The Children First Bill was published in April 2014, and the legislation is still progressing through the necessary debate stages prior to enactment. A Heads of Bill document had been published in 2012 and put out for consultation. That document had contained proposals that were extremely broad, covering all services provided to children whether educational or recreational and imposed responsibility for reporting on designated persons, who would be held liable for the failure of the service to report suspected child abuse. It also provided for significant penalties including imprisonment for up to 5 years for failure to report. Following the publication of the Heads of Bill, a number of organisations made submissions, and a series of oral hearings was conducted by a government subcommittee which subsequently published a report.

The subsequent Children First Bill was a considerably watered-down version of the Heads and reflected widespread concern, particularly from doctors, youth services and teachers about some of the measures originally proposed. In the 2014 Bill, the sanctions had been deleted, the number of services to be included had been reduced and the role of designated persons had also been removed. Instead, the Bill proposed to mandate defined categories of persons who would be required to make a report to the statutory child protection service when they know or believe that a child has been harmed, is being harmed or is at risk of being harmed. ‘Harm’ is defined in section 2 of the Bill as ‘to assault, ill-treat, neglect or sexually abuse the child, whether caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances or otherwise’. The concept of ‘ill treatment’ is defined as ‘to abandon or cruelly treat the child, or to cause or procure or allow the child to be abandoned or cruelly treated, in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare’ and ‘neglect’ is defined as ‘to deprive the child of adequate food, warmth, clothing, hygiene, supervision, safety or medical care in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare’. In an attempt to promote inter-agency collaboration, the Bill requires reporters to assist the Agency in the assessment of child protection risk and stipulates the establishment of an interdepartmental group to be placed on a statutory footing.

The recent move towards adopting a mandatory reporting law in Ireland was heavily motivated by consecutive revelations of child abuse scandals within the Catholic Church about which not only the actuality that priests and members of religious orders had sexually abused children, but the denial and feeble efforts of the Church authorities to deal with the problem caused considerable disquiet. One of the earliest cases of child sexual abuse by a cleric to be revealed in Ireland was that of Fr Brendan Smyth. In 1994, this Norbertine priest received widespread media attention after he was charged on 74 counts of indecent sexual assault and sentenced to 12 years in prison. It was revealed that the superiors in his order had responded to earlier reports of sexual misconduct with children by simply moving him through different locations in the republic and in Northern Ireland. Culpability was also attributed to the State; the failure to extradite Smyth to Northern Ireland for similar charges resulted in the resignation of the then Prime Minister as well as the President of the High Court. As Keenan (2012, pp. 19–20) has pointed out, the case highlighted the extent to which strong affiliations existed between the State and Church in Ireland. It brought to light the influence of the Church hierarchy over Irish political process but equally the protection afforded to the Church by the State when one of its members was accused of a serious crime.

Further, controversy and scandal continued to plague the Catholic Church in Ireland for the following two decades during which a series of TV documentaries exposed instances of physical and sexual abuse by the catholic clergy. These documentaries provoked public concern around the mismanagement of cases at the time they were reported and the lack of accountability by those who were in authority (Goode et al. 2003, pp. 8–9).

However, by the late 2000s, the establishment of a number of Commissions into the occurrence and handling of child abuse by the Catholic Church in Ireland revealed a new history of ill treatment of children. The Commission to Inquire into Child Abuse (2009) exposed a multitude of physical, emotional and sexual abuses of children as well as their consistent neglect, whilst the Commissions of Investigations into the Archdiocese of Dublin (2009) and Cloyne Diocese (2010) concentrated on child sexual abuse and the Church authorities’ failure to notify the appropriate public bodies when an accusation was made against a priest. In response, the Minister for Justice stated in the Seanad Eireann debates:

The Members in this House would be well aware of the content of published reports, such as the Ryan, Murphy and, more recently, Cloyne reports. These provide a litany of quite shocking revelations concerning the sexual abuse of children and failure to respond to that abuse…It is clear from these revelations and the various published reports that if those who had knowledge in the past of sexual offences committed against children had informed the Garda, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators. There is a compelling argument, therefore, for closing the current loophole in the law.¹

