Commencement of the Children First Act 2015 and introduction of new Children First: National Guidance for the Protection and Welfare of Children

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The revised Children First: National Guidance for the Protection and Welfare of Children were launched in early October 2017.  It is essential for all GP’s to be cognisant of their obligations under this Guidance, which supersedes earlier versions published in 1999 and 2011. 

This article is merely an overview and is not intended to be a substitute for GPs reading the Guidance in detail. Tusla has also devised an e-learning training module which is available at www.tusla.ie.

The updated Guidance was published to take into account requirements under the Children First Act 2015.  Until now, only some of the provisions of that Act have been in force.  However, the Act will be fully commenced on 11 December 2017 and specific child protection obligations will be imposed on Mandated Persons from that date forward.  The Children First Act 2015 will operate side-by-side with the non-statutory best practice which is outlined in the Guidance.

Mandated Persons have contact with children and/or families and because of their qualifications, training and/or employment role, are in a key position to help protect children from harm. 

GPs are Mandated Persons and as a result, have two key obligations under the Children First Act 2015 and Guidance:

  1. To report the harm of children above a defined threshold to Tusla; and
  2. To assist Tusla, if requested, in assessing a concern which has been the subject of a mandated report.

1. MANDATORY REPORTING

Harm is defined as assault, ill-treatment, neglect or sexual abuse.  The Guidance describes each category of harm in detail in Chapter 2 and it also details how to assess the threshold for harm at which a mandatory reporting requirement will be triggered.

If you have reasonable grounds to believe that a child’s health, development or welfare have been or are being seriously affect, or are likely to be seriously affected, the threshold for mandatory reporting is met.  If you have doubts as to whether your concerns meet the threshold, contact Tusla to discuss your concern and to seek guidance.

If you have a concern about a child, you need to assess whether it meets the threshold for a mandated report or not. If you are satisfied that the threshold is met, you need to report the matter and mark your report clearly as ‘a mandated report’.  The form template is available at www.tusla.ie and it is important for you to use the prescribed form.

Include as much information as possible to assist the social workers, such as:

  • The child’s name, age, address and school
  • Names and addresses of parent’s guardians
  • Identity of the alleged perpetrator
  • An account of your grounds for concern
  • Whether there are other children potentially at risk e.g siblings in the household and their names
  • Your name, contact details and relationship to the child. (Note: Mandated Persons cannot make anonymous reports and attempting to do so would put you in default of your legal obligations.)

Reports should be made to the local social work duty service in the area where the child lives.  Contact details for the Tusla social work teams are available on www.tusla.ie.

You are not required to inform a family that you are making a report but it is best practice to do so (to include explaining your reasons) unless informing the family:

  • may place the child at further risk; or
  • impair Tusla’s ability to investigate the concern and carry out a risk assessment.

Details on Tusla’s role and how reports of concern will be dealt with are set out in Chapter 5 of the Guidance.

Enforcement of the Children First Act 2015 and Guidelines reporting obligations

The Children First Act 2015 does not impose criminal sanctions on persons who fail to make a report to Tusla.  However, there may be potential consequences if, after an investigation, it emerges that you did not make a mandated report and a child was subsequently left at risk or harmed.  It is open to Tusla to make a complaint about you to the Medical Council and / or to report you to the National Vetting Bureau of An Garda Síochána.

Protection for mandated persons making a report

The Protections for Persons Reporting Child Abuse Act 1998 will protect you if you make a report of suspected child abuse to designated officers in Tusla, the HSE or An Garda Síochána and it proves to be unfounded. This protection only applies to reports made reasonably and in good faith. The defence of qualified privilege may also be available in certain circumstances.

2. MANDATORY ASSISTANCE

In some instances, Tusla may need more information from the person who reported a concern.  The more detailed a report you make to begin with, the less likely you are to be contacted for supplemental information.  It would be usual practice for you to continue to engage with the Tusla social work team as necessary to assist in protecting the child.  You may be asked to provide any necessary and proportionate assistance to Tusla.

You must comply with a request for assistance from Tusla, regardless of whether you  made the initial report which led to Tusla’s involvement or not. Mandated assistance might consist of giving information verbally or in writing, preparing a report or attending a meeting.

