The issue of Child Protection has been very much in the news of late, so now is a good time to take stock.
The Children First Act 2015 (the “Act”) was enacted in 2015, however, it is largely uncommenced, one exception being the removal of the abolition of the defence of reasonable chastisement. A person who administers corporal punishment to a child will no longer be able to rely on the defence of reasonable chastisement if charged with an offence against the child. The abolition of this defence may affect schools more than was first realised, for example, regarding when a student reports a physical incident involving a family member and the actions to be taken by statutory authorities. Once commenced, the Act will provide a statutory basis for the requirements for organisations providing services to children to:
- keep children safe and produce a Child Safeguarding Statement
- require defined categories of persons (mandated persons) to report child protection concerns over a defined threshold to the Child and Family Agency (Tusla)
- require mandated persons to assist Tusla and “to give to the Agency such information and assistance as it may reasonably require” in the assessment of achild protection risk.
The Act gives a very clear signal of intent that child protection is a priority.
Child Protection Procedures
These have been on the radar of schools for many years. In 2011, the Department of Education and Skills updated the Child Protection Procedures for Primary and Post-Primary Schools (the “Procedures”). The Procedures outline the definition and recognition of child abuse, the responsibilities of all school personnel, and how to report instances of child abuse. Schools must have a Child Protection policy which conforms to the Procedures.
Tusla and an Garda Síochána should always be informed when a person has reasonable grounds for concern that a child may have been abused, or is being abused, or is at risk of abuse. The requirement to report has been further amplified by the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012.
The Procedures also outline the approach to be taken when dealing with allegations made against staff, including the process where staff may have to be suspended. The Procedures make it clear that the welfare of the child is paramount. Schools must also ensure that appropriate supports are put in place for staff where allegations of abuse have been made against them. School employees may be subject to erroneous or malicious allegations, therefore, an allegation of abuse or neglect should be dealt with sensitively and support, including counselling, should be provided for staff. The employee should be treated fairly which includes the right not to be judged in advance of a full and fair enquiry.
The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012-2016 (the “Vetting Acts”) was commenced in April 2016. The Vetting Acts provide a statutory basis for the mandatory vetting of persons who wish to undertake certain work or activities relating to children or vulnerable persons. Failure by employers to ensure this is a criminal offence. A person who refuses to be vetted cannot be employed in any capacity, this also applies to volunteers.
It is important to emphasise that the Vetting Acts are concerned with criminal offences. Schools must also ensure that their duty of care is fulfilled, for example, proper recruitment processes such as checking references, seeking explanations for gaps in employment etc, should be followed at all times.
Third Level and Fitness to Practice
Many Third Level Institutions (“Institutions”) offer courses which include placements where there is access to children or vulnerable adults.
Institutions should ensure that they have a robust Fitness to Practice policy in place. Such a policy should deal with issues such as medical fitness to practice, Garda vetting, certification by medical professionals, how fitness to practice concerns are dealt with, possible outcomes and interaction with the other policies of the Institution.
Concerns regarding child protection must be dealt with as a matter of the utmost urgency, using the Procedures and complying with relevant legislation.