Social workers concerned document tips the balance of rights in favour of sex abuse accused

A draft document from Tusla, the Child and Family Agency, outlining new Policy and Procedures for Responding to Allegations of Child Abuse and Neglect, has social workers up in arms, not least because of a proviso that could see abusers cross-examine their victims.

In today’s Irish Examiner, six concerned social workers dissect the draft document, which they feel will compromise them ethically, and may discourage victims of abuse from coming forward.

They spoke to Catherine Shanahan on condition of anonymity. 

CHILDREN FIRST

The first concern highlighted by social workers is what they describe as “an absence of the victim” in the new policy, which will apply to all cases of child abuse and neglect, not just sexual abuse.

While they recognise the alleged abuser’s right to fair procedure, they believe the document is “far too weighted” in his/her favour. They believe that, if they are forced to follow it to the letter, it compromises them ethically.

Ultimately, the social workers do not believe it is possible to comply with the new Tusla procedures and still put children first.

READ MORE: Abuse victims may be quizzed by abuser .  

Social Worker 1:

“Our social work training is to believe victims of abuse. Most victims of abuse that we meet would be children, and the training is always that you believe them, you support them, you let them tell their story.

“This [new Tusla document] is very different.

“This is challenging and really looking at the credibility or otherwise of their story, because of the pressure to offer due process to the alleged perpetrator.

“And while I would say an element of that is fair enough, the balance of rights seems far too weighted on the side of the alleged perpetrator in this policy.”

Social Worker 5:

“I think what the document completely missed, particularly in relation to retrospectives [where an adult discloses abuse that took place when that person was a child], is how complicated these cases actually are and, for a lot of people, we are maybe the first or second person that they have told a very deep-rooted story to.

“I’m doing a retrospective at the moment and the person who is making the allegations has named a considerable amount of others who were then children, who this person was a witness to being abused.

“Now, none of those other people have come forward and there’s an onus in the document whereby we corroborate information where we can, and in doing so, we are approaching those who, by not coming forward, are telling us that they are not ready to come forward, or they are afraid to come forward, and we are getting ‘back off, go away’. So it’s very complicated and, in trying to work within a framework [the Tusla document], which is a legal framework really, we are exposing people who are trying to tell a story, but who, in good faith, are trying to protect children now as well and help us do that... and we’ll be gone. We’ll have walked away at that point and they’ll be dealing with that carnage — and it will be carnage —and it doesn’t capture that, and I don’t think it understands that. The document sees that these are straightforward cases and they’re not. They’re corrupted with lots of other issues as well.”

Social Worker 1:

“There is no appreciation of the reality of the people that you meet who’ve had these experiences.

“I would have met people, maybe three times, at anonymised locations away from their home place, before they are even ready to tell me what has happened to them.

“Then maybe they don’t understand the process and they are confused about the implications for them, for their family — will this [their story] be all over the papers if they go to the gardaí?

“When you mention the guards to people, what they imagine is themselves in the stand defending themselves — so it’s just a very difficult process to try and bring someone through, and there is a lot of hand-holding.

“Equally, the perpetrators that you meet can have their own vulnerabilities as well in terms of mental health.

“So just the human side of it is very absent from the document and that’s what struck me.”

WHY THE NEED FOR THIS NEW POLICY?

Tusla says it come on foot of a number of court judgments where fair procedures were not followed and cases fell, key among them the Barr judgment and the O’Neill judgment.

The Barr judgment was delivered in a case dating back to 1997, where a father of three, against whom there were long-standing abuse allegations, enrolled on a childcare course which involved a placement in a children’s play centre. When the health board learned of this, it contacted Dublin VEC, which then excluded him from the placement. The disclosure and the exclusion were upheld by the High Court as being in line with the health board’s duties.

