Garda Síochána or sharing information. The Bill places the burden on organisations. I understand about vetting, but if one has a voluntary youth work organisation the Bill places a big onus on it, for very good reason, but I wish to ensure that an organisation would not inadvertently fail to comply with the law because of the multiple reporting requirements.