SESSION 2002/2003

COMMITTEE FOR HEALTH, SOCIAL SERVICES AND PUBLIC SAFETY

Protection of Children and
Vulnerable Adults Bill
(NIA Bill 22/01) - Evidence

MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE
AND WRITTEN SUBMISSIONS

Ordered by The Committee for Health, Social Services and Public Safety to be printed 9 October 2002
Report: E3/02 (Committee for Health, Social Services and Public Safety)

The Committee for Health, Social Services and Public Safety is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Standing Order No.46 of the Northern Ireland Assembly. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Health, Social Services and Public Safety, and has a role in the initiation of legislation.

The Committee has the power to:

• consider and advise on departmental budgets and annual plans in the context of the overall budget allocation;
• approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
• call for persons and papers;
• initiate inquiries and make reports; and
• consider and advise on matters brought to the Committee by the Minister of Health, Social Services and Public Safety.

The Committee was established on 29 November 1999 with eleven members including a Chairman and Deputy Chairman, and a quorum of five.

The membership of the Committee is as follows:

• Dr Joe Hendron (Chairperson)
• Mr Tommy Gallagher (Deputy Chairperson)
• Ms Pauline Armitage
• Mr Paul Berry
• Rev Robert Coulter (replaced Mrs Joan Carson with effect from 11 September 2000)
• Mrs Annie Courtney (replaced Ms Carmel Hanna with effect from 21 January 2002)
• Mr John Kelly
• Mr Tom Hamilton (replaced Mr Alan McFarland with effect from 11 March 2002)
• Ms Monica McWilliams
• Ms Sue Ramsey
• Mrs Iris Robinson

The Health, Social Services and Public Safety Committee commenced the Committee Stage of the Protection of Children and Vulnerable Adults Bill on 09 September 2002. The Bill is intended to strengthen the existing arrangements under which checks are carried out as to the suitability of those seeking to work with children or adults with a learning disability. Through the introduction of a system of disqualifications and offences, it is intended that the legislation will help to improve the protection of children and vulnerable adults.

The Committee wrote to a wide range of relevant bodies to seek their views on the Bill. It received 27 written submissions and held seven oral evidence sessions. The Committee agreed on 09 October 2002 to publish the oral and written evidence at an early stage, in order to help inform the public of the wide range of very helpful views expressed.

The Northern Ireland Assembly and its statutory committees went into suspension from midnight on 14 October 2002, and it has not been possible to make further corrections to transcripts of oral evidence outstanding at that date. The publication is annotated accordingly to indicate where evidence has not been examined.

Minutes of Proceedings

Minutes of Evidence

List of Witnesses that gave Oral Evidence

Written Submissions

List of Organisations that provided Written Submissions

WEDNESDAY, 4 SEPTEMBER 2002 AT 2.00 PM
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Mr T Gallagher (Deputy Chairman)
Ms P Armitage
Mr P Berry
Mrs A Courtney
Rev R Coulter
Mr T Hamilton
Mr J Kelly
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr W Long (Executive Support)
Mr Chris Thomas (NHS Management Trainee)

Assembly Research Services: Dr Janice Thompson

Dr Thompson spoke to a briefing paper outlining the key provisions of the Bill, which include:

• Placing the Pre-Employment Consultancy Service Register onto a statutory basis.
• Requiring "child care organisations" to refer, to the DHSSPS, an individual who has been dismissed, transferred or suspended on the grounds of misconduct for harming a child or placing a child at risk of harm.
• Placing a similar duty on employment agencies, nursing agencies and employment businesses to refer those whom they have decided not to supply for work, or further work, in a "child care position".
• Establishing an appeal process for those who have been placed on the Register by the DHSSPS.
• Making it a requirement for a "child care organisation" to both, check the Register before offering employment, and where an individual is found to be on it, not to offer employment in a child care position.
• Facilitating other organisations such as sporting or uniformed organisations to carry out vetting and make referrals to the DHSSPS.
• A system of accreditation for organisations falling outside the legal definition of "child care organisation".
• Creating new "whistleblowing" procedures, for employees in child care organisations to use, if they become aware that the organisation is failing to carry out properly either pre-employment checks or referrals to the DHSSPS.
• Placing obligations on courts to impose "Disqualification Orders" on individuals charged or convicted of certain offences against children and establishing a criminal offence of a "disqualified person" knowingly applying for, offering, accepting or doing any work in a regulated position.
• The proposals for the protection of vulnerable adults are broadly similar to those for children: providers of care services, within both public and private healthcare settings, will be required to refer individuals for inclusion on a list, held by the DHSSPS, of those deemed unsuitable to work with vulnerable adults. The conditions for referral will be similar to those concerning work with children.

Some issues for consideration by the Committee in its scrutiny of the Bill include:

• The possibility that the checking role with regard to the PECS could transfer to the Criminal Records Office (CRO) in Northern Ireland, which has established links with the CRO in Scotland and the Criminal Records Bureau in England and Wales.
• Whether the Department will be able to access "enhanced criminal record certificates" (i.e. "soft" police intelligence) in addition to criminal records.
• The argument by the NI Human Rights Commission that the Bill creates a two-tier level of protection for children by making a distinction between child care organisations and other organisations, in contravention of the state’s duty of protection under international law.
• The conditions associated with applications to the Social Care Tribunal – for example, the nature of the offence that caused the person to be listed may be of relevance to the minimum time period before an application can be made to the Tribunal. There is also the question of whether the remit of the Tribunal could be extended to hear appeals from organisations that have referred individuals for inclusion on the register, which have been refused by the DHSSPS.
• The Department "may" provide for accreditation, but there might be an argument for placing this proposal on a firmer footing in the primary legislation; this scheme is also restricted to the protection of children but may have relevance to the protection of vulnerable adults involved in groups run by voluntary organisations.
• Further clarification may be sought on how the Department will deal with anonymous information and the reason why the Bill does not include a "whistleblowing" Clause in respect of vulnerable adults.
• The broad definition of "vulnerable adult" is an area of concern (comparable legislation has been delayed in England and Wales because of problems with this definition).
• The question of whether certain offences against children should mean disqualification regardless of the sentence, or when prosecution fails, or offenders are placed on probation. The issue of disqualification does not extend to vulnerable adults.
• Concerns have been expressed about the lack of comparable vetting arrangements in the Republic of Ireland.
• Resource implications – will checks on volunteers be supplied free of charge?

Departmental Officials: Mr John Clarke
Ms Eilís McDaniel

Mr Clarke gave a brief overview of the purpose and provisions of the Bill, which was followed by a brief question-and-answer session. The proceedings are recorded separately in verbatim minutes of evidence.

Agreed: The Clerk will make arrangements for the Northern Ireland Office to be invited to give oral evidence in relation to Part V of the Police Act, which has yet to be enacted in Northern Ireland.

DR J HENDRON
Committee Chairman

WEDNESDAY, 11 SEPTEMBER 2002 at 1.30 pm
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Mr J Kelly
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson

Apologies: Rev R Coulter
Mrs A Courtney
Mr T Gallagher (Deputy Chairman)

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr B Greene (Administrative Support)
Mr M Norman (Administrative Support)
Mr Chris Thomas (NHS Management Trainee)

NSPCC: Mr Ian Elliott
Mr Colin Reid

Mr Elliott spoke to a briefing paper, which posed a number of questions about the policy intent of the Bill, as well as some technical queries. This was followed by a question-and-answer session. The entire proceedings are reported separately in verbatim minutes of evidence. The main issues raised are summarised as follows:

• The need to ensure that accreditation of voluntary organisations is supported by other government departments.
• A recommendation to waive the imposition of fees for smaller groups dependent on the use of volunteers both for accreditation and in access to the Register (as announced by the Home Office and Scottish Executive in similar legislation).
• The need for adequate all-island systems of suitability checking and how this is being taken forward with the Department of Health and Children in the Republic of Ireland.
• A recommendation for the establishment of a small reference group with expertise to assist the Department in examining potential individuals for listing against the criteria to be used under clause.
• A warm welcome for the development of a PECS awareness group to provide information to parents.
• There is an urgent need to alert and educate the public about the limits of the Bill. For example, it does not cover self-employed entertainers or non-registered child minders employed in parents’ own homes.
• A recommendation for a minor amendment to clause 17 to allow organisations to whistleblow on other bodies when they are aware that the requirements in clause 2 are not being fulfilled.
• Recommendation to seek the urgent enactment of Part V of the Police Act 1997, which allows for the provision of "soft" police intelligence in an enhanced criminal record check, which is required for work with children.

Mr Reid pointed out that the absence of a consultancy index in ROI is a major flaw in the system. Another problem is that the Criminal Record Bureau in England is not checking the Department’s list and so is not implementing fully the legislation across the UK.

Agreed: The Chairman will write to OFMDFM to request that the issue of cross-jurisdictional vetting in relation to work with children be taken up with the British-Irish Council.

Ms Caul briefed the Committee on the main issues for the Children’s Law Centre arising from the Bill. These included:

• The importance of proactive implementation of any accreditation scheme.
• The raising of public awareness.
• The need for adequate all-island systems of checking.
• A recommendation that, through a wider definition of "childcare organisation", all groups that have regular contact with children be obliged to carry out checks. This should include institutions within the criminal justice system.
• A recommendation that the definition of "childcare position" be widened to include reference to children in juvenile justice centres and those working with them.
• The need for clarification as to reason for the exclusion in clause 29 (4) of children in respect of children in employment.
• Recommend that clause 29 (1) ( c ) is amended to include the words "advising and counselling".
• Recommend that accreditation be a mandatory requirement for groups that have post-holders who are in regular contact with children.
• It is important to have further consultation about any further regulations by the Dept of Education, including the respective standards of proof that exist between the Departments.

The independent schools do not appear to be covered by the Bill or the education regulations. (In response to a query by Ms McWilliams, Ms Caul undertook to ascertain whether amendments were put down in relation to this matter when similar legislation was being passed in England.) Non teaching staff in further education colleges may not be currently covered.

• Part V of the Police Act and the establishment of a Criminal Records Bureau should be expedited.