In his judgment, Mr Justice Barr set out a series of guidelines to assist in the conduct of investigations into child abuse allegations and ensure compliance with fair procedures, including that the HSE: (a) has a duty to take all reasonable steps to interview the alleged abuser; (b) must furnish the alleged abuser with notice of the allegations before such an interview is held; and (c) invite him/her to respond, while allowing reasonable time to make a defence.

These steps were to be followed before deciding on the seriousness of an allegation.

These guidelines, known as the Barr Principles, have guided social workers conducting investigations and have been described by Irish family law expert Kieran Walsh as “a compromise between the HSE’s obligation to protect children through a process of information management and the procedural protections afforded to accused persons by the rules of natural and constitutional justice”.

Social workers are concerned that their duty to protect the child is at odds with a child being cross-examined by an alleged abuser.

O’NEILL JUDGMENT

This case involved a teacher in a secondary school, about whom the health board received information about potential sexual abuse of a pupil in November 2001. There were significant delays in notifying gardaí and the accused and in providing full information to the school. The teacher was suspended but this was subsequently revoked. He declined to return to school while still under a cloud of suspicion. The health board was heavily criticised for its handling of the case, for poor investigative and collaborative processes, taking an approach that neither served to adequately protect children or “to preserve some semblance of administrative rights of the teacher”, says Mr Walsh.

The social workers say the new policy was formulated on the back of both of these judgments, but they believe legislation is required to underpin what is set out in Barr and O’Neill.

Social Worker 2:

“We’ve been advised that the only way to address that [the judgments] properly is through a change in legislation.

“What we fear is that this document has come in and that, instead of addressing it through the legislators and remedying the anomalies that are being created in those two judgments, this policy has come out instead, and what it is doing is fundamentally changing how social work works in this country, because it gives us a quazi-judicial function which hasn’t been our role to date.”

Bound up in this is the introduction of the terms “founded” and “unfounded” as a way of concluding on the findings of child protection enquiries. While the terms have been used in other jurisdictions, they have, until now, not been used here.

Instead, the words “conclusive” or “inconclusive” are used when adjudicating on child protection complaints. The new language, the social workers say, increases the burden of proof, from arriving at a conclusion based on the “balance of probability” which they have traditionally operated to, to one of “beyond reasonable doubt”. This, they believe, is driven by a need to keep matters out of the court — whereas in fact they feel it will have the reverse effect and lead to more litigation.

Social Worker 2:

“We have no forensic experience or training, so what this does is put something on social workers which potentially puts the social worker in a position where they may have to go into a court of law and say how they reached the conclusion or judgment in relation to this particular individual [alleged abuser], and any barrister or anysolicitor will tear them apart because the first thing that they ask is: ‘What’s your training in relation to this? What’s your expertise, what gives you the credibility to come in here and make this claim?’

“So we are being set up.” The same social worker said the introduction of the terms “founded” or “unfounded” “puts the onus on the social worker to say ‘this is now a founded allegation or an unfounded’. That basically brings in ‘is it proven or is it not proven?’ ”

Social Worker 2:

“Currently what we do, or what we were doing, was if there was a particular case that needed a forensic determination as to the risk levels posed by an alleged perpetrator, we would outsource that to [an agency] whose sole raison d’être is to do those things. They would then produce a report for court, they could go into court and be cross-examined, and their authenticity and their bone fides and their baseline is established, so they can speak authoritatively to the situation. We don’t have that experience.”

DELICATE BALANCING ACT

Adjudicating between the rights of the child and the rights of the alleged abuser is something social workers feel ill-equipped to do, particularly as, legally, they are bound to protect the child. In this respect, they have grave difficulty with a proviso in the new document, which leaves the way open for the alleged abuser to interview his/her alleged victim.

Under 24.1 (b) of the Tusla Policy and Procedures for Responding to Allegations of Child Abuse and Neglect, “an alleged abuser may request an opportunity to put questions to a person (for example, a complainant or a witness) about the allegations. A balance should be drawn between the right of the complainant, the legal obligations on the Child and Family Agency... and the need to afford fair procedures to the alleged abuser. If such a request is made, the social worker should discuss it with their line manager, and the particular circumstances of each individual case should be taken into account.”

