Tuesday, December 01, 2009

Dublin Archdiocese Report and the Law

Does the law need to be changed as a result of the Dublin Archdiocese Report on Child Sexual Abuse (the Murphy report, 2009)?

The report includes the following at pages 104 and onwards (edited):

"6.21 The Child Care Act 1991 was the first Act to place statutory responsibility on the health boards to promote the welfare of children not receiving adequate care and protection. Its only reference to child sexual abuse was to provide that sexual abuse of children would be among the criteria for seeking court orders.

"6.22 The stated purpose of the Child Care Act 1991 is “to provide for the care and protection of children and for related matters. Section 3 of the Act places a statutory duty on health boards to promote the welfare of children who are not receiving adequate care and protection. This section came into effect in December 1992....

"6.24 Section 69 provides that “The Minister may give general directions to a health board in relation to the performance of the functions assigned to it by or under this Act and the health board shall comply with any such direction”. No such direction has been issued.

"6.25 As is pointed out in the Ferns Report, this new obligation was not accompanied by new powers to intervene in specific situations. When introducing the Bill in 1988, the Minister for Health talked about the “imaginative use” of the new provisions. Legal provisions need to be clear and unambiguous with little scope for, and no requirement to use, imagination.

"6.26 As already stated, the Health Act 1970 did not enumerate all the functions of the health boards. The Health Act 2004 which established the Health Service Executive (HSE) is drafted in a similar way: it confers on the HSE those functions which were formerly carried out by the health boards. The Commission considers that it would be preferable if there was a clear unambiguous listing of the statutory functions and powers of the HSE so that there could be no doubt about the extent of its power to intervene in child protection issues.

What is the role of the health authorities in relation to clerical child sex abuse?

"6.27 Under the Child Care Act 1991, the health boards, and now the HSE, have a general duty to promote the welfare of children who are not receiving adequate care and protection. The Commission agrees with the Ferns Report analysis of the powers of the health boards. The Ferns Report takes the view that the powers conferred on the health boards by the 1991 Act are designed to protect a child from an abusive family situation. It is the parents or guardians who are responsible for dealing with the matter in cases of third party or extra-familial abuse. The Ferns Report also points out that the powers available to the health boards under the 1991 Act are not significantly greater than those available under the 1908 Act.

"6.28 Notification to the health board of alleged abuse by priests does not seem to serve any useful purpose if the health boards do not have any power to do anything about it.

"6.29 The method by which the boards recorded such notifications, that is, by the name of the child, while appropriate for family abuse, is not appropriate for extra-familial abuse. There is no point in recording alleged abuse by a person who is in a public position, for example, a priest, a teacher, sports coach, by the name of the abused person. This information needs to be recorded by the name of the alleged abuser and by the school, parish, sports club or other relevant body. The Commission is not aware of any legal reason why this information could not be collated and classified in this way by the HSE. For the avoidance of doubt, the Commission considers that the HSE should be given specific statutory power to maintain such a record.

"6.30 The Commission is not suggesting that it would be appropriate for the HSE to have the power to intervene where the child is being appropriately cared for by parents or guardians. It is concerned about the lack of clear power to collate and maintain relevant information and to share that information with other relevant authorities.

"6.31 In the case of M.Q. v Robert Gleeson and others [1997] IEHC 26; [1998] 4 IR 85, Mr Justice Barr took the view that health boards had an implied right and duty to communicate information about a possible child abuser if, by failing to do so, the safety of some children might be put at risk. Before making such a communication, the health boards had certain duties to the alleged perpetrator. This judgement has been viewed quite differently by the Ferns Report and the health boards/HSE. The Ferns Report was clearly concerned about the legislative basis for this wide ranging duty to communicate while the health boards/HSE concerns relate to restrictions on their ability to communicate because of the requirements to inform the perpetrator. The Ferns Report took the view that the only power available to health boards to inform parties that allegations of child sexual abuse have been made against a particular person is “one inferred from the wide ranging objective of child protection” imposed on health boards by the Child Care Act 1991. It went on to express the view that the implication of such a duty on health boards without any express legislative powers is an issue which should be carefully considered by the Legislature. The HSE told the Commission that the judgement in this case (generally known as the Barr judgement) had “significant implication for the management of child sexual abuse cases by the Health Boards/HSE. It provided that the Health Boards/HSE (except in cases where a child is believed to be at immediate risk of suspected child sexual abuse) before passing on any information with regard to a suspected child abuser to a third party, must give the allegations in writing to the alleged perpetrator. The alleged perpetrator must then be given the opportunity to respond in person to the HSE before the HSE makes its decision on whether or not to pass on the information to a third party. Recent legal advice is that the opportunity to appeal the decision of the HSE to pass on information to a third party must also be given to the alleged perpetrator.

"6.32 The Commission considers that the law should be clarified in order to confer on the HSE a duty to communicate to relevant parties, such as schools and sports clubs, concerns about a possible child abuser. The extent of the HSE obligation to notify the alleged perpetrator, if any, should also be clarified."

The Taoiseach has responded as follows:

"The Commission's Report expresses concern about the statutory powers of the Health Service Executive to deal with child sexual abuse by non-family members. Minister Andrews' Office is consulting further with the Office of the Attorney General to seek clarity in this regard. However, in the wake of the publication of the Ferns Report in 2005, legal advice was sought from the Attorney General in relation to the powers of Health Boards/HSE to investigate and deal with instances of Child Abuse perpetrated outside the family. The Attorney General was not of the view that the HSE's powers under Section 3 of the Child Care Act (1991) are limited to cases of intra family abuse. The HSE has stated that it responds to all allegations of child sex abuse regardless of the circumstances of the allegation."

This seems an inadequate response to the specific points raised in the Murphy report about the Child Care Act 1991 and the legislation concerning the powers of the HSE.