DR J HENDRON
Committee Chairman

WEDNESDAY, 18 SEPTEMBER 2002 at 2.00 pm
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Mrs A Courtney
Rev R Coulter
Mr J Kelly
Ms M McWilliams
Ms S Ramsey

Apologies: Mr T Gallagher (Deputy Chairman)
Mrs I Robinson

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr B Greene (Administrative Support)
Mr M Norman (Administrative Support)
Mr C Thomas (NHS Management Trainee)

Witnesses: Mr Brian McCaughey
Mr Paul Doran
Ms Val Owens

The witnesses gave a brief presentation on the relevance and importance of the Bill to the Probation Board for Northern Ireland. The organisation listed five main issues arising from the Bill, which are summarised as follows:

• There is confusion among the public about the PECS register. A public information campaign is necessary to provide clear guidance on the Register and who can access it. The Board welcomes the establishment of the PECS Awareness Group in this regard. There needs to be an overarching public safety strategy to highlight parents’ responsibility for the safety of children.
• Only those convicted of an offence that leads to a sentence of 12 months or more can be considered for disqualification orders. The Probation Board supervises people who may never have gone to prison and may assess them as being still a risk to the public. The Board believes that the reference in clause 23 (1) (a) to a prison sentence of 12 months or more should extend to community sentences. The protection and welfare of the child is paramount and should override everything else.
• Criminal and court records should clearly identify if the victim was a young person or a vulnerable adult, for example, in a case of abduction or kidnapping.
• Concern at the large unregulated area of children working with children. One of the unintended consequences of the legislation might be to encourage people to go into that area. It is important that agencies representing people working in such areas as private tutoring can apply for accreditation.
• There needs to be parity of safeguards on a cross-border basis, as there are concerns about the current vetting arrangements in the Republic of Ireland, where there is not an equivalent to PECS.

Ms McWilliams recommended that consideration be given to suggesting an amendment to clauses 21 and 22 (on disqualifications) by way of strengthening the provision of the court to make a disqualification order.

The entire proceedings are recorded separately in verbatim minutes of evidence.

Witness: Mrs Maggie Smyth

Mrs Smyth gave a brief presentation on the perceived gaps in the provisions of the Bill in relation to the arrangements for carrying out background checks on persons serving with the Armed Forces and their families.

• Mrs Smyth emphasized the importance of educating the public of the facility to access background details of Armed Forces personnel and their families through SSAFA Forces Help. She undertook to write to the Chief Executives of the HSS Boards with details of the services available by SSAFA Forces Help.
• Gaps in provision may occur when an individual serving overseas is tried but not convicted by Courts Martial of an offence against a child, as the records and any "soft" information may not be passed on. Mrs Smyth will write to the Committee to clarify the position in relation to relevant information that can be made available from Courts Martial.

Agreed: The Clerk will write to invite the Police Service of Northern Ireland Superintendent who is responsible for child abuse investigation to request evidence in relation to the implications of the extension of Part V of the Police Act 1997 to Northern Ireland. The Clerk will also write to the Three Bureaux Implementation Group for details of its co-ordinating work on the protection of children and vulnerable adults.

DR J HENDRON
Committee Chairman

WEDNESDAY, 25 SEPTEMBER 2002 at 1.30 pm
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Ms P Armitage
Mr P Berry
Rev R Coulter
Mrs A Courtney
Mr J Kelly
Ms M McWilliams
Mrs I Robinson

Apologies: Mr T Gallagher (Deputy Chairman)
Ms S Ramsey

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr B Greene (Administrative Support)
Mr M Norman (Administrative Support)
Mr Chris Thomas (NHS Management Trainee)

The Chairman referred members to a paper prepared by the Clerk that set out the range of issues raised in the written and oral evidence. This included a number of proposed amendments. The Clerk explained that the paper was by way of a preparatory guide to members in advance of the clause-by-clause consideration of the Bill, which was due to commence at next week’s meeting. Members undertook to examine the paper in the overall context of the Bill prior to the next meeting.

The Clerk confirmed that letters of invitation to provide oral evidence had issued to the Northern Ireland Office and the Police Service of Northern Ireland.

That, in accordance with Standing Order 31 (5), the period referred to in Standing Order 31 (3) be extended to 22 November 2002, in relation to the Committee Stage of the Protection of Children and Vulnerable Adults Bill. (NIA 22/01).

DR J HENDRON
Committee Chairman

WEDNESDAY, 2 OCTOBER 2002 at 2.00 pm
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Mr T Gallagher (Deputy Chairman)
Ms P Armitage
Mrs A Courtney
Mr T Hamilton
Mr J Kelly
Ms S Ramsey

Apologies: Mr P Berry
Rev R Coulter
Ms M McWilliams
Mrs I Robinson

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr W Long (Executive Support)
Mr B Greene (Administrative Support)
Mr C Thomas (NHS Management Trainee)

Detective Chief Inspector William McAuley, Care Co-ordinator for Northern Ireland, PSNI

The Chairman welcomed DCI McAuley to the meeting. DCI McAuley then briefed the Committee on the importance of the implementation of Part V of the Police Act in Northern Ireland to the effectiveness of the Bill. He explained that this would allow the sharing of "soft" police information through an enhanced criminal record check. DCI McAuley emphasized that enactment of Part V of the Police Act would make the disclosure of information much more detailed and time effective. The Chairman thanked DCI McAuley, and he left the meeting at 2.35pm. The entire proceedings are recorded separately in verbatim minutes of evidence.

The Chairman referred members to a clause-by-clause briefing paper setting out the key issues and concerns, including suggested amendments, as highlighted by witnesses. He welcomed the Officials, who would be facilitating the Committee in its scrutiny of the Bill.

Question, That the Committee is content with clause 1, put and agreed to.

The Chairman advised that some witnesses had suggested that the requirement to refer individuals for inclusion on the register should not be restricted to child care organisations but should include all organisations. Mr Clarke advised that equivalent legislation is before the Scottish Assembly. He advised that to amend the legislation by replacing "A child care organisation shall" with "All organisations shall" would not prove effective, as it could not be enforced in practice. He cautioned that the legislation was operating in relation to the vetting of individuals and was not meant to provide certificates of clearance for work with children.

The Committee deferred further consideration of the clause until next week’s meeting.

Question, That the Committee is content with clause 3, put and agreed to.

Scrutiny of clause 4 was deferred as a consequence of the Committee’s further consideration of clause 2.

Question, That the Committee is content with clause 5, put and agreed to.

Question, That the Committee is content with clause 6, put and agreed to.

Scrutiny of clause 7 was deferred in the context of the Committee’s further deliberations on clauses 2 and 4.

Question, That the Committee is content with clause 8, put and agreed to.

Question, That the Committee is content with clause 9, put and agreed to.

Question, That the Committee is content with clause 10, put and agreed to.

Question, That the Committee is content with clause 11, put and agreed to.

Further scrutiny of this clause was deferred pending the Department’s clarification of the need to ensure that executive directors of social work in HSS Trusts may apply for an order in respect of an individual being restored to the list.

Scrutiny of this clause was deferred pending input from officials from the Department of Education.

Scrutiny of clause 14 was deferred pending the Committee’s consideration of clause 2.

Scrutiny of clause 15 was deferred pending a response from the Northern Ireland Office on the commencement of the Police Act 1997 in Northern Ireland.

Scrutiny of clause 16 was deferred pending the Committee’s consideration of clause 2.

Scrutiny of clause 17 was deferred pending the Department’s further consideration of the suggested amendment by the NSPCC to allow one organisation to whistle-blow on another.

Scrutiny of clause 18 was deferred pending the Committee’s consideration of clause 2.

Question, That the Committee is content with clause 19, put and agreed to.

Mr Clarke explained that the Department had been examining the new Scottish legislation, which introduces a concept that is different from disqualification orders. It means that courts can make referrals directly to the Department and avoid the difficulty with disqualification orders. Scrutiny of the clause was deferred pending the Department’s consideration of the suggested amendment and the flexibility afforded by the Scottish approach.

Mr Clarke advised that the Department would consider a suggested amendment by the Probation Board that the qualifying sentence should include community orders, and a suggested amendment to sub-section 5 by Ms McWilliams, which was essentially a strengthening provision. The clause was referred for further consideration.

Mr Clarke advised that the suggested amendment to strengthen the disqualification provisions would be considered in the context of the Department’s further examination of the Scottish system, which gives the courts the power to make referrals to the Department.

Scrutiny of clause 23 was deferred for the same reason as clause 22.

As clause 24 refers to a disqualification order, which is the subject of a suggested amendment, scrutiny was deferred until next week’s meeting.

The Chairman thanked the Officials for their input, and the Committee Stage of the Bill was adjourned until next week’s meeting.

DR J HENDRON
Committee Chairman

WEDNESDAY, 9 OCTOBER 2002 at 1.30 pm
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Dr J Hendron (Chairman)
Mr T Gallagher (Deputy Chairman)
Rev R Coulter
Mrs A Courtney
Mr J Kelly
Ms M McWilliams
Ms S Ramsey
Mrs I Robinson

Apologies: Mrs P Armitage
Mr P Berry
Mr T Hamilton

In Attendance: Mr P Hughes (Committee Clerk)
Mr D Harkin (Assistant Clerk)
Mr D Gordon (Executive Support)
Mr W Long (Executive Support)
Mr B Greene (Administrative Support)

ii. In order to keep the public informed of the range of views and suggested amendments expressed in witnesses’ written submissions and oral evidence, the Chairman recommended that the Committee order the publication of the evidence received.

That the written submissions received, minutes of evidence (as amended) and explanatory memoranda, and the minutes of proceedings relating to the Protection of Children and Vulnerable Adults Bill be printed.

DR J HENDRON
Committee Chairman

Department of Health, Social Services and Public Safety

Mr John Clarke
Ms Eilís McDaniel

Children’s Law Centre

Ms Tara Caul

Explanatory Memorandum

Mr Ian Elliott
Mr Colin Reid

Probation Board for Northern Ireland

Mr Brian McCaughey
Mr Paul Doran
Ms Val Owens

Explanatory Memorandum

SSAFA Forces Help

Ms Maggie Smyth

Explanatory Memorandum

Police Service of Northern Ireland*

DCI William McAuley

Department of Health, Social Services and Public Safety*

Mr John Clarke
Ms Eilís McDaniel

* Transcripts of oral evidence that have not been examined

Wednesday 4 September 2002

Members present:
Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Ms Armitage
Mr Berry
Rev Robert Coulter
Mrs Courtney
Mr Hamilton
Mr J Kelly
Ms McWilliams
Ms Ramsey
Mrs I Robinson

Witnesses:
Mr John Clarke ) The Department of Health,
Ms Eilís McDaniel ) Social Services and Public Safety

1.

The Chairperson: I thank John Clarke and Eilís McDaniel from the Department of Health, Social Services and Public Safety for coming here to brief the Committee on the background to the Bill.

2.