Social Worker 2:

“There is no social worker that is ethically going to put themselves in the position where they are facilitating the cross-examination of a child by an alleged perpetrator when our job is to protect those children. It’s not going to happen.”

Initially it was thought the document would apply to retrospective cases only. But now social workers say it is to be applied equally across all cases.

Social workers claim this could, bizarrely, create a situation where a child abuser can interview his/her alleged victim.

They give an example of a five-year-old disclosing abuse by a nine-year-old, where the nine-year-old could potentially “cross-examine the five-year-old that made the complaint”.

(Social Worker 2): The instance of child-on-child abuse is considerable — the social workers say it accounts for a quarter of their cases. At any rate, they are unhappy with any suggestion that an alleged abuser would be permitted to interview an alleged victim, regardless of age.

Social Worker 3:

 

“It makes the alleged victim more vulnerable and exposes them, and not only exposes them emotionally, but actually can place them maybe at serious risk for their physical safety, depending on the accounts that are given, and I think that there is no understanding of the actual gravity and seriousness of the accounts that we hear.

“To think that they [the allegations] are then sent out in advance to the alleged perpetrator, who could be anybody, and can do with them whatever he/she wishes, so he/she can further abuse, or intimidate, or increase the risk to the alleged victim. And then they also may have the right to cross-examine.”

Social Worker 2:

“The social worker’s job is to protect the child, yet how can we possibly stand over seeing a child cross- examined by the alleged perpetrator? I mean, that is abuse in and of itself. I mean, the IRA was talking about that with Mairia Cahill and everyone was agog, and here we have it enshrined in a policy. It’s unbelievable.” (Belfast woman Mairia Cahill alleges she was raped at the age of 16 by a senior IRA figure and subsequently forced into a face-to-face meeting with her abuser.)

Social Worker 4:

“The gardaí aren’t happy about this either — they tell us it will make their ability to progress cases extremely difficult.”

KEEPING ALLEGED ABUSERS INFORMED

The policy says the alleged abuser should, “at the earliest stage”, be informed of the allegations and supplied with copies of documentation directly relevant to the allegation. Social workers are concerned this may interfere with any future criminal investigation.

Social Worker 1:

“Our practice would be if there is going to be a criminal investigation, to let the guards take the lead, and locally we’ve continued to do that because we have no interest in getting in the way of a criminal investigation.

“If someone [an alleged victim] is going to make a Garda statement, then I will hold back on hearing their account, let them make it to the guards first, let the guards meet the alleged perpetrator.

“Because if we meet the alleged perpetrator prior to the guards doing it, then from the guards’ perspective, they have everything, they can prepare their alibi, whatever it may be, they’re alerted.

“There is a provision there that you would liaise with the gardaí, but the onus still is that in a timely fashion, that there are no delays in meeting the alleged perpetrator. And I think technically, once we are aware of the information [alleged abuse], they [the alleged abuser] are entitled to be aware that we are aware of the information, so it’s just very difficult to manage at a practical level.”

TUSLA’S DEFENCE OF THE POLICY

The Child and Family Agency says the need for the new policy arose “from a number of court judgments [see above] and investigations from the Ombudsman where it was considered that fair procedures were not adequately followed and where cases subsequently had fallen”.

The agency says the policy has been formulated by Tusla “to ensure that social workers are aware of the duties placed on them by the legal system to ensure that fair procedures are followed in all investigations”.

The agency does not appear likely to dilute the document much, despite setting up a working group to consider it, which is due to report back “shortly”.

In a statement to the Irish Examiner, Tusla said it was “aware of the onerous nature of these obligations, but as they are required by legislation, Tusla is not in a position to modify requirements nor can the agency negotiate an alternative approach to investigations without jeopardising future court proceedings”.

