By Alice Steen, Knowledge Manager
Child and vulnerable adult protection issues are increasingly at the forefront of media and government discussions. The government is in the process of enacting a suite of legislation to put in place measures to help better protect children (those under the age of 18) and vulnerable adults from abuse.
The two most recent pieces of legislation are discussed below. It is vital that employers, organisations and various bodies are aware of their responsibilities under these acts. Employees need to be trained and made aware of the legislation.
Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012
This act came into force on 1st August 2012. It is now an offence to withhold information on certain offences against children and vulnerable adults from the Garda Síochána.
The ‘certain offences’ against children and vulnerable adults are set out in the Act and include offences such as murder, assault, false imprisonment, rape, sexual assault and incest. An offence is committed when a person who knows or believes that one or more of these offences has been committed by another person against a child or vulnerable adult, and the person has information which they know or believe might be of material assistance in securing apprehension, prosecution or conviction of that other person for that offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.
The offence applies to a person acquiring information after the passing of the Act on 18th July 2012 and it does not apply to the victim. The offence exists even if the information acquired is about an offence which took place prior to the Act being enacted, and even if the child or vulnerable adult is no longer a child or vulnerable adult.
There are various defences to the offence. They are to do with the circumstances where the child or vulnerable adult made the person acquiring the information aware of their wish for the Garda Síochána not to be informed, or when certain persons or certain professionals hold the reasonable view that the Garda Síochána should not be informed. These defences are subject to various factors however and the Act and/or a solicitor should be consulted on all of the defences and the exact details thereof.
The offences are punishable by fine and/or up to fourteen years imprisonment.
All employers and organisations dealing with children and/or vulnerable adults should ensure that their staff are trained in respect of the offences and defences together with having clear internal policies and procedures in place.
National Vetting Bureau (Children and Vulnerable Persons) Act 2012
This Act was enacted on 26th December 2012 however it has not yet been brought into force. The Minister for Justice and Equality is currently in consultation with other government departments in relation to a commencement date for the Act.
The current Garda Vetting system allows certain organisations to request vetting from the Garda Central Vetting Unit on prospective or actual employees who will be working unsupervised with children or vulnerable adults. The Garda will provide any relevant information (such as in respect of any relevant allegations, reports, charges or offences) to the organisation. The organisation must then determine themselves if the person is suitable for such employment.
Under the new Act a National Vetting Bureau (of the Garda Síochána) will be set up to replace the current Garda Central Vetting Unit. The Bureau will essentially be the current Unit under a new name and under a statutory regime and regulation. The Bureau is tasked with establishing a database system. The database will contain a register of:-
• Relevant organisations. Relevant organisations are specified in the Act but essentially includes organisations that facilitate people coming into contact with children and vulnerable adults through employment, provision of services and training/schooling and undertaking relevant work.
• Register of specified information. This includes information regarding bona fide concerns that a person may harm a child or vulnerable person. This information will come from Garda Síochána and from organisations specified in the act, such as the HSE and Teaching Council, who will be obliged to notify specified information to the Bureau.
• Register of vetted persons.
The act imposes obligations on certain relevant organisations to:-
• Register with the Bureau. Current registered organisations will continue to be deemed to be registered under the new Act and thereafter other organisations must apply to be registered.
• Notify specified information to the Bureau which includes bona fide concerns that the person may harm a child or vulnerable person. Organisations may only do so after an investigation, inquiry or regulatory process regarding those bona fide concerns.
• Apply for vetting for persons performing relevant work involving children and vulnerable adults. The organisation will only receive information which the Chief Bureau Officer decides to provide after assessing any information on the register (rather than all information held being disclosed as under the current system). The Bureau must inform the person being vetted of all the information and give them the opportunity to make submissions, inform them of the decision regarding whether to disclose and there is a right to appeal prior to any disclosure. Once disclosed, the organisation may then use the information to determine the suitability of the person for the relevant work or activities.
There are provisions regarding re-vetting and retrospective vetting. Compliance officers are to be appointed.
The Act contains various offences in respect of registration of relevant organisations, applying for vetting and relevant organisations notifying the Bureau of bona fide concerns about certain people in relation to harm to children and vulnerable adults. There are also offences in respect of re-vetting, retrospective vetting, obstruction of compliance officers, disclosure of vetting information and falsification of vetting disclosures.
Penalties include fines of up to €10,000 and/or imprisonment of up to five years.
The full Act should be consulted, along with legal advice, for further detailed information of the Act, Bureau, vetting process, obligations and offences. Organisations and employers should ensure they obtain a full understanding of the Act prior to it coming into force. Internal systems, procedures and training should be put in place.
Further information on both of the Acts and general advice in relation to working with children and vulnerable adults can be obtained from Harry Fehily, Managing Partner, Public Administrative Law Unit.
It is an offence to withhold information on certain offences against children and vulnerable adults from the Garda Síochána under the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012.
A National Vetting Bureau (of the Garda Síochána) will be set up once the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 comes into force.
All employers and organisations dealing with children and/or vulnerable adults should ensure that their staff are trained in respect of both Acts and should put in place clear internal policies and procedures.