Mr Clarke: The general purpose of the Bill is to strengthen the arrangements for vetting people seeking to work with children or vulnerable adults by placing the existing arrangements on a statutory basis. New statutory registers will include the names of individuals considered unsuitable to work with children or vulnerable adults. Under the new arrangements certain organisations will be required to check the new statutory registers before employing an individual in a relevant position, and will also be required to refer the names of those who they consider to be unsuitable to work with children or vulnerable adults for inclusion on the register.

3.

An important strengthening of the existing arrangements would be the introduction, through the Bill, of offences that an organisation would commit if it knowingly employed an individual who was on the statutory register. It would also be an offence for an individual to work, or seek to work, with children or vulnerable adults while registered on either of the new lists. To protect the rights of people listed on the registers, the Bill introduces a right of appeal to an independent tribunal.

4.

The Bill is quite large and I am conscious of the time. There are 11 main subject areas in the Bill, so I will touch on those briefly. The first main subject area concerns the maintenance of the lists. The Bill makes provision for two lists: one to deal with those deemed unsuitable to work with young children; and the other to deal with those deemed unsuitable to work with vulnerable adults. The Department will maintain the two lists, and it will be possible to place an individual on both if he or she is deemed to pose a risk to both categories of people.

5.

The other main subject area concerns access to the lists. Where a childcare organisation proposes to offer an individual employment in a childcare position, the organisation will be required to check whether the individual is on the list. The organisation will also be required to check the lists held by the Department of Education of those deemed unsuitable to work with children on the grounds that they pose a risk. The legislation interfaces with the suitability of those who wish to work in schools. I am sure that there will be discussion about the fact that the Bill would require only childcare organisations to carry out checks, while other organisations may carry out checks. The Department will facilitate checks against the list. The provisions in relation to vulnerable adults are broadly similar.

6.

Childcare organisations will be required to make referrals to the list of those deemed unsuitable to work with children. The criteria for an organisation to make a referral are broadly that the individual has harmed a child.

7.

Ms Ramsey: May we comment point by point?

8.

Mr Clarke: I am happy to deal with it in that way as the Bill is quite big and I could talk about it for a long time.

9.

The Chairperson: It is better to do that as the Bill is extensive.

10.

Ms Ramsey: The Committee received a large response to the draft Bill from individuals and organisations involved in this field. I was struck by the fact that although the majority, if not all, of those who responded welcomed the Bill, they were all concerned about the definition of childcare organisations. The Bill states that childcare organisations must carry out those checks, and that other organisations may carry them out. I would hate to go half-a-mile down the road with the Bill, with everyone welcoming it, only to go back half-a-mile because of the definition of childcare organisations.

11.

The Bill is for the protection of children and vulnerable adults, but organisations working with vulnerable adults are not classed as childcare organisations, which means that although the adults are vulnerable, people working with them do not have to undergo the same checks.

12.

Mr Clarke: That would not be right. A duty is placed on those who provide services to vulnerable adults. There is a whole raft of issues concerning what "vulnerable adult" means, and we will come to that later. Providers of services to vulnerable adults have a duty, comparable to that of providers of services to children, to make referrals to the relevant list of those unsuitable for work with vulnerable adults.

13.

Ms Ramsey: What is the Department’s definition of a childcare organisation?

14.

Mr Clarke: The definition of a childcare organisation is contained in the legislation. The whole point of having such a definition is to enable the identification of organisations so that statutory duties can be placed upon them. Clause 18 (1) states

" "child care organisation" means an organisation—

(a) which is concerned with the provision of accommodation, health services or personal social services to children or the supervision of children;

(b) whose activities are regulated by or by virtue of any prescribed statutory provision; and

(c) which fulfils such other conditions as may be prescribed;"

15.

The key thing to remember is that the Bill is based on the principle that the childcare organisation is already recognised in the statute. There has been substantial argument about the suggestion, which many have made, that the duty should be placed on all organisations. That leaves one faced with the difficulty of identifying what is meant by "all organisations" and what is "an organisation". Groups of people can be involved with children but they may not be understood to be an organisation. When placing a statutory duty on any group, we are always faced with the problem of identifying the group. The approach in the Bill is to introduce a system of accreditation, which basically allows that if one cannot place a duty on an organisation, organisations can identify themselves. The view taken in the Bill is that it most important to be able to identify which groups the duties will be placed on. I know that there are concerns about not proposing that all organisations should make referrals. Presumably we will return to this issue when we go through the detail of the Bill.

16.

Ms Ramsey: I am not happy with that, and will return to this later.

17.

The Chairperson: We will move on.

18.

Mr Clarke: As regards appeals, a person will not be placed on either list without being able to make representations to the Department. The Bill sets out the referral process. When the person has been informed of the referral, they are invited to make comments. The organisation that made the referral may also be required to do so. Only after the Department has considered all the representations made by the individual and the organisation will a decision be taken to place an individual on a list. The person will still have the right to appeal to an independent tribunal.

19.

The Bill creates powers to allow the Department of Education to make regulations that will prevent an individual being employed as a teacher or in other education-related employment involving children. Those regulation powers will be added to the Department of Education’s existing power to make regulations relating to the suitability of people working in the education sector.

20.

The Bill makes it an offence to work in a regulated position, and the definition of "regulated position", as set out in the Bill, is extremely wide. It covers all areas where people work with children. The Bill also makes provision for disqualification orders to be made. The court will have the power to make a disqualification order on people who have been convicted of certain offences that are set out in the schedule to the Bill. The effect of the disqualification order will be similar to being placed on the list held by the Department in that it will be an offence to work, or seek work, with children whilst subject to a disqualification order.

21.

There are inter-jurisdictional arrangements. The Bill makes provisions for any disqualification or prohibition from working with children made in another jurisdiction to apply in Northern Ireland. That power is stated widely in the Bill, and the Department will have the power to enforce all disqualifications regardless of where they are imposed — in another European jurisdiction or elsewhere.

22.

The Criminal Records Bureau is associated with the Bill, and it is topical as its mechanism in England and Wales is now receiving adverse publicity. The Department has been informed that the Secretary of State in the Northern Ireland Office, who has responsibility for this area, does not intend to commence the legislation in Part V of the Police Act 1997 which would create a body equivalent to the Criminal Records Bureau in Northern Ireland. That means that the Department will carry out the checks, including criminal record checks. The Department does that in liaison with the police and will continue to do so.

23.

However, I am concerned about that. Although the Department can access criminal record certificates, there is a problem because Part V of the Police Act 1997 also makes provision for enhanced criminal record certificates, which would include certain "soft information". The enhanced criminal record certificates contain actions that fall short of a criminal conviction. At present the Department does not have a difficulty with accessing criminal records that include convictions and cautions — those are part of criminal records. However, the Department is unclear about whether it can access anything equivalent to an enhanced criminal record certificate in the absence of commencement of Part V of the Police Act 1997. Departmental officials are continuing to discuss these matters with the Northern Ireland Office because they range outside the Bill into other areas.

24.

The definition of "vulnerable adult" may cause problems. Children are presumed to be vulnerable by virtue of their age, but the same does not apply to adults. The Bill provides a lengthy definition of "vulnerable adult", but it is an area of concern. Comparable legislation in England and Wales, the Care Standards Act 2000, has not yet been implemented. My understanding is that it is unlikely to commence until next year. Much of the delay has been caused by substantial difficulties in defining the relevant posts for the purposes of identifying people who are working with vulnerable adults. There are problems in identifying vulnerable adults and deciding which posts require checks to be carried out, particularly those in the health sector which are more problematic than those on the social-care side.

25.

Our legislation covers an accreditation scheme, which will be open to any non-childcare organisations that apply. We would like the organisations to adopt proper child protection standards, including the carrying out of checks. I must emphasise that carrying out checks is only part of the child protection measures that are in the Bill. We would expect accredited organisations to undertake wider implementation of protection standards.

26.

Those are my general comments on the Bill. There may be points that Committee members wish to pick up on.

27.

Ms McWilliams: One or two of the submissions suggested amendments to the Bill. Can you comment on those at this stage? One submission from the National Society for the Prevention of Cruelty to Children (NSPCC) suggests that the Department might accept its amendment concerning accreditation. You are in a better position to comment, because you must be familiar with the consultation process and amendments that have been suggested. Can you tell the Committee what stage the Department is at?

28.

Mr Clarke: I am not sure what you want me to say. I am aware of the consultation and what people would like to be changed. We touched on the definition of childcare organisations, for example. Many issues have been raised; do you have a specific one in mind?

29.

Ms McWilliams: I will be specific. The NSPCC’s submission says that it proposed an amendment to clause 17. My understanding is that it is saying that the Department has taken that amendment on board. For example, the Committee may be familiar with the famous Martin Huston case. If I remember correctly, he worked for the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) or one of those organisations, but he moved from one organisation to another and was abusive in each post. An organisation should be able to blow the whistle and alert other organisations about an employee who has moved on. At present, an organisation can only blow the whistle on its own employees.

30.

Mr Clarke: That suggests widening the whistle-blowing ability. Despite what the NSPCC has implied, the Department is not in a position to officially accept such an amendment, although it has regular discussions with the NSPCC. That is a policy consideration, and I cannot say that anything has been agreed.

31.

My reaction is that such an amendment would create a new dimension of responsibilities for organisations. The NSPCC might be suggesting that, if an organisation knows that an individual is a potential threat to children, it should inform other organisations. Legislation concerning organisations is generally based on the fact that an organisation has taken some action by dismissing or removing the person from the post. Why should we stop at saying that an organisation should be able to blow the whistle rather than an individual? In other words, anyone should be able to blow the whistle. I am not entirely clear about the logic of allowing one organisation to do it rather than the general public. That opens up some wide-ranging issues.

32.

The Chairperson: When we come to the clause-by-clause discussion of those matters, and possible amendments to them, it will be relevant to us.

33.

Mr Clarke: We must be careful with the Bill not to open up a situation in which anyone can make a referral about a person. I am not saying that that might not be right in terms of child protection, but I would caution against that possibility, or going down that road, because it creates a different dimension in respect of the rights of individuals to make accusations against others.

34.

Ms McWilliams: I am certain that the NSPCC are not suggesting that for a moment. I am suggesting that the NSPCC have extensive experience of the problems surrounding the sexual abuse of children, and are anxious that the legislation, as currently drafted, does not take on board one of its major concerns. All of us have issues around civil liberties, but they have asked that a specific amendment be made. It is obviously the NSPCC’s understanding, but not yours, that the Department are going to take that matter on board. That is all that I wanted to be clarified, because the NSPCC stated that in their submission to us. Clearly, you are not of the same view.