Besides, Tusla points out, any person who is the subject of a complaint has a right to challenge the person making it.

“Part of the social work role is to ensure that this is done fairly and in the best interest of the child,” Tusla says. It claims its document “sets out the steps to be taken for a successful outcome that is not open to challenge” and “In this regard, it mitigates against processes being convoluted and ad hoc”.

Tusla also claims social workers were consulted during the drafting process.

CONCERNS NOT TAKEN ON BOARD

The social workers I interviewed strongly disputed that any of their views were taken on board when the policy was being formulated.

They say an earlier draft had a less legalistic format than its current frame, and that while they were invited to make submissions, they were neither “acknowledged nor listened to”.

It’s not unusual, they say, for policies to be “emailed out” with the expectation of implementation, but no additional training or resources.

Social Worker 2:

“This [document] was written by legal people, because the draft that we saw before the final draft came out was different: It was much more social-work oriented. I think this then went before solicitors and this is the document that came, because it is completely different, radically, to the penultimate version and I think it’s written by lawyers and has no understanding of the kind of issues we have been talking about.”

Social Worker 4:

“I suppose the important thing is that the voice of the practitioner or the social worker was not listened to at all. And then it was foisted upon a staff complement that even prior to this policy, didn’t have the resources to do the work it was supposed to be doing.

“All of this has been ignored, so it’s placing the social worker in an extremely vulnerable position, implementing a document which they don’t believe in; implementing a document that they are unable to implement with resources that are very scant.”

Social Worker 2:

“Where you have a procedure which is problematic for social workers, is problematic for our sister agency the gardaí, who investigate these matters, where we’ve had our own legal advice and other advice and where every single social worker in the country has written and said ‘this is wrong’ and you have the child protection agency of this State saying ‘You will do that’ and not paying a blind bit of notice — I mean there is something wrong, seriously wrong.”

Social Worker 3:

“What happens is policies are emailed out and they are meant to be implemented, that’s it. There is no training, nothing. It’s ‘there now, you are meant to implement it, get on with it’.”

Social Worker 1:

“And it’s only now, on foot of uproar, that this [working] group will be looking at how to roll out training, how to properly implement the policy. The obvious thing would have been to pilot it somewhere, to review it, to get feedback, to see how it worked in practice, anyone could tell you to do it that way. But it isn’t what happened — they rolled it out right across the country and that’s what we are left with then.”

SO WHERE DOES IT LEAVE SOCIAL WORKERS?

Extremely frustrated, they say, and unclear about (a) how to implement the policy and (b) how to meet its requirements while simultaneously managing existing workloads. They say that no additional resources have been made available to date to assist in implementation of the policy.

Even if the policy was fully resourced, they have a moral dilemma.

Social Worker 3:

“There are resource implications, which are due to both manpower and due to the skillbase, or the expertise which we don’t have, and there’s no plan to put that in place around training.

“There are also parts of this policy that we are able to implement and are implementing, but there are other parts we can’t do, irrespective of resources.

“We can’t do it professionally, morally, ethically because we can’t expose people in the way this policy expects us to because we will then be guilty of further traumatising these victims and that’s the big issue I think for us.”

Social Worker 2:

“We’ve put in business cases to get extra staff for support in doing this. We might look at certain training, but we all have to do that without any budget.

“We’re dependent on a lot of agency staff, and again if you have agency staff — you can’t give a case like that to agency staff because they are not going to be able to see it through.”

Social Worker 4:

“It’s often said that there are no vacancies, that nationally the complement of staff is there. That’s not acknowledging that the complement of staff is far too low anyway. The fact that you have your full complement doesn’t mean you have sufficient staff.”

Social Worker 6:

“Our reports [referrals of child abuse and neglect] are up about 35% on last year. And that’s just in a year.

“We are getting approximately 70 new referrals a week. Sometimes we get up to 100 per week — and it’s the same complement of staff that we had 10 years ago.”