Data Protection legislation does not prevent you sharing information on a reasonable and proportionate basis with Tusla for the purpose of child protection.  Under section 16(3) of the Children First Act 2015, you are also protected from civil liability for sharing information with Tusla at its request.

Tusla is also permitted to share proportionate information with you, as necessary.  You are not at liberty to share any information obtained from Tusla in this way, with any third parties.  If you feel you need to share information obtained this way with a third party, you must contact Tusla first and obtain written authorisation to proceed.   

Exemptions from requirement to report

a) Consensual underage sexual activity

If you have reasonable grounds to suspect that a child has been, is being, or is at risk of being sexually abused, then you must report this to Tulsa under the Children First Act 2015. Sexual abuse to be reported is set out in Schedule 3 of the Children First Act 2015.

Chapter 3 sets out an exemption from the requirement to report in relation to certain underage consensual sexual activity between teenagers.  The Guidelines provide that

“If you are satisfied that all of the following criteria are met, you are not required to make a report to Tusla: 

  • The young person(s) concerned are between 15 and 17 years old;
  • The age difference between them is not more than 24 months;
  • There is no material difference in their maturity or capacity to consent;
  • The relationship between the people engaged in the sexual activity does not involve intimidation or exploitation of either person
  • The young person concerned states clearly that they do not want any information about the activity to be disclosed to Tusla

In effect, this means that it all of the above conditions are met, you as a mandated person do not have to report consensual sexual activity between older teenagers as sexual abuse to Tusla”

These criteria are also set out under Section 14(3) of the Children First Act 2015 and will become statutory requirements on 11 December 2017.

The Guidelines are a move away from the idea of Gillick competence and the assessment of ‘mature minors’, which has been favoured in the UK and with which Irish GPs may be familiar, but which was never tested in the Irish Courts.

In Medisec’s view, the Guidelines leave no scope for ambiguity regarding sexual activity involving under 15’s.  This must be reported to Tusla. This is the logical consequence of the detailed exemption which is clearly limited to minors falling within the 15-17 age bracket.

In trying to determine whether the 15-17 exemption on reporting applies, you should take into account and record information regarding:

  • the young person’s behaviour, maturity and understanding as well as their family, home and living circumstances
  • differences in age, maturity or power between sexual partners
  • any apparent emotional or psychological pressure to keep the relationship a secret
  • the use of drugs or alcohol which might influence the young person
  • any other factors which might render the young person vulnerable.

You need to ask probing questions and if you are doubtful about the information obtained, such that you are not sure all the criteria are met, you are required to make a report to Tusla.

b) Concerns developed outside professional duties

Your legal obligation to report under the Act applies only to information acquired in the course of your professional work or employment.  It does not apply to information obtained elsewhere or through a personal rather than professional relationship.

Although the legal obligation to report only arises to information obtained through professional duties, you should comply with the Guidance and report all reasonable concerns to Tusla. 

You will already be aware that other legislative provisions may be relevant and you should continue to bear them in mind.

  1. Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012

    It is a criminal offence for any person who has information about a serious offence against a child, which may result in charges or prosecution, to fail to report this to An Garda Síochána. 

  2. Criminal Justice Act 2006

    It is a criminal an offence to have authority or control over a child or an abuser and to intentionally or recklessly endanger a child by:

    • Causing or permitting a child to be placed or left in a situation that creates a substantial risk to the child of being a victim of serious harm or sexual abuse; or
    • Failing to take reasonable steps to protect a child from such a risk while knowing the child is in such a situation.

  3. Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012

    It is a criminal offence to know or believe that serious offence, including a sexual offence against a person aged under 18 (or against a vulnerable person) has been committed and to have information which would help arrest, prosecute or convict the perpetrator and to fail without reasonable excuse to pass that information to An Garda Síochána as soon as reasonably practicable.

The contents of this article are indicative of current developments and contain guidance on general medico legal queries. It does not constitute and should not be relied upon as definitive legal, clinical or other advice and if you have any specific queries, please contact Medisec for advice. This article appeared originally in our Winter 2017 newsletter which can be found here

 


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