35.

Mr Clarke: I am not in a position to make a decision on a policy such as that. It represents a major policy shift in the Bill, and we would have to take cognisance of it if the Committee is supporting it. My initial view is that it makes the position regarding referrals much wider. While I can understand why the NSPCC would put it forward, I am not sure why it would be limited to an organisation and why individuals would not be permitted to make a referral.

36.

Ms McWilliams: The NSPCC has proposed its own amendment, which limits the right of referral to childcare organisations. They have given us a wording that we can look at.

37.

The Chairperson: We can go back to that in the clause-by-clause discussion.

38.

Mr Clarke: Why would it be limited to a childcare organisation? We are dealing with significant and serious areas of law that involve criminal offences. If referrals were to be permitted, we would have to scrutinise that situation carefully. I would not like to give an off-the-cuff opinion.

39.

Ms Ramsey: To be fair to the NSPCC, they were talking specifically about the Martin Huston case, and they mentioned and included the Police Act 1997, as Mr Clarke said. It is not as if they were talking about individuals. It was about individuals working within organisations and the whole issue of whistle-blowing. Martin Huston was able to move from one organisation to another.

40.

Mr Clarke: I do not want to create the impression that we are dismissing what the NSPCC are saying. I have been put on the spot on a serious issue, and have flagged that as an issue to be returned to.

41.

The Chairperson: We may or may not support that amendment, but it is an important point.

42.

Mr Hamilton: Is the Department satisfied that there are sufficient safeguards to protect workers from malicious accusations? The nature of what we are dealing with means that in certain professions a malicious accusation could be enough to wreck an entire career. We must be certain that the safeguards against that happening are strong enough to ensure that the Bill does not create a different kind of victim.

43.

Mr Clarke: That is linked to what we have been talking about. Referrals are currently based on the assumption that employing organisations have taken some action, such as dismissal or transfer. There are employment issues there. Before the system in the Bill kicks in, a hurdle must be jumped in that the employer will have decided to remove a person.

44.

Outside this Bill there are implications concerning employment law. My focus is on child protection and we shall go as far as possible to get it right. However, there is a concern about malicious referrals, as well as referrals that are made negligently without much thought, and the whole set of consequences for the person involved. Although it does not happen day and daily, information has been passed to us, as the branch responsible for the existing Pre-Employment Consultancy System (PECS), which puts us in an invidious position. In the current system the criteria are set out, and they are broadly similar to those in the Bill. If I am told that someone is a threat to children — and that could well be the case — I cannot simply make assumptions. That could have implications for an individual. There is a danger of malicious referrals, although I do not know how great that danger is, because it concerns employment situations.

45.

There are sufficient safeguards in the Bill as it stands, because the employer has had to jump a hurdle and make a decision in relation to an individual. That has come from the employing organisation and not from someone who has made a referral with no risk to himself. In dismissing or taking action to move a person in his or her employment, the employer has at the very least rendered himself open under unemployment law to further action by an individual. In our concern to protect children we must be very careful that our whole legislative framework is not subject to any challenge which could seriously damage it. There are sufficient safeguards, but it is an area of concern.

46.

In my general comments I did not cover fees, resources and implementation. It is not envisaged that the legislation will have major resource implications; however, those could be famous last words. That is partly because PECS is in operation and approximately 30,000 checks a year are made. Unlike other occasions, if the numbers were to rise we could calculate the difference fairly accurately because a system is already in operation here. For example, if vulnerable adults were to weigh in with an equal number of people, it would not be difficult to calculate the necessary additional staffing resources, which would amount to only three or four people.

47.

Ms McDaniel is giving some thought to streamlining the way in which we do business. Our current system is largely manual and savings could be made if IT was introduced. However, major resource implications are not anticipated. Provision is made for fees to be charged, and those would offset resource implications. Voluntary organisations could be charged fees, and that is an issue. Many issues come to light, and I do not wish to address all of them now.

48.

With regard to implementation, we are much further advanced in relation to children than to vulnerable adults. We could probably commence this for children in approximately one year, which would allow for the revamping of guidance and other matters, as it would not be such a revolution in the work of organisations. The text of existing guidance would be more closely modelled on the legislation. There is a lot of work to be done, but it is achievable in a relatively short time.

49.

The arrangements for vulnerable adults have caused substantial problems in England and Wales, and will not commence there for another three years. We are less confident about the timescale. The only vulnerable adults that we currently deal with are adults with learning disabilities, so we do not have the full system, or anything like it, for vulnerable adults at present.

50.

Ms McWilliams: My question relates more to the NIO than yourselves, but clearly you have been in consultation with them. It relates to soft intelligence, as opposed to hard intelligence, and the enhanced certificate that exists in England and Wales, but not here.

51.

Mr Clarke: Strictly speaking, that relates to the commencement of Part V of the Police Act 1997. The Criminal Records Bureau is the mechanism for doing that in England and Wales, and it has a lot of problems. Although we can see an administrative way round being able to get criminal records certificates, as at present, our problem is that the public should be sensitive about the area where people have not been convicted, but where there is sufficient evidence for the police to certify something about those people. It is obvious that we need that, and that legislation already extends to Northern Ireland. There will be communication at ministerial and other levels with the Secretary of State about when it will commence, but there are no plans for that at present. We can go ahead with our legislation because that is outside our legislation. However, I mention it because it is relevant to the child protection issue.

52.

Ms McWilliams: That is one of the major areas where problems arise. We all know the difficulty of getting convictions, especially where there is a clear record of intelligence, but no conviction.

53.

Mr Clarke: The release of intelligence requires the legislative backup, which is why that was legislated in the first instance. It is a potentially dangerous area because of people’s rights. That is why we have Part V of the Police Act 1997, which already extends to Northern Ireland. We can work the system as this does not affect the Bill — it is working at present. However, for the protection of children that is an element that is missing. It is an element that we need in this area, and it is also needed outside the Bill for other vetting. It is wide-ranging and includes the suitability of people to adopt children. There is a whole raft of issues in the Police Act 1997 that touch on enhanced certificates, and this can only be answered by its commencement or some decision taken in connection with what will be done here about enhanced criminal record certificates.

54.

Ms McWilliams: In light of that, perhaps we should ask the NIO to give us evidence.

55.

Mrs I Robinson: It is very important.

56.

The Chairperson: That would seem reasonable. Thank you Mr Clarke and Ms McDaniel, this has been very helpful.

Wednesday 11 September 2002

Members present:
Dr Hendron (Chairperson)
Mr Berry
Mr J Kelly
Ms McWilliams
Ms Ramsey
Mrs I Robinson

Witnesses:
Ms Tara Caul ) Children’s Law Centre

57.

The Chairperson: Thank you very much for your documentation, Ms Caul.

58.

Ms Caul: Thank you for affording the Children’s Law Centre the opportunity to give oral evidence to the Committee. The NSPCC representatives comprehensively covered issues similar to those addressed in our submission, and I will not dwell on them. The Children’s Law Centre is a small, independent non-governmental organisation that helps children and young people and parents, carers and professionals to work with and understand the law relating to children. Our submission deals with the clauses of the Bill.

59.

The Children’s Law Centre’s work involves day-to-day contact with children and young people, and we agree that children have the right to be protected from harm by a comprehensive and seamless system. However, we would welcome the creation of a one-stop shop to complete the vetting procedure.

60.

The ultimate goal, as required by the UN Convention on the Rights of the Child, is to protect as many children as possible from harm. That is reinforced by the European Convention on Human Rights, which also requires states to implement effective legal mechanisms to protect children from inhuman and degrading treatment.

61.

It is clear from case law that child abuse can amount to inhuman and degrading treatment. If a state does not implement a coherent and comprehensive system of protection, it could therefore be potentially liable for harm suffered by children.

62.

We welcome the Bill. We endorse the NSPCC’s comments about the importance of the proactive implementation of an accreditation scheme, raising public awareness and the need to ensure adequate all-island systems of checking. As stated on page 2 of our submission, the Children’s Law Centre welcomes the proposal in clause 1 to establish a statutory list.

63.

Clause 18(1) defines ‘childcare organisations’ as organisations that are concerned with either the provision of accommodation and social and healthcare services to children or, in the case of prescribed organisations, with the supervision of children. It is a narrow definition, and the Children’s Law Centre recommends that all organisations that employ staff, and/or volunteers who have regular contact with children and young people, be obliged to carry out checks and make referrals through the new system — as a duty, not a discretion. The definition should include organisations such as the Brownies, Scouts, Guides, youth clubs and sports clubs and people such as entertainers and home tutors. Institutions in the criminal justice system that have regular contact with children and young people should also be included.

64.

It is for that reason that the Children’s Law Centre suggested a wider definition of "childcare organisation". It accepts that the accreditation scheme is innovative. If the amendments to that definition are not accepted, the centre would support accreditation. However, it would prefer the Committee to consider broadening the definition. The centre’s suggestion is outlined on page 2 of its submission.

65.

The definition of "childcare position" is outlined in the Bill. The centre recommends that that definition be broadened to include reference to children in juvenile justice centres and those who work with them. The centre is unclear about an exclusion contained in clause 29(4), which addresses children who are in employment, and would like the Committee to consider it. We also recommend that clause 29(1)(c) is amended to include the words "advising" and "counselling". Those involved in advising and counselling should fall within the definition of a childcare position.

66.

In the event that amendments are not made to the statutory definition of a childcare organisation, we would support the introduction of the accreditation system under clause 16. However, we would like to see that as a mandatory requirement for organisations that include post holders who have regular contact with children. We have suggested an amendment in that regard.

67.

One of the issues dealt with in the evidence given by the National Society for the Prevention of Cruelty to Children (NSPCC), which I was to pick up on, relates to the education sector. The education sector is to hold a separate list, List 99. There will be two lists — the Protection of Children Act List and List 99. The articles and regulations that govern List 99 relate to the prohibitions and restrictions on the employment or further employment of teaching and non-teaching staff in grant-aided schools. The present Bill recommends the amendment of those regulations to cover cases of unsuitability to work with children. That is a significant improvement on the enabling education legislation.

68.

However, there are a couple of points that we hope the Committee could raise with the Department of Education. We have talked to Department of Education personnel about these issues, but I am not suggesting that they are aware of our amendments. It is important that there be more consultation about any further Department of Education Regulations. It is of particular concern that independent schools do not currently seem to be covered by either this Bill or the education Regulations.

69.

Also, non-teaching staff in further education institutions may not be covered by either the education regulations or the present Bill. I say "may" because it has been indicated that the way the regulations are currently drafted may be wide enough to cover ancillary staff in further education. However, I suggest that the Committee might clarify that with the Department.