Social Worker 2:

“We’re also circumscribed by what’s know as business processes, so there has to be screening, initial assessment, further assessment, comprehensive assessment, they are all timelined.

“Social workers now are spending 20-25% of their time at computers typing up notes, having to keep all this stuff lined up and less and less time face-to-face. And when they are face-to-face they have to rush things because they have to rush to the next case, they have to do this, they have to do that, and yet there’s no cavalry coming over the hill in terms of reinforcements.

“The other point is that HIQA [the health watchdog] comes in and inspects us.

“They’ll come in and inspect us against that [new] policy. So they might come in and randomly pick cases.

“And say if you were three weeks delayed in following the policy because you didn’t meet so and so, and somebody says, ‘I made a complaint X amount of months ago and I’m still here six months later,’ like, we get hammered for that. Yet not one single penny was put into this. There was no cognisance given whatsoever to the level of forensic training that would be required to give effect to this policy.”

Social Worker 4:

“We’ve tried to apply principles of it [the new policy], we’ve tried to take on some of the practice of it to see how far we can go. It’s not all terribly bad, but put it all together and it’s terribly bad.

“We’ve had experiences where the process is so abusive for lots of reasons, including we are not giving people a proper hearing; victims are coming into us at disjointed ways; we are cancelling because we have to go to court on something else, all those things, they don’t inspire confidence for the public.

“And I would foresee that to be an issue. It’s too slow: — you can imagine an alleged perpetrator using that then as an issue later, that due process wasn’t followed and it wasn’t timely or whatever, and that it was unfair to them and they were prejudiced by it.”

One social worker who has undergone some specialist training in relation to the new policy believes that, with proper training, “you will actually come to a point where you are protecting children”.

However “without training, you might go through the motions of this policy, and at the end of the day, you’ll have ticked all the boxes of the policy, but you won’t protect any child because you won’t analyse the information adequately to recognise the risk”.

One In Four spokeswoman Maeve Lewis has said her organisation would urge clients to withdraw from the proposed process.

JURISDICTION

Copies of the new policy and procedures are also being made available to an Garda Síochána and “key external agency staff, including funded and non-funded organisations involved in assisting the Child and Family Agency in the assessment of child abuse and neglect”. The social workers say the feedback they have from gardaí is negative.

Organisations such as One in Four also have reservations, particularly around the potential for an alleged abuser to interview the alleged victim.

Spokeswoman Maeve Lewis told the Irish Examiner it was “absolutely utterly unacceptable that someone who was the victim of sexual abuse could be subjected to interrogation by the alleged abuser”.

She said One in Four would even “urge our clients to withdraw from any process where this could occur — it would cause more harm”.

“Obviously an alleged perpetrator has the right to due process and to defend their good name... but it would be for a social worker or another trained professional to interrogate the victim, based on their training,” said Ms Lewis.

“It should never be the case that the alleged abuser be allowed interrogate the victim, where the dynamics of the original abuse would be replicated.

“If a child was to be subjected to such interrogation, it would be unthinkable, in a civilised society.”

The social workers envisage difficulties implementing the new policy while trying to co-ordinate with other jurisdictions. Cases often feature an alleged abuser residing in one jurisdiction and the alleged victim in another. They also envisage difficulties in expecting external bodies to go along with it.

Social Worker 2:

“I’m not sure anyway how a document in this jurisdiction can inform practice vis-à-vis another jurisdiction.

“Similarly if, in a case where there might be an abuse allegation in a school where teachers are involved — we can say ‘this is the Tusla policy’, but just because it’s Tusla policy doesn’t mean the teachers’ union has adopted it. It has no other status or standing other than how it affects social workers doing their work — no-one else has to buy into it.

“They can say ‘that’s your policy, that’s your business, but we’re not mandated to follow it’.

