I am delighted that my recent work on the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 has secured three important wins towards increased protection for child witnesses in criminal proceedings.
I look forward to bringing you my next update soon. Feel free to contact me if there are any issues you would like to discuss.
Disclosure of complainants’ confidential records in criminal proceedings, be they medical, psychiatric, or therapeutic, and indeed be the complainant an adult or a child, in the absence of any legislative guidelines is an issue of considerable and pressing concern to me.
The genesis of the Amendment I submitted to the Courts Bill was my heightened concern by reports from practitioners treating sexually abused children of increasing requests from the DPP’s office for access to therapy notes from children’s private and confidential therapy and counselling sessions over the last 6-12 months.
To understand the difficulty thrown up by these blanket requests for disclosure, 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 and trial and is rightly subject to disclosure. The second phase, the therapy and in turn the therapy notes, is concerned with documenting the child’s feelings, thoughts, hopes, fears, dreams and the like. If any information arises in the course of the therapy phase that 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 already disclosed as a matter of course. The information left, contained in counselling records and therapeutic notes has no material relevance but is the heart and soul of a damaged child and should not be subject to blanket disclosure.
I saw this Bill as an opportunity to introduce much needed legislative provision and clear practice for the disclosure of sexual assault counselling communications of children who are witnesses in a criminal trial whereby such disclosure would only be granted by the trial court if: the evidence sought has substantive probative value; there is no other evidence which could prove the disputed facts; and the public interest in disclosure outweighs the potential harm to the child.
In tabling my substantive Amendment I was acutely aware of the need to strike the proper and appropriate balance between the right of child witnesses in child sexual abuse cases to privacy as well as their right not to be re-victimised or unduly traumatised by the criminal justice system, the right of the accused to procedural fairness, and the public interest.
Following extensive research and legislative analysis around disclosure practices in other jurisdictions, I believe the legislative solution I proposed was wholly compatible with Irish Constitutional law, Ireland’s obligations under the European Convention of Human Rights, and in the best interests of the child.
While the Minister for Justice and Equality, Alan Shatter TD, was not in a position to accept my Amendment at either Committee or Report Stages, I was extremely heartened by his support for my efforts and the extent to which he positively engaged with resolving what he accepts is a lacuna in the law.
As a result of my Amendment, Minister Shatter has decided that instead of awaiting the examination of the issue by the Law Reform Commission as part of its fourth programme, which would have seriously delayed legislative action, the issue will now be addressed in the forthcoming Sexual Offences Bill, to be published at the end of October at the latest.
In addition, and in direct response to a separate issue I raised at Report Stage about the traumatic and detrimental impact of repeated interviewing of child victims by separate agencies (most commonly in the context of a parallel Garda investigation alongside a child protection investigation), Minister Shatter agreed that repetitive interviews should be avoided and committed to raising the matter with the Minister for Children, Frances Fitzgerald TD, with respect to the approach taken by the HSE and new Child and family Agency, and the Garda Commissioner.
Finally, you will recall in my last newsletter that I raised my concern over reports of routine breaches of the Children Act in Children Courts during Second Stage of this Bill and secured a commitment from Minister Shatter to have his officials write to the Courts Service to raise the matters and to ensure any breaches are remedied.
All in all this Bill, originally introduced to amend the in-camera rules for representatives of the press in family law and child care proceedings, and to raise the monetary amounts that the District and Circuit Court can award, evolved into quite the vehicle through which to increase the protection of children in the criminal justice system.
It is at times like these that I fully appreciate the privilege of my Senatorial role, which allows me to directly input and effect positive change in the legislation we are developing.
I would like to commend the stellar work that has been done on this issue over the past number of years. Particularly, the concerns raised by Dr Geoffrey Shannon, Government appointed Special Rapporteur on Child Protection, in a number of his annual reports, most recently his 4th Annual Report published in 2010.
I also note the calls for action by many children’s and human rights NGOs, civil society organisations and practitioners in the field of specialised assessment and therapeutic services for children that have been sexually abused. I am grateful in particular to the support and advice I received from the Rape Crisis Centre Ireland and Children at Risk Ireland in understanding the current lacuna in the protection of confidential therapy notes and records and developing the legislative solution I proposed.
Last but not least, I would like to thank my Seanad colleagues: Ivana Bacik (Labour); Averil Power (FF); Martin Conway (FG) and Trevor Ó Clochartaigh (SF) for the cross party support my Amendment received at both stages of this important debate.