Special Report: ‘We all like to jump on the scandals... but we don’t often hear the good stories’

Special Report: ‘We all like to jump on the scandals... but we don’t often hear the good stories’

The new special rapporteur on child protection intends to speak his mind, he tells Conall Ó'Fátharta.

Children’s rights advocates likely took a sharp intake of breath when it was announced that Dr Geoffrey Shannon would not be continuing as special rapporteur on child protection earlier this summer.

However, they definitely exhaled a long sigh of relief when they heard his successor was going to be the director of UCC’s Child Care Law Clinic, Dr Conor O’Mahony.

A regular contributor to debate and analysis in national media, he is known for his straight-talking and has been an outspoken critic of the State’s treatment of survivors of child sex abuse.

Just last week, he described a further delay with the scheme to provide redress to survivors of abuse in primary schools as illustrative of the Government’s inadequate response to its legal obligations.

It came as an updated action plan on the State’s progress in implementing a landmark ruling on redress for survivors of sexual abuse in primary schools prior to 1992, due to have been submitted on September 30, was delayed until it was finally published on October 14.

Mr O’Mahony has previously spoken out on issues affecting adopted people, labelling a view put forward in the past by the government that a referendum may be required to give adopted people full access to their records and birth information as an opinion that does “not survive scrutiny”.

Speaking over a coffee in UCC, he stressed that he would continue to speak his mind where he felt the evidence supported his argument.

“My focus is to give considered, evidence-based recommendations and commentary and if that happens to be critical and if the evidence justifies a critical commentary then that’s what I’ll give.

"But, at the same time, where there is good work being done, I will flag that too. There are a lot of people who work in the sector who work very hard and are doing their best. I think it’s a space where people rarely get credit for good work.

“We all like to jump on the scandals and it’s appropriate to highlight those where they happen, but we don’t often hear the good stories and where the good stories are there to be told, I will be able to share those too,” he said.

It’s clear that the lawyer is relishing the challenge and opportunity presented by the role of special rapporteur. While he is loath to speak in terms of “priorities” for his three-year term — pointing out that “when it comes to child protection it’s all important” — he pointed to three areas of focus: The review of the Child Care Act, issues around voluntary care orders, and how retrospective cases of child abuse are handled.

In terms of the Child Care Act, Mr O’Mahony described the review of the Child Care Act ongoing within the Department of Children and Youth Affairs as vitally important.

Obviously, that is the core piece of legislation on child protection in this country setting out Tusla’s obligations to detect and intervene in cases of abuse and neglect and so on. The review of the Act is a really important legal process. It’s a 1991 Act so it’s nearly 30 years old.

"There won’t be a big review like this for another period of time so it’s really important that we make the most of this opportunity and get it right so I’ll be really particularly keeping a close eye on that and engaging with that process,” he said.

Mr O’Mahony pointed out that, while the fundamentals of the legislation “are actually pretty good”, there are certain areas “which do need attention”.

“We passed a constitutional amendment in 2012 making it obligatory for courts to ascertain the views of children but we haven’t yet legislated to give effect to that so there’s reforms in train around the guardian at litem and things like that. But it’s really important that we get that right because that is a constitutional obligation and one which isn’t currently being met.

Dr Conor O’Mahony Senior: Ireland has ended up with this halfway house whereby we say in the statute it’s mandatory to report but we don’t introduce penalties for non-reporting.
Dr Conor O’Mahony Senior: Ireland has ended up with this halfway house whereby we say in the statute it’s mandatory to report but we don’t introduce penalties for non-reporting.

"We need to ensure that the Act is reformed in such a way that the constitutional obligations are given full effect so that, in every case where children are capable of forming a relevant view, that view is ascertained by the court. It’s only after you ascertain that view that you then ascribe what weight to give to it based on age and maturity,” he said.

The director of UCC’s Child Care Law Clinic is also keen to look at voluntary care arrangements. He pointed out that most children enter the care system on voluntary care arrangements (where parents consent) than as a result of court order and that, in these arrangements, there are far fewer legal protections and safeguards.

“If your child is taken into care by court order, as a parent you would have had legal advice, you would have had the benefit of an independent judge overseeing that decision, the child may have had a guardian at litem to represent their views and report on their best interests.

"There may be reviews independently by the court. None of that exists in the voluntary care space.

"You have parents signing forms without legal advice, where there may be questions about their capacity to understand the legal implications of what they are signing up to.

There’s no guardian at lite for the child, there’s no legal mechanism for the child’s views to be sought or ascertained, no independent reviews outside of Tusla’s own internal 12-month review so that’s a very different looking space to the court proceedings and raises a lot of questions about whether children’s rights and parents rights are adequately safeguarded. We are looking at that in the UCC study now in detail.

The lack of an adequate legal framework for Tusla to deal with retrospective cases of abuse is also a major area the new special rapporteur wants to look at. These are cases where an adult makes an allegation about abuse that occurred as a child.

“Tusla, at present, has an obligation to investigate those issues to make findings as to whether the complaint is founded or unfounded and then, if it’s founded, to share information with third parties. But it’s doing all of that in a skeletal legal framework. It’s one line in the Child Care Act and it wasn’t written with that in mind.

"It was interpreted to have that effect in a High Court decision in 1998. So basically since then, Tusla has been trying to deal with this on shifting sands where they have to try and draft their own policy setting out how it deals with safeguarding, fair procedures and due process for the accused, right to a good name.

“How does it balance that with its child protection remit and then being judicially reviewed at every turn with unpredictable court decisions which are moving the goalposts on them all the time? They are between a rock and a hard place on this particular issue. They are in charge of performing a function and they are not being given the tools to do it.”

On the issue of the introduction of mandatory reporting, which came into force in December 2017, Mr O’Mahony said that, “on balance... it was the right call to introduce it”.

Under the system, professionals who deal with children, including teachers, nurses, and gardaí, are required to report any suspicions of child abuse to Tusla. The agency had expressed concern over the strain it would put on existing resources.

It’s an interesting one. Was it the right thing to do? It probably was given our particular history in this country. If you look at the Ryan report into the Louise O’Keeffe case and different things like that, the failure to pass information up the line was often at the root of a lot of those problems.

"At the same time, there’s a lot of international evidence around the possible difficulties associated with mandatory reporting if you don’t resource it properly.”

Mr O’Mahony specifically pointed to the experience of mandatory reporting in Australia which failed to put adequate resources in place to deal with a huge increase in referrals of abuse.

“So all you end up with then is a mountain of referrals and people working through referrals instead of the frontline work. It delays response times, essentially. And that’s a reasonable critique,” he said.

However, Mr O’ Mahony said that in Ireland, “we have ended up with this halfway house whereby we say in the statute that it’s mandatory to report but we don’t introduce any penalties for non-reporting.

“So is it mandatory reporting as understood in other jurisdictions? Maybe not. But maybe then, if we are saying there are also disadvantages to mandatory reporting, is that a reasonable compromise, that we get the symbolic message? You must report as it’s important without the scare factor of the criminal penalty. Is that a reasonable halfway house? On balance I think it was the right call to introduce it.”

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