70.

I have three final brief points, the first of which concerns the standard of proof. Under current education provisions, the requirement is that

"the individual is unsuitable to work with children."

So the wording in slightly different to that of the Protection of Children and Vulnerable Adults Bill, which clearly says it is whether the individual has been:

"guilty of misconduct…which harmed a child or placed a child at risk of harm."

71.

We are unclear at this stage as to the implications of two standards of proof. Again, we would like officials to deal with that.

72.

Perhaps the most important point that we could raise today would relate to the implementation of the Police Act 1997. As has already been stated, Part V of the Police Act 1997 and the establishment of a criminal records bureau must be expedited urgently. We would support the establishment of a one-stop shop system.

73.

We also want to endorse the NSPCC’s position on arrangements for the cross-border issue and on waiver of fees for voluntary and charitable sector organisations.

74.

The Chairperson: Thank you very much. That has been helpful.

75.

Ms Ramsey: Thank you, Ms Caul. I am interested in the independent or voluntary schools, which you write about in your submission. What is an independent school? How many of them are there?

76.

As you know, further education does not fall under the remit of the Department of Education or the Department of Health, Social Services and Public Safety. I assume that we are talking about vulnerable adults?

77.

Ms Caul: I have raised the issue of independent schools with the Department of Education. I suggest that the Committee again queries whether the legislation can cover independent schools. Independent schools are not grant-aided schools. The Department of Education will have to give the Committee some indication of its intentions.

78.

Ms Ramsey: In my constituency of Belfast West there are groups of young people who, for various reasons, are not involved in mainstream education. Are those types of groups included? Do they go through the same process?

79.

Mrs I Robinson: The reference is to private, independent Christian schools.

80.

Ms Caul: That is correct.

81.

Ms Ramsey: Will the voluntary sector also be dealing with it?

82.

Ms Caul: Do you mean things such as out-of-school provision?

83.

Ms Ramsey: No, I refer to school provision. They are providing classes, however, the kids are not in mainstream education.

84.

Ms Caul: I presume that they operate in accordance with ‘Our Duty to Care’ as regards good practice guidelines in that sector.

85.

Currently, teachers in further education colleges are covered by Department of Education regulations. The non-teaching staff are not specifically referred to in those. It may be that the definition is wide enough to cover them, but they are not clearly included, and that is an important point.

86.

Ms McWilliams: To clarify the position of independent schools, are they exempt from other types of legislation, which cover punishment et cetera?

87.

Ms Caul: I am aware that the Education and Libraries Bill incorporates an amendment to deal with corporal punishment in independent schools.

88.

Mrs I Robinson: My children went to an independent Christian school where there was the option of corporal punishment.

89.

Ms McWilliams: That was part of a recent debate on the Floor of the House. It is exempt in some of the legislation in Britain. When that was going through, were amendments made?

90.

Ms Caul: I do not have that information, but I can check.

91.

Ms McWilliams: There are other faith schools in Britain that would be independent. It would be useful if you checked if there were amendments, and if they were successful.

92.

The submission from Women’s Aid among others stressed a difficulty with fees for accreditation. What is your response?

93.

Ms Caul: I agree, as a lot of those organisations rely on volunteers, and most have strict policies as it is. The introduction of accreditation will be expensive for organisations that depend on volunteers. We use volunteers and students in our centre, and currently, we vet everyone. It has significant implications for smaller organisations.

94.

Ms McWilliams: Do you have any proposals for that?

95.

Ms Caul: We hope that the fees would be waived for small voluntary and charitable organisations to enable those to comply with accreditation, as many schemes want to become accredited. Alternatively, additional funding might be provided to cover the fees.

96.

Ms McWilliams: Is there equivalency in, for example, registered homes? Is there a sliding scale depending on their size? A large charity might be able to afford this; the difficulty lies with little groups.

97.

Is there an equivalent? Maybe you do not know the answer to that. It may be worth checking that out because if we make a proposal, it will be either a lump sum or nothing. We might not get the nothing, but we may at least get a sliding scale recognised. The last thing we want is no vetting. Some organisations may feel that it is more than they can afford because they would have to do it regularly.

98.

The Chairperson: We will explore that.

99.

Mrs I Robinson: With regard to the current loopholes in the provisions which apply in the Irish Republic, what mechanisms would the centre advocate in support of collaborative cross-border vetting arrangements?

100.

Ms Caul: We endorse the NSPCC’s position.

101.

The Chairperson: Thank you for the presentation and documents.

11 September 2002

Members present:
Dr Hendron (Chairperson)
Ms Armitage
Mr Berry
Mr J Kelly
Ms McWilliams
Ms Ramsey
Mrs I Robinson

Witnesses:
Mr I Elliott ) National Society for the Prevention
Mr C Reid ) of Cruelty to Children

102.

The Chairperson: Thank you for coming. You are very welcome.

103.

Mr Elliott: The NSPCC is very grateful to the Committee for this opportunity to give evidence on the Protection of Children and Vulnerable Adults Bill. We have been closely involved in campaigning for this legislation and for improvements in our system of suitability checking for those who work with children. We feel that the provisions of the Bill are the sound product of constructive consultation. We commend the Department for attempting to address our concerns.

104.

In some respects, the proposals in the Bill take us beyond current practice in other jurisdictions. In particular, the concept of accreditation in clause 16 deals imaginatively with the absence of an obligation under the Protection of Children Act 1999 for non-childcare organisations to refer those dismissed for harming children or, indeed, to carry out checks against the 1999 Act list. Accreditation, if developed imaginatively, has the potential to improve child protection standards in non-regulated organisations.

105.

This Bill establishes a floor, not a ceiling. The challenge will lie in its implementation and outworking. We still have questions about the policy intent of the Bill, and a few technical queries about the legislation. The Committee may find it helpful to tease these out with departmental officials during the Committee Stage of the Bill.

106.

Accreditation of voluntary organisations should be supported and promoted by all Departments. Ideally, we would like to see this concept acquire the status of a Kitemark. Parents will want to know that organisations meet expected standards in child protection.

107.

What is the Department’s position regarding the imposition of fees, both for accreditation and for accessing the registers, for smaller organisations that depend on the use of volunteers? We hope to see those fees waived, as has already been announced by the Home Office and the Scottish Executive in equivalent legislation. It is an important issue. Small organisations could be overburdened by the costs involved in carrying out checks, which could be a considerable disincentive.

108.

We seek adequate all-island systems of suitability checking, placing emphasis on how this issue is being progressed by the Department of Health and Children in the Republic of Ireland. Although the Minister has announced that access to the Department’s list will be available to organisations in the South for checking on staff who have been domiciled or have worked in Northern Ireland, the lack of an equivalent consultancy index or, indeed, criminal records system, is worrying. It effectively creates a major loophole in our own system for staff coming from South of the border.

109.

We recommend the establishment of an advisory panel with expertise drawn from inside and outside the Department to consider cases for potential listing under clause 2. We suggest the establishment of a small reference group to assist the Department in examining individuals for potential listing against the criteria to be used.

110.

We welcome the development of the Pre-Employment Consultancy Service (PECS) awareness group to promote and raise awareness of vetting and to provide information for parents. This group has an important role to play in the outworking of the Bill.

111.

It is important to recognise that a range of situations are not covered by the scope of the Bill, such as, for example, self-employed entertainers, unregistered childminders employed in parents’ own homes, and au pairs not employed through an employment agency. There is an urgent, ongoing need to educate the public about the limits of vetting people’s suitability to work with children. The Department’s list is but one component of good employment practice. That is an important message to convey to the public.

112.

The NSPCC recommends that the PECS awareness group be established as a permanent forum within the Department to develop the public education component of suitability checking, and that the group develop strategic outputs that link in to, and are overseen by, the proposed child protection review group that is being established by the Department.

113.

I wish to draw to the attention of the Committee some potential amendments that we would like you to consider. The first relates to clause 13. There is a complex interface between List 99 and the Department’s list. That is particularly so in regard to Regulations that have yet to be developed by the Department of Education under the Education (Northern Ireland) Order 1996. Ms Caul of the Children’s Law Centre will deal with that in more detail.

114.

We suggest that the Committee consider the necessity of the phrase "(other than provisionally)" in clauses 13(2) and 13(3). We have been advised by the Department of Education that, if someone is listed provisionally on the Department’s list, then procedurally and under Regulations to be developed by the Department they could still be working with children. We are unclear as to why this distinction is in the Bill. Is it necessary?

115.

The second proposed amendment relates to clause 17. The NSPCC has had lengthy discussions with the Department regarding this clause and the adequacy of the proposed whistle-blowing arrangements. This is another unique feature of the Bill. There is a complex balance of considerations in this clause, set within the context of human rights issues.

116.

We understand that, in many ways, clause 17 will interface with accreditation and other regulatory requirements and, over time, be reflected in the development of whistle-blowing policies in organisations. However, we propose a slight amendment, which, we understand, may be supported by the Department. The Committee may wish to consider a provision to allow organisations to blow the whistle on other bodies where they are aware that the requirements of clause 2 are not being fulfilled — for example, when a person is dismissed for harming children, is listed by the Department, and moves to another childcare organisation, and requirements are not followed. It should be remembered that the Martin Huston case involved an individual who moved from one voluntary organisation to another to further his abuse of children. We suggest changes in the wording of clause 17 to strengthen it and address that issue.

117.

Finally, we invite the Committee to address part V of the Police Act 1997, which extends to Northern Ireland but has not yet been enacted. The 1997 Act is part of UK-wide measures that run in tandem with the provisions of the Protection of Children Act 1999 and this Bill. Part V of the 1997 Act effectively allows for the provision of soft police intelligence — allegations, unsuccessful prosecutions, et cetera — in the form of an enhanced criminal record check that is required for work with children. The failure to apply part V of the 1997 Act to Northern Ireland is potentially very serious in terms of the interface with this Bill. The position in Northern Ireland will be left different from that in England and Wales.

118.

It may be useful to give an example of how the failure to apply part V of the 1997 Act to Northern Ireland might impact here. Consider an adult who has had six serious allegations of sexual abuse made against him over a period and one unsuccessful prosecution due to the fact that the child was too young to give evidence. The individual is regarded as a serious risk to children by the police and by social services. However, he has no convictions and has not been dismissed from any post where he has harmed children.

119.

