© Springer Science+Business Media Dordrecht 2015Ben Mathews and Donald C. Bross (eds.)Mandatory Reporting Laws and the Identification of Severe Child Abuse and NeglectChild MaltreatmentContemporary Issues in Research and Policy410.1007/978-94-017-9685-9_13
13. The Sins of the (Irish) Fathers: Is Mandatory Reporting the Best Response?
School of Social Work and Social Policy, Trinity College Dublin, Dublin, Ireland
KeywordsMandatory reportingChild abuseChild protectionPolicyClergyProtection systemsProtective servicesReportingReligionChild abuse
This chapter will consider the likely impact of imminent mandatory reporting legislation in Ireland and ask if, given the intelligence available to us, it is likely to achieve beneficial outcomes. It will deal with the question principally from the viewpoint of professionals from the various sectors who are likely to be scheduled as reporters. This perspective has been explored through the recent Irish empirical research conducted for a doctoral thesis by one of the authors (Buckley 2013). The study challenged the notion that a technical solution such as legislating for reporting can be effectively applied to such an inconsistent, dynamic and divisive social issue as child abuse. First, however, the proposed legislation will be briefly described, and the context in which the legislation has been developed will be explained, followed by an examination of three contextual factors in order to provide a backdrop for the exploration of the main question. These factors are the Catholic Church and its link with national politics, the formal child protection system and the perspective of service users whose interests the law proposes to address.
Proposed Mandatory Reporting Legislation
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 Context in Which Mandatory Reporting Will Be Introduced
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.
The Catholic Church and Irish Politics
In Ireland, historical links have bound the Church and government together since the foundation of the state (Raftery and O’Sullivan 1999). However, a speech made in the Irish parliament by the Prime Minister Enda Kenny in July 2011, in which he stated ‘This is not Rome … this is a republic of laws, of rights, of responsibilities’ (Oireachtas debate 2011), was seen by many as representing a severance in relations between the Irish State and the Church that had been building up for at least a decade as more instances of abuse by Church members were uncovered. Despite this schism, the activities of one cannot be viewed separately from the other where a topic like child abuse is concerned, and the connection between the two has been a major preoccupation of the government in its considerations about legislation and policy. Undoubtedly, the more recent response of the government was provoked by the recalcitrance of the Catholic Church. In the same speech which has since been considered to encapsulate the current Irish government attitude to the Church, the Taoiseach (Prime Minister) responded to the publication of the Cloyne report in July 2011, identifying it as the exposure of ‘an attempt by the Holy See, to frustrate an Inquiry in a sovereign, democratic republic…’ He went on to offer an assurance that ‘through our Government’s action [to put child protection guidance on a statutory footing] those who have been abused can take some small comfort in knowing that they belong to a nation, to a democracy where humanity, power, rights, responsibility are enshrined and enacted, always….always…. for their good’ (Oireachtas debate 2011).
Outside the domain of the Church, however, there was actually no empirical basis for arguing that the absence of legislation supported the reluctance to report on the part of health and welfare professionals. The number of reports made to the statutory child protection system has been growing consistently and doubled between 2007 and 2012. The principal reporters have been police, schools and health and welfare professionals who account for three quarters of referrals made (HSE 2014). Reviews and inquiries into cases of intra-familial child abuse which occurred during the period of ‘modern’ child protection service provision showed that most cases where deficiencies or errors were evident had been referred to the services on many occasions over the years. The principal weaknesses were related to delayed or inadequate responses, failures in inter-agency collaboration and incompetence in coordinating interventions (see, e.g. Brosnan 2008 and Gibbons 2010).
Whilst it is now known that Church authorities in Ireland had been aware of the problem of child sexual abuse by priests for a considerable period (Raftery and O’Sullivan 1999; Commission to Inquire into Child Abuse 2009), its extent has only been made clear in the past 20 years in Ireland through the publication of the aforementioned Commissions of Inquiry. The Church has responded by establishing a National Safeguarding Board for Children in the Catholic Church, one of whose functions is to audit the conformity of different dioceses and religious orders with the national policy and procedure. Almost all of the cases highlighted occurred more than 15 years ago, and most of the alleged perpetrators are deceased or have left the Church at this point (NBSCCC 2013). Despite this, scrutiny of the child protection activities of the Church endures primarily because of their history of unashamed noncompliance with protocols requiring them to report misdemeanours to the authorities.