“So again, if this was to apply, you’d need a standard that everyone in the country subscribes to and works in harmony or in collaboration [with], rather than all the onus which seems to be devolving now onto one particular discipline which was never trained for it; which hasn’t been resourced for it; which has had it superimposed upon everything else that it’s doing without a ‘by your leave’.

“And everyone then is supposed to pick it up and the agency is saying ‘well, we are telling you to go on ahead and do it’. This is where the impasse is.

“What we are saying is, if we do do that, then we potentially set our workers up for disaster in the courts. We’re giving effect to a policy that we fundamentally have serious disagreement with, we’re giving effect to a policy that doesn’t enshrine any social work principles that we are aware of, and that is purely a legalistic document. It’s a document to solve a problem that is not of our making. So this is where the standoff is.”

Social Worker 5:

“There is a very fundamental issue here. This document is a very time-consuming piece of work when you start to apply it, even to your routine type of case.

“And what we are finding is we do not have the capacity to apply it to the letter of the law, so what we can easily predict, and we are experiencing it, we will fall on the document ourselves, and that in itself will open up litigation, where we won’t have followed our own procedure because we don’t have the capacity to follow it.”

VICTIMS WILL BE DETERRED FROM COMING FORWARD

Social workers believe the processes they are required to follow in implementing the policy will actually deter people from disclosing abuse allegations — because there are so many procedures to go through to ensure the rights of the alleged abuser are protected. They also believe the policy is headed towards the industrial relations process.

Social Worker 5:

“My worry is that Ireland is coming out of a phase where there has been scandal after scandal, institutional abuse after institutional abuse, and people are finally, even in the latter stages of their lives, coming forward and making reports and going through therapeutic processes that would have been unheard of even 10 years ago.

“And I’ve a real fear that, after getting to this point, people will not engage in therapeutic processes.

“They will now carry those secrets and try and manage them themselves because the implications are too great and I think that could happen quite quickly.”

Social Worker 6:

“They [the victims] step out of that therapeutic process, but we are left with the name maybe of an alleged perpetrator with no victim who’s willing to give any information — because they know the process that’s going to happen. Why would you, when this is what you could be subjected to?”

Social Worker 1:

“That’s what you feel when you read it [the document], that they are not interested in people coming forward; they are not interested in really protecting children; they are just interested in staying out of the courts.

“People talk about social workers, how they’re viewed by the general populace, how they are going to, y’know, ‘parachute in and take our children into care’.

“But there’s a danger here that social workers are being put in the role of social police. That’s not our role, that’s not what we’re trained for, that’s not what we want to do.”

Social Worker 4:

“It seems this document... was kind of a legal kneejerk reaction to cases of litigation.

“In its current form and the way it’s currently not resourced, the agency actually is open to more litigation because it’s more possible to find more loopholes now then before.

“It’s redefining the role of the child protection social worker because that’s where the baby has landed.”

PREDICTION

Social workers say the policy document “will go into industrial relations issues before it’s resolved and it’s a problem that doesn’t need to be there”.

While one says that, with the proper training “you will actually come to a point where you are protecting children”, the opposite will happen without training.

Social Worker 4:

“You might go through the motions of this policy, and at the end of the day, you’ll have ticked all the boxes of the policy, but you won’t protect any child because you won’t analyse the information adequately to recognise the risk.”

So would they subscribe to the policy with proper training? The answer is a unanimous “no”.

Social Worker 3:

“The point is there’s a resource issue, but there’s also a professional issue, in terms of not being able to implement it, because we would potentially expose alleged victims to further trauma.”

Board’s duty

The legal framework of child care and protection in Ireland is provided by the Child Care Act 1991. Section 3 (1) of the Act imposes a duty on health boards (now the Child and Family Agency, Tusla) to promote the welfare of children who are not receiving adequate care and protection. In the performance of its function, it is bound to “regard the welfare of the child as the first and paramount consideration”.

READ MORE: Abuse victims may be quizzed by abuser .  

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