He applies to work in a youth club. He falsifies references, but a check is carried out by the organisation, which is accredited, as required by the Bill. He appears to have a clean suitability check. The Police Service of Northern Ireland has no legal basis on which to advise the Health Department of its soft intelligence, and there is no provision for the production of an enhanced criminal record certificate. He gets the job and has access to children. If he lived in England or Wales, information in regard to his past would become apparent under an application to the Criminal Records Bureau for an enhanced certificate, and he would not be employed.

120.

We do not consider that to be a satisfactory state of affairs. It is damaging to the operation of the Bill. We suggest that the Committee ascertain from Minister of State Jane Kennedy, as a matter of urgency, when part V of the 1997 Act will be applied to Northern Ireland. The Committee might wish to invite officials from the Northern Ireland Office to explain their intentions in relation to that.

121.

The Chairperson: We have asked the NIO to come to us on that issue.

122.

You referred to clause 17. How would your proposal to extend whistle-blowing to organisations work in practice? What are your views on extending the whistle-blowing provision to vulnerable adults, as well as children?

123.

Mr Reid: Our proposed amendment is a simple one. It provides organisations with legal protection when they blow the whistle on other organisations; for example, if an employer dismisses someone for harming children, but later sees that person taking up, or trying to get, employment elsewhere. The amendment would facilitate an organisation to contact the Department to advise them of the unsuitability of the person and the fact that they are trying to take up employment elsewhere.

124.

I am probably not the best person to answer questions about adults. However, the Bill interfaces with vulnerable adults and children, and we feel that there should be no distinction between the categories.

125.

Mr Berry: Clause 13 of the Bill is about independent schools. Has the Children’s Law Centre established why staff of independent schools and non-teaching staff in institutions of further education are not covered by the education Regulations or the Bill, and what are your views on the extension of the legislation to cover these groups?

126.

Mr Reid: Ms Caul, who is giving evidence next, will deal with some of those matters. This is not how to design a scheme if starting afresh; in a sense, existing systems are being built upon. We have concerns about the lack of clarity as regards List 99, the Department of Education’s requirements for teaching, non-ancillary or ancillary staff. The issue is not clear, which is one reason why you should get departmental officials to clarify the intention. Much is left to faith in the Department of Education to develop Regulations that will bring their scheme into line with the Department of Health, Social Services and Public Safety’s register. There are some peculiarities between the two.

127.

Ms McWilliams: This is a comprehensive background paper. Last week I asked departmental officials about the point you made in your submission that the Department was minded to adopt the amendment to clause 17 relating to whistle-blowing. I quoted the case of Martin Huston to the Department. The Department took a different view; it said that it might not intend to adopt that clause. I am concerned as to how that misunderstanding might have arisen. Clearly you have had contact with the Department — you would have discussed the amendment with them and, therefore, must have put the relevant point into your submission as a consequence.

128.

Mr Reid: I understood that to be the position. There has been substantial contact between the Department and the NSPCC about this clause. Indeed, in many ways we might have proposed other amendments to this clause. I have concerns about what happens when a whistle-blower does not want his or her name used. We had a long and fairly detailed discussion with the Department about clause 17. I also gave the Department a copy of the letter that I sent Mr Hughes on this issue.

129.

Mr Elliott: We discovered the Department’s position on the matter only today, and it fair to say that we are genuinely surprised. However, we would not want that to divert attention from the importance of the amendment. We continue to propose it, and to advocate it.

130.

Ms McWilliams: Such a case could be repeated if this clause is not amended.

131.

Mr Elliott: That is our view, which is why we brought the matter to the Committee’s attention. We are sincerely committed to ensuring that everything possible is done to prevent another tragedy such as the Martin Huston case.

132.

Mr Reid: You need to ensure that loopholes, through which people would fall, do not appear in this complicated legislation. We are seeking to ensure that the legislation is as robust as possible. There are many good aspects to the legislation, and we welcome the fact that it goes further than the Protection of Children Act 1999, which came about as the result of a private Member’s Bill introduced by Debra Shipley MP. She has warmly welcomed the provisions in this Bill and feels that if she could incorporate some of its provisions into her legislation, it would strengthen the Act.

133.

Ms McWilliams: Even with the introduction of this legislation, we will not be able to tackle cases involving self-employed entertainers. In one case, it came to my attention, and the NSPCC’s, that a known paedophile was working as a self-employed entertainer at children’s parties. Obviously this legislation will not cover such cases. The public needs to be made aware of the limitations of the legislation otherwise they could be lured into a false hope that it will cover every aspect of the problem. One thing we know about child abuse is that when the legislation restricts paedophiles, they move into other things. This is a clear incidence that has been left unregulated.

134.

Mr Elliott: It is critical that we raise public awareness of the limitations of vetting — you cited some examples of those limits. That is why the NSPCC has made reference to, and emphasised the importance of, the role of the PECS awareness group.

135.

Mr Reid: Vetting is very important, but the most significant element is Part V of the Police Act 1997. That is why we find it bizarre that the NIO has not been clear about what is actually happening in that regard. PECS and List 99 will capture only those who have been convicted or dismissed. Many people never end up being convicted of offences, which is why Part V of the Police Act 1997 is so significant. If it is implemented it will, through soft police intelligence, capture people who are unsuitable to work with children.

136.

Ms McWilliams: I have accompanied people though the very difficult process of trying to get sex abuse convictions. Sometimes it takes up to three years, which is how long my most recent case took. In that case the police ended up with only a very minor prosecution for indecent assault despite the fact that the victim had suffered a much more serious assault. The problem is that if the person admits their guilt, et cetera, the nature of the conviction will be affected. Does soft intelligence take into account bind overs, cautions, et cetera?

137.

Mr Reid: It involves non-conviction information; for example, if somebody has been investigated several times by police and social services for alleged sex abuse. One would have a fair idea of people who pose a risk in the community, and that information would be part of an enhanced criminal record certificate, if such a person subsequently applied to be a children’s coach. That information would come out as part of the vetting process. Soft intelligence is information about people who have not been convicted or dismissed for harming children, and which the police could make available in an enhanced criminal record certificate, as happens in England.

138.

Ms McWilliams: Is one of the reasons for the delay in recruiting teachers in England the fact that the enhanced certificate is in place?

139.

Mr Reid: The Criminal Records Bureau was launched in March and has had many teething problems. We have had difficulties with the body because, bizarrely, it will not check the Department of Health’s list in Belfast. As a result, people deemed unsuitable to work with children on our current list could go to England and gain employment without that information coming up during a check. We have had lengthy discussions on that, and various MPs have asked why the Criminal Records Bureau has not implemented the legislation on a three-nation agenda. As a result of intervention from Debra Shipley the bureau has set up a three-bureau implementation group to try to deal with some of these cross-jurisdictional issues.

140.

Ms McWilliams: I propose that the Committee ask for the matter to be taken up at the British-Irish Council. OFMDFM is constantly saying that it does not have many agenda items for British-Irish Council meetings. This would be a clear point for discussion. If Scotland, Wales and England were all operating together, that would at least constitute some attempt to tighten the net. However, if the net is left as wide as it is, then "move to Northern Ireland" will be the prescription that we are writing.

141.

Mr Reid: The NSPCC and the Department carried out an audit and looked at where the gaps are. In many ways we are probably better off than anywhere else at present. The major loophole is the Irish Republic, which is a major flaw in the system. The Republic does not have a consultancy index; therefore, someone could move from the Irish Republic up to Northern Ireland without our being able to vet him or her.

142.

The Chairperson: Ms McWilliams’s proposal is good because it takes in both legislatures.

143.

Ms Ramsey: Ms McWilliams raised an important point, but the North/South dimension is also an issue. Could we have a brief update on the situation?

144.

Mr Reid: At present, Northern Ireland is going one way — our standards are improving — and the Irish Government are going the other way — their standards are decreasing. The situation is very serious. In the Irish Republic, statutory agencies, such as health boards, can have a police check carried out on their staff. There is no equivalent of a consultancy index in the Irish Republic. The voluntary sector has been getting employers to use the Data Protection Act 1998 to check people — you go to the gárda station, present your data protection form and get your police reference, which is a back-door means of checking. The Irish Government have announced that they are going to outlaw that system. This may sound perverse, but, to be frank, if I were an employer in an organisation in the South I would recruit Northern-based staff, because at least they can be vetted.

145.

The Chairperson: We should ask the Minister to write to Micheál Martin, her counterpart in the South, on the issue.

146.

Mrs I Robinson: You gave a fairly good example of the adverse implications on the Bill if Part V of the Police Act 1997 were not enacted. Are there counter-arguments against enacting the Bill?

147.

Mr Reid: The Committee needs to take that matter up with the NIO. The Police Act 1997 applies to the UK, so I do not understand why it is not being applied in one part of the UK. This Bill has been allowed to develop without clear directional guidance from the NIO. References are made in various documents to the fact that the NIO is debating what is going to happen, but the Bill is seriously weakened by the absence of clear direction as regards Part V of the Police Act 1997.

148.

Mrs I Robinson: Are they playing on the human rights issue to halt the process?

149.

Mr Reid: Given that it is established practice in England and Wales, I would find that hard to believe.

150.

Mrs I Robinson: I cannot understand it either.

151.

The Chairperson: The NIO will be giving evidence to the Committee soon.

152.

Mrs I Robinson: I will raise this issue with them then.

153.

Mr J Kelly: You stated in your comprehensive submission that the Bill seems to establish a floor and not a ceiling. What changes would you suggest that would bring the Bill closer to the ceiling?

154.

Mr Reid: It depends how the Department will implement the accreditation aspect. Accreditation could be viewed as a very minimal scheme, with the result that to gain accreditation an organisation has to have a child protection policy and carry out vetting — that is one level. On the other hand, the Bill could say that to be accredited an organisation has to have a comprehensive child protection policy, a child policy on child friendliness, a whistle-blowing policy, and must allow auditing and inspection. The proof is in the pudding. Accreditation could be comprehensive and significant.

155.

The NSPCC has a child protection sport unit, which advises sporting organisations. Few sporting organisations are registered with the Department for vetting. Of the 82 sporting organisations, few are registered. If a broad system of accreditation were established, parents will ask organisations why they are not accredited, which would be very significant.

156.

The Chairperson: We will stop the discussion there. I thank Mr Reid and Mr Elliott for their helpful presentation and documentation.

Wednesday 18 September 2002

Members present:
Dr Hendron (Chairperson)
Ms Armitage
Mr Berry
Rev Robert Coulter
Mrs Courtney
Mr J Kelly
Ms McWilliams

Witnesses:
Mr P Doran )
Mr B McCaughey ) Probation Board for
Ms V Owens ) Northern Ireland

157.