Two important factors have to be borne in mind when considering the Church’s apparently errant earlier response to reports that their members had committed sexual, physical and emotional abuse as well as neglect. Firstly, the fact that this was an institution that effectively determined the moral code of individuals and families inevitably elicited an extreme and angry reaction. However, it also has to be acknowledged that the number of children that were abused by religious is very low when compared to the maltreatment that has been inflicted on children by their families. Since the year 2000, approximately 300,000 reports have been made to child protection services; the vast majority of which concerned neglect or welfare issues occurring within families. In comparison, during the same period, eight allegations have been made against priests or members of religious orders pertaining to current (as opposed to historical) abuse (NSBCCC 2012, 2013). This is not to deny the individual significance of the alleged incidents but to demonstrate that the overall political response to child abuse is not being determined by what will be most effective for the majority of victims and vulnerable individuals but instead by a number of isolated cases. The political considerations on which mandatory reporting has been based are therefore not representative of the current scenario in Ireland which is evidenced in the statistics outlined above.
The second issue is more complex, and it is basically that even if a requirement to report suspected child abuse had been made legally mandatory decades ago, it would probably have had limited effect within the Church. The Church’s own procedures for reporting child protection concerns, first established in the Framework Document (1996) and later updated by Our Children Our Church (2005), were inconsistently followed, as evidenced by the Ferns Report (Murphy et al. 2005) and the alter Murphy report (Commission of Investigation 2009). The Church reporting guidelines, known as the ‘Framework Document’ operating from the mid 1990s (Irish Catholic Bishops Conference 1996), set out a clear mandate that all complaints of child sexual abuse were to be reported to the police and the health boards, and a low threshold of ‘reasonable suspicion’ was to be applied. Despite this, both the Ferns and Murphy reports revealed that the guidelines were never implemented to an effective standard by Church officials. The later Cloyne Report (Commission of Investigation 2010, pp. 71–72) reiterated this, observing that too much concern was placed on attending to the needs of the alleged priest, at the expense of the victim. Importantly, communication from the Congregation of the Doctrine of the Faith in Rome expressed reservation about the contents of the Framework Document; this was seen to give tacit permission to those in positions of authority within the Irish Church to ignore it.
There was also a verbal evidence of the Church’s sense of disconnectedness from the regulation by civil authorities; commenting on a news story in 2010 which revealed that the Catholic Primate of Ireland had failed to report an incident to the authorities during the 1970s, a professor of canon law commented that the Primate had been ‘under no obligation whatsoever’ to make a report at the time (Irish Times 16th March 2010). The perception held by the Church of their own exemption from the civil law had by that time been very firmly dismissed by the Irish Minister for Justice in 2002 famously comparing the status of the canon law to ‘the rules of a golf course’ (Irish Independent, 24 October 2002).
It can, however, now be claimed that the Church’s former attitude has been utterly eradicated, and the Catholic hierarchy has accepted the very firm message conveyed to them that they are subject to the same obligations, legal or otherwise, as any other body. This began in 2002 with the announcement from the Irish Bishop’s Conference of a nationwide independent audit of the handling of the child sexual abuse complaints from 1940 onwards. This review was later subsumed into the Commission to Inquire into Child Abuse run by the State, on the basis that it was duplicating the work of the Commission, but did signal the intention of the Church to clean up its act. The Primate of All Ireland Cardinal Brady recently reiterated in public that ‘Vigilance is our watch word’ (Irish Catholic Bishops Conference 2013) in respect of child protection and has opened safeguarding activities in the Church up for public scrutiny. The National Board for Safeguarding Children in the Catholic Church conducts and publishes audits, measured against rigorous standards and holds individual bishops to account for any deficits in their safeguarding activity. All community and institutional activities that involve the Church, even where their contact with children is small, are obliged to comply with the standards (NBSCCC 2009). Each diocese is subject to audit by the Child and Family Agency as per the recommendations of the Ferns inquiry (HSE 2013). As a consequence of their previous insubordination, the child protection measures operated by the religious in Ireland are subject to far greater levels of formal surveillance and audit than any other organisation in the state.
The Current State of Irish Children’s Health, Education and Welfare Services
Irish child protection services have become increasingly regulated in the recent past, with a heavy concentration on the standardisation of the processes used and a restructuring of the sector. Elements of the new public service management have been introduced with key performance indicators based on the most quantitative aspects of the work. As in many other countries, there is a drive towards introducing alternative or differential response systems to deal with cases not requiring a statutory response; however, this has been compromised by deep budgetary cuts. As outlined above, statistical information indicates a steady escalation in referrals to statutory child protection services. Concern was raised in a recent government debate about the long waiting list of child protection cases waiting to be processed and allocated (Oireachtas debate 25th September 2014). This strongly indicates a limited capacity not only to respond but to fully investigate child protection reports.