The impetus for introducing mandatory reporting legislation could also be seen as part of the evolution children’s services in Ireland. Over the past four decades, the Irish child protection system has developed from what was quite an embryonic service to one which is today comparable to others in the Anglophone world and based on similar principles. Social policy analysts have tended to classify child protection systems in terms of their orientation, identifying some countries having a ‘welfarist’ approach underpinned by universal services, early intervention and family focused solutions, and others with a ‘child protection’ approach, based on the residual service provision and a regulated, investigative approach. The former approach is more commonly found in the mainland Europe, whereas the latter is more prevalent in the English-speaking world (Hill et al. 2002; Lonne et al. 2009). However, closer examination of the jurisdictions that operate different approaches indicates an increasing homogenisation as the formerly investigative regimes become more family support oriented, and the welfarist systems adopt more regulation and procedure (Gilbert 2012). The Irish child protection system never consciously adopted a strong or polarised orientation on which to develop. Its nearest comparator would probably be the ‘family focused child protection’ approach described by Connolly (2007) in respect of New Zealand. Ireland signed the United Nations Convention on the Rights of the Child (UNCRC) in 1992. The Child Care Act 1991, following the example of other signatories of the convention, was based on underpinning principles of early intervention, prevention, family support and collaborative service provision. Implementation of these measures is not compelled under domestic law, and they are followed more in spirit than the latter. Similarly, whilst the law emphasises the need for inter-agency collaboration, children’s services in Ireland have remained divided between statutory and non-statutory providers, with only the former perceived to be under any legal obligation in respect of the protection of children.

National child protection reporting procedures of one type or another have been operating in Ireland since the 1980s. These, however, have had the status of guidelines, and whilst they were considered to be ‘overarching’ and ‘administratively mandatory’ (Department of Health & Children 1999; Murphy et al. 2005, p. 54), they had no legal basis, although certain professionals could be considered legally negligent if they failed to exercise a duty of care to a child in their charge. As in other jurisdictions, the system was subject to what have been called ‘radical ruptures’ (Foucault 1975, p. 96) instigated by a combination of scandals and increasing awareness of the prevalence and impact of harm to children. A series of inquiries into highly publicised child protection failures, including the aforementioned clerical sexual abuse scandals, have led to what have generally been regarded as ‘predictable’ responses (Buckley and O’Nolan 2013; Parton 2004) identifying, amongst other failures, low standards of communication between disciplines and agencies. Following the ubiquitous trend of child protection inquiries worldwide in assuming that increased regulatory measures have the capacity to rationalise an unwieldy arena of work, a number of Irish reports recommended legislative reform including the introductions of sanctions for failure to report suspected child abuse (Buckley and O’Nolan 2013).

After an initial flurry of activity in the mid-1990s, the matter of mandatory reporting lay dormant through several political administrations, some of which reconsidered and subsequently rejected it because the evidence of its advantages was equivocal. This was in the context of a growing concern that most investment in the child protection services was being expended in the investigation of cases at the expense of preventative interventions at a community level; there were concerns that mandating reporting of suspected child abuse would deepen this imbalance (Department of Health 1996). However, the publication in 2009 and 2010 of further reports documenting abuse by priests and religious in the dioceses of Dublin and Cloyne (Commission of Investigation 2009, 2010) together with the ensuing public anger at Church authorities provided a political opportunity in 2011 for the newly formed government to take a strong position on child protection. For the first time, a full government department was established to deal with child and youth affairs, and a reform agenda was established. In this context, the government decided to revive the debate on mandatory reporting and in 2012 began the process of legislating. A constitutional referendum was held in Ireland in late 2012, with the objective of enshrining the rights of children in the Irish Constitution; the government used the term ‘child protection’ extensively in its campaign and implied that its own record of introducing reform was a step towards achieving the goal of the referendum, thereby attempting to unify the twin concepts of responsibility to report and children’s rights in the mind of the voter. In effect, the main outcome of the referendum (which at the time of writing is still being contested in the Supreme Court) will be a change in the adoption law and an obligation on Courts to hear the views of children, neither of which have much bearing on child protection per se.