The Chairperson: I thank Brian McCaughey, Paul Doran and Val Owens from the Probation Board for Northern Ireland for coming to make presentations to the Committee on the Protection of Children and Vulnerable Adults Bill. I hope that you do not mind keeping your presentations short, so that my Colleagues can ask the relevant questions.

158.

Mr McCaughey: On behalf of the Probation Board for Northern Ireland, I thank you for the opportunity to give oral evidence on the Protection of Children and Vulnerable Adults Bill. I am Brian McCaughey, and I am director of operations. Paul Doran is assistant chief officer; he has operational responsibility in the Probation Board, at a senior management level, on all our work on child protection, supervision of sex offenders and policy development on risk and danger. Val Owens is a middle manager based at the Alderwood centre; she is leading on the development of the assessment and management of our work with sex offenders.

159.

I will highlight briefly the relevance and importance of the Bill in relation to the work of the Probation Board for Northern Ireland. We have five main points that we wish to make, as highlighted in our submission on the Bill. No doubt you will have questions for us, and we will deal with those, individually and collectively, as they arise.

160.

The primary aim of the Probation Board for Northern Ireland is to prevent further victims — that is to reduce crime and the harm it inflicts. We do that through the assessment and management of risk posed by offenders, which is especially important with those who have committed sex offences. In all our work we strive to evidence our commitment to partnership, public protection and professionalism. The Probation Board welcomes the introduction of the Bill and supports its objective of strengthening existing arrangements to ensure that appropriate checks are carried out as to the suitability of those seeking to work with vulnerable adults and children.

161.

As an employer of 340 staff, the Probation Board obtained category A clearance for all its employees at all levels including volunteers, which ensures that they have all had a criminal record check and a Pre-Employment Consultancy Service (PECS) check.

162.

Our child protection procedures state that a child’s welfare must be paramount in any intervention and, as such, thus overrides all other considerations and social work principles. Where there is conflict, a child’s interests will always come first. The emphasis of our work on public protection, and our relation to the Bill, is specifically on children and vulnerable adults, and that will continue to be our emphasis

163.

Mr Doran: There is confusion in the community about registers for dangerous people. For example, there is some confusion between the sex offender register, the PECS register, and a register for those who are convicted of other serious offences. There must be an overarching public safety strategy to deal with that issue, because there may be people who are on the PECS register but not on the sex offender register, and vice versa.

164.

The Probation Board is aware that a PECS awareness group has been set up recently. The board welcomes the setting up of the group, which will address some of those issues. The board believes that it would be useful as part of an overall strategy, which highlights the responsibility of parents. No register can, by itself, protect children. We do not want to lull the public into a false sense of security. However, as Mr McCaughey said, the board firmly welcomes the introduction of the Bill. It believes that a public advertising campaign — explaining who can access the register, and in what circumstances — would be of value.

165.

In the proposed legislation, only those people who are convicted of an offence that leads to a sentence of 12 months imprisonment or more are eligible for disqualification orders. However, that is not apparent from an initial reading of the Bill. When the Bill is studied in more detail, it becomes clear that it is designed only for people who are sentenced to 12 months’ imprisonment or more. The Probation Board supervises people who are on probation — who may never have gone to prison — or people who have been in jail for less than 12 months. It might assess certain people in those categories as posing a risk to the public. The board, therefore, wants to deal with clause 23, which states that the qualifying sentence must be 12 months or more. Perhaps it should be extended to include those who are serving community sentences, because — since they must serve their sentence in the community — they pose a potential threat.

166.

Sometimes criminal records do not identify the victims of certain offences, such as abduction or kidnapping, of which kidnapping may be more relevant. The Probation Board believes that it is important that criminal and court records clearly identify whether the victim was a young person or a vulnerable adult, because there may be child protection issues surrounding the conviction for abducting a child, which may not be the case with kidnapping for financial gain. There needs to be clarity in criminal records.

167.

I mentioned briefly that the board has acknowledged the work of the PECS awareness group, which has flowed partly from the work of the Committee and the Assembly. There are issues emanating from that, especially with regard to employment, the ability to access the register, and accreditation, which my colleague, Ms Owens, will address.

168.

Ms Owens: I want to talk briefly about the accreditation process. Other submissions have also dealt with that issue. The Probation Board welcomes a system of accreditation for organisations and groups that work with children. Part of the difficulty with the system is that it does not regulate the many individuals who work with children; that may have been pointed out to the Committee by other groups. I am not sure whether that can be overcome by legislation. The board is concerned that an unintended consequence of the Bill might be to encourage more people into that area.

169.

A range of occupations often involve one-to-one contact, which is a high-risk situation for adults who work with children. Such people would include tutors, music teachers and ice-cream vendors. Those people work in an unregulated area. Through the Probation Board’s work with offenders, it has come across situations in recent years in which people have been convicted while they were employed in such an occupation. It is difficult to regulate that, and I am not sure whether the legislation could. However, it may be possible to include, if not the individuals themselves, the agencies that those people may have to go through in order to procure work of that nature. Children’s entertainers, for example, are often signed up to agencies. An effect of the legislation is that agencies that procure employment for people who are disqualified from working with children could also be subject to prosecution. I am not sure how that could fit in with accreditation. Agencies, such as those that represent children’s entertainers, also need to be accredited. It is important that that be considered.

170.

It is important that there is parity with the Republic of Ireland’s legislation about vetting arrangements, because it is likely that people will seek employment in both jurisdictions in organisations that work with children. The discussion may raise other issues, but those are the main points that I wanted to mention.

171.

Ms McWilliams: You have extensive experience of working with offenders and a body of knowledge that many of the witnesses do not have. It is, therefore, important for the Committee to hear your views.

172.

I am interested in the inclusion of community orders. The Northern Ireland Office (NIO) has not declared an intention to extend Part V of the Police Act 1997 to Northern Ireland. Therefore, criminal records are the only hard evidence of a successful prosecution. However, prosecutions are not always successful. The National Society for the Prevention of Cruelty to Children (NSPCC) provided a scenario of a case in which the child was deemed to be incompetent to give evidence, hence the prosecution was unsuccessful. Yet, had that case been prosecuted in England, there would have been sufficient evidence to issue an enhanced criminal record certificate. That cannot happen here. Will you tell us your views about that?

173.

We are trying to get the NIO, and perhaps police officers, to give evidence. However, in the absence of Part V, or even alongside it, would you favour the inclusion of community orders?

174.

Mr Doran: The principle of child protection is paramount. We are often faced with a dilemma about sharing information with employers. We would rather worry about the risk of proceedings further down the line than put a child at risk. That is the course of action that we have taken in the past, and we have shared information on people about whom we have had concerns.

175.

Having said that, we must respect the rights of the individual and his or her family. We must remember that the majority of sexual offences are committed by people who know the victim. It is never a straightforward matter of the child being attacked by the bogeyman who lives around the corner. Unfortunately, the bogeyman is often someone whom the young person knows. He might be the school caretaker, or whatever.

176.

I support the inclusion of community orders. The courts and the public want to see more effective sentencing, and they want to see that the Probation Board is committed to public protection. The board may be supervising ex-prisoners whom it would not have supervised in the past. It wants to enjoy the confidence of the public and politicians in carrying out that task.

177.

Mr McCaughey: Ms McWilliams referred to hard and soft evidence. All evidence should be considered, if a person is deemed to be a risk to children or vulnerable adults.

178.

Ms McWilliams: Will you elaborate on that, Mr McCaughey?

179.

Mr McCaughey: Ms McWilliams said that in England, if a conviction or a court hearing breaks down because the child is unable to give evidence, the police could provide information about the accused’s background or behaviour. That evidence should be a contributory factor in deciding whether a person should be disqualified from working with young people.

180.

Ms McWilliams: I have been told that the police are reluctant to go down that road, because it might be seen as gathering intelligence for other reasons. It all comes back to the troubles.

181.

Mr McCaughey: We do not view this matter in the context of the past 30 years in Northern Ireland, but in the context of child protection. It comes back to our original statement that the welfare of the child is paramount and should override everything else.

182.

Ms McWilliams: In contrast with probation officers in the rest of the UK, probation officers here felt that their role was affected by the troubles. It is good to know that you have no difficulty with that aspect.

183.

Mr McCaughey: We have no difficulty at all with that aspect. The Probation Board for Northern Ireland works in and with communities in Northern Ireland, and those communities support that work.

184.

Mrs Courtney: The protection of children is always at the forefront of our minds, but even more so in the light of recent high-profile cases. In dealing with the legislation, we must bear that in mind that other families may endure similar abuse.

185.

I wanted to know more about disqualification in other jurisdictions. Ms Owens mentioned parity with the Republic of Ireland and I agree that such parity is necessary. How does the Probation Board access information on nationals from other EU states who are working with children here?

186.

Mr Doran: With difficulty. Our job is to assess and manage risk. We want to be satisfied that a person would pose a risk to children or vulnerable adults. Therefore, we must have confidence in the system in the country of which the person is a national. We have contacted the Conférence Permanente Européenne de la Probation (CEP), a European network of probation services. A recent case involved a person living in Northern Ireland whose first language was not English and who planned to return to their country of origin. With some difficulty, we tried to make contact with the equivalent probation service in that person’s country of origin to pass on our assessment that that person was a risk to children. We have also received similar information from other countries, but on an ad hoc basis. The system only applies when we know that the person plans to leave the country.

187.

I do not want to move into a political arena, but we may not have access to information on soldiers in Northern Ireland who have been convicted or court-martialled in England. They could be involved in duties that may give them access to children or vulnerable adults. Attention must be given to that issue, even within the UK. As regards Europe, we are keen to become more involved with the CEP because it has carried out much work on the management of dangerous people.

188.

Mrs Courtney: Clause 30 states that

"section 28 shall apply in relation to an individual falling within subsection (2) as it applies in relation to an individual who is disqualified from working with children."

189.

Can that clause be tightened up? England and Wales are not included because it is assumed that we are all part of the same jurisdiction. It will be difficult to access the relevant information. How can you ensure that probation officers will be able to contact probation services in a person’s country of origin? Did you succeed in contacting the probation services in the case that you mentioned earlier?

190.

Mr McCaughey: Yes, we did.

191.

Ms McWilliams: You said that information from other European countries is relayed on an ad hoc basis. There is the Criminal Records Bureau in England, a disclosure body in Scotland and PECS here. Do similar organisations exist in Europe, other than the CEP?

192.

Ms Owens: Perhaps I should not be speaking on behalf of the police, but I imagine that they would have connections in Interpol and could access information in that way. However, that information would probably be as a result of a criminal conviction, and I am not sure whether that would include people who had been investigated but not convicted.

