The Special Rapporteur on Child Protection has recommended expanding the role of the National Vetting Bureau and using data protection laws so Tusla can assess complaints of child sexual abuse without risking re-traumatising survivors because of the need to inform an alleged perpetrator that an allegation has been made against them.
The recommendations are included in the first report as Rapporteur of Dr Conor O'Mahony, which also argues that the current law - Section 3 of the Child Care Act 1991 - covering this area "contains more gaps than detail", creating a "legislative void" and so "it has been left to Tusla to fill in the blanks in its policy documents".
Dr O'Mahony, a senior law lecturer at University College Cork, also said that Tusla's possible remedy - the Child Abuse Substantiation Procedure - was itself flawed and its approach to personal data "a recipe for inconsistent practice".
The issue of what Dr O'Mahony describes as the "delicate balancing act" between dealing with the needs of someone making a complaint of child sexual abuse, the possibility that the alleged perpetrator may pose a risk to children now, and the rights of that person to know an allegation has been made against them, has led to criticism from support organisations that survivors may face being re-traumatised by coming forward or even the future possibility of being cross-examined in some way by the alleged perpetrator.
In his first report since succeeding Dr Geoffrey Shannon in the government-appointed role, Dr O'Mahony said the Child Care Act 1991 should be amended.
In the report, brought before Cabinet, Dr O'Mahony writes of the "absence of clear guidance on balance to be struck between due process rights of the PSAA (person subject to allegations of abuse) and the right of children to be protected from harm".
"All of this crucial detail has had to be filled in “on the job” by Tusla in its policy documents and by the courts in case law," he says, adding: "Tusla is left in a position where it has to anticipate or second-guess what the courts might or might not decide in the future".
Slightly expanding the role of the National Vetting Bureau, he writes, could provide "a robust statutory basis for the balance of rights between PSAA, the complainant and other children who may be at risk of abuse", its independence of Gardaí and Tusla meaning it could make "a holistic assessment of whether a disclosure to a third party is warranted".
It would also allow for the finding of a “bona fide concern” which Dr O'Mahony said was more flexible than the current status of a complaint being either "founded" or "unfounded".
It would also remove the necessity for Tusla to “stress test” the complaint at assessment stage, as proposed in CASP.
The report also outlines a potential advantage of using Section 94 of the Data Protection Act - "if notifying the PSAA that personal data has been obtained in respect of them might jeopardise the life, safety or well-being of the complainant, Tusla would be empowered to refrain from notifying the PSAA".
"Tusla should work with the Data Protection Commission with a view to establishing whether its policies governing the investigation of complaints of abuse could, as a means of preventing the commission of future crimes, be drafted in line with the requirements of the Law Enforcement Directive and Part 5 of the Data Protection Act 2018 rather than the GDPR."
He writes that changes made through the Oireachtas would strengthen "the presumption of constitutionality" and that other changes that would follow would ease the burden on Tusla, which currently finds itself charged with an investigative function it isn't equipped to carry out.
Dr O'Mahony writes that there are some limitations to these options, but other ways could be found to deal with those cases, including to legislate for a separate, independent decision-maker or body to determine whether to share information in cases involving identified children at potential future risk outside of “relevant organisations”.