193.

Mr McCaughey: We have phone networks and contacts in related agencies. However, we would have to go through the police for a definitive version of someone’s criminal record.

194.

Ms Owens: Several cases have reached the courts, where foreign nationals who come here to seek employment, or who have been recruited, have been convicted. Some of those people have now returned home, and we try to pass on that information and our assessment.

195.

Mr McCaughey: There will be more and more movement across borders in Europe.

196.

Mrs Courtney: We cannot access the registers. There are times, even on holiday, when I am concerned about young children being around adults and nothing is known about the history or background of the adults, and yet intuition tells me that those people cannot be trusted. However, nothing can be done about it.

197.

Ms Owens: People who leave Northern Ireland for more than eight days, or who return to the same location twice a year for a total of eight days, are required to tell the police service where they are going. The difficulty lies in what to do with that information, and whether it should be shared automatically with child protection agencies.

198.

Mr J Kelly: Ms Owens said that there is no parity between this part of the island and the rest of the island, and Mr Doran said that there are circumstances that presume that there is parity with England, Scotland and Wales, yet there are exceptions, such as court-martialling, where there is no access. What is meant by parity? Can a paedophile come from Dublin to Belfast without anyone knowing?

199.

Ms Owens: There are systems of communication, but they are still informal and ad hoc, and based on procedures that individual agencies have developed. I was referring to the ability to access an equivalent of PECS and criminal records in the Republic for people who come to Northern Ireland and vice versa, so that if someone from Northern Ireland goes to the Republic, the Republic can access PECS and criminal records here. We must ensure that there are no loopholes.

200.

Mr J Kelly: Does that not happen at present?

201.

Ms Owens: It does happen, but it is not completely foolproof. It happens when people are aware of a change of location, but that does not happen in all cases.

202.

Mr J Kelly: Mr Doran made a point about not being able to access information.

203.

Mr Doran: Soft information refers to the police having concerns about an individual. For example, the PSNI may not be able to bring charges against a soldier who had been court-martialled in England and found not guilty. In England there is still a question about the power to put that person on a register. However, that power does not exist in Northern Ireland unless a person is employed by an agency that has grounds to dismiss him.

204.

I want to emphasise one point: The register itself will not protect children. The parental responsibility remains with regard to holidays and so on. The register should never be seen as the panacea for child protection.

205.

Mr McCaughey: No piece of legislation could, or should, absolve parents from responsibility. Equally, however, parents must be supported in that responsibility.

206.

Mr J Kelly: On the question of downloading child pornography, is there a distinction between those who download it, perhaps for distribution, and those who commit an offence against a child?

207.

Ms Owens: Not in the sense of a child protection agenda.

208.

Mr J Kelly: Is one less culpable than the other?

209.

Ms Owens: We do not go into culpability or league tables. The bottom line is whether the person presents a risk, and the answer is yes. That is linked to a point concerning legislation on disqualification. I understand that there is a process, through a social care tribunal, where someone who was a young person at the time of disqualification can be reviewed after 10 years.

210.

Comments were made in that process, but not in the legislation, about the risk having passed. I am not happy about that. In no situation could it be said, in respect of that type of behaviour, that the risk had passed with the passage of time. People are convicted at pensionable age for sexual offences. It might be important that any review procedure make it clear that if an individual applies for a review there should be an update of the risk assessment.

211.

Mr J Kelly: Do you mean across the board? The reason I asked the question was because an individual in my own area was arrested and sentenced for downloading child pornography. The debate locally was that downloading child pornography was not as bad as participating in it.

212.

Ms Owens: It is not possible to know the risk until details are known of how long someone has been engaging in that behaviour. Sometimes what appears at the surface is not everything that has gone on.

213.

Mr J Kelly: No one will ever know how long it has gone on.

214.

Ms McWilliams: There is a concern regarding clause 21. In respect of an offence committed when someone is under 18 years of age, a person will be disqualified only if there appears to be a likelihood of further offences being committed by the individual.

"An order shall not be made under this section if the court is satisfied, having regard to all the circumstances, that it is unlikely that the individual will commit any further offences against a child."

215.

The words "it is unlikely" concern me. Should we consider deleting them because they allow a wide-open interpretation? How is that decided, when there is already a behaviour pattern?

216.

Mr McCaughey: It could, perhaps, be reversed to read: "An order will be made in this case unless it is proven".

217.

Ms McWilliams: That puts it into the negative.

218.

Ms Owens: It is very difficult. Such a judgement could not be made at that stage of the court procedure, because the assessments carried out will not have reached the court.

219.

Ms McWilliams: Could we perhaps consider drafting something of that sort when we come to it?

220.

Ms Armitage: Where entertainers are concerned, the situation is not as bad; usually a group of children is present. Home tutoring, however, concerns me. That is dangerous. Children go for home tutoring after school to a house where perhaps only the tutor is present, and are there for two hours. Although that situation is on our own doorstep, we seem unable to check it.

221.

Ms Owens: Oliver Brannigan, the chief executive of the Probation Board for Northern Ireland, has discussed this issue recently, and he suggested that self-employed people could carry a licence.

222.

The Chairperson: Without that, parents have no way of knowing about that person’s credentials.

223.

Ms Armitage: Perhaps such people should register as a tutor. Tutoring is popular, and dozens of children receive it. That problem has been left wide open.

224.

The Chairperson: Ms Armitage has made a good point.

225.

Mr McCaughey: Parents are aware of tutors who have criminal convictions for offences against children, and they continue to send their children for music lessons and so forth. It is known in the community that that individual served a period of imprisonment for those types of offences. When the Committee is considering legislation, I urge it to remember that the behaviour of parents and others must match their knowledge.

226.

Ms Armitage: That is very difficult, because when the child goes home, he or she may not discuss what happened in the previous couple of hours, because children often do not do that.

227.

Mr McCaughey: People’s involvement in, and conviction for, such crimes and their subsequent release is well-known in communities. Others are informed through word of mouth and the local newspapers. Parents make choices based on that information.

228.

Ms Armitage: That is correct if those people have been convicted, but they may continue to commit offences. Parents have responsibilities, but this could be a problem. Tutoring is very common, and the children go in and shut the door and are out again in two hours.

229.

The Chairperson: We shall wind up the discussion. I should like to thank the Probation Board for Northern Ireland for their documentation and presentation and for answering our questions.

Wednesday 18 September 2002

Members present:
Dr Hendron (Chairperson)
Ms Armitage
Mr Berry
Rev Robert Coulter
Mrs Courtney
Mr J Kelly
Ms McWilliams
Ms Ramsey

Witnesses:
Ms Maggie Smith ) SSAFA Forces Help

230.

The Chairperson: I welcome Ms Maggie Smith from Soldiers, Sailors, Airmen and Families Association (SSAFA) Forces Help. Please make a presentation about SSAFA and the Committee will then ask you some questions.

231.

Ms Smith: Thank you for inviting me.

232.

I am here because there are gaps in the protection of children who are from military backgrounds, and I am interested in the impact that those gaps have on Northern Ireland. I began social work late in life, when I did a diploma in social work aged 42. At that stage I had four children, who were aged from two to 18. I count myself as one of the lucky people who managed to have three children at first, two girls and one boy, and, ten years later, I had one of life’s little surprises. That gave me a good lead into the field, as I had a real interest in the protection of children and a desire to improve their situations.

233.

I worked in childcare in east Belfast for five years, then moved to SSAFA in 1994 as a social worker, and I have been managing the association’s social work department here for four years.

234.

Not a lot is known about the SSAFA social work service in Northern Ireland. The organisation was established in 1885 because families of soldiers who joined the Egyptian Expeditionary Force needed support. It continued as a volunteer group until 1892 when a health visiting service was introduced. It is interesting to note that the first health visitor, under the SSAFA umbrella, was employed in the Curragh Camp near Dublin. The organisation continued to grow from strength to strength, until social workers were introduced in 1963. That was the forerunner of a very strong social work service throughout the world, in Germany, Cyprus and Gibraltar. My employment with the association in 1994 introduced the current network to Northern Ireland.

235.

In my letter, I outlined the difficulties that we face. I am here to see whether we can resolve some of those difficulties. I am interested in the Committee’s views and will try to answer any questions.

236.

Mrs Courtney: The Bill has raised issues about how you can employ people when you know nothing about their backgrounds. You referred to the serious gap in provision in the Bill as regards members of the armed forces. From your work, you may know that certain people are unsuitable for employment, but is it correct to say that their record is not available to any organisations here?

237.

Ms Smith: Yes. The SSAFA social work service keeps records of people known to it. The difficulty is that people in Northern Ireland employing dependants or military personnel may not know that they can access those records through me. We are trying to bridge that gap in knowledge.

238.

Mrs Courtney: Do you want the Committee to let employers know that they can access your service if they want to check someone’s background?

239.

Ms Smith: Yes.

240.

Mrs Courtney: That is good to know. We will consider the matter further.

241.

Ms McWilliams: When I had read your submission, I contacted an organisation to see what happens in cases such as this. In the UK alone, there are three different operations. In England and Wales, the Criminal Records Bureau carries out the relevant checks. The Central Registered Body in Scotland, or Disclosure Scotland, does not have a statutory register such as the one we are about to introduce, but it does incorporate Part V of the Police Act 1997, which makes it different again. In Northern Ireland, the Pre-employment Consultancy Service (PECS) will have a statutory register, but does not incorporate Part V of the Police Act 1997.

242.

Ms Smith: We are not registered with PECS as yet.

243.

Ms McWilliams: I suggest that the Committee writes to the three-bureau implementation group, which is apparently going to take on the co-ordination of these bodies and Maggie’s work. As I understand it, if a member of the armed forces has a criminal conviction, your organisation would hold that information. However, if a serious offence is committed, the armed forces have their own procedures.

244.

Ms Smith: That does not happen in all cases. Any member of the armed forces can come before a civilian court, and, in such a case, proper records would be kept. The court martial system is different, and I am not convinced that there is a way of tracking it. For example, I do not know whether there is a link between the records of members of the armed forces convicted in Germany, and the records of members of the armed forces who serve here.

245.

Ms McWilliams: Apparently, there is no link. If an offence has been committed against a child outside the armed forces and the parent takes a prosecution to the criminal courts, the accused will receive a criminal conviction in our criminal courts that will ensure that he or she is registered on the sex offenders register, and, later, I assume, on the Pre-employment Consultancy Service’s register. Please explain what happens if the same offence occurs within the