Briefing Paper

Report on the use of Powers under Section 12 of the Child Care Act 1991 – published 29th May 2017

Content and Importance of the Report Prepared by the ISPCC

  1. Summary

The Section 12 Audit report published on Monday 29th January is of an audit commissioned by An Garda Síochána of the use of the child protection powers afforded to it under the Child Care Act 1991. The report is of enormous significance, is conducted in a robust and thorough manner by the Special Rapporteur for Child Protection Dr. Geoffrey Shannon and demonstrates clearly the need for significant change in our child protection systems, including the introduction of comprehensive 24hour social work services.

The report finds multiple and grievous failures in Ireland’s child protection system. The ISPCC considers this report to be ground breaking, and in its importance on a par with such reports as the Report of the Independent Child Death Review Group and the Ryan Report.

This report documents grave failings in Ireland’s child protection system, including

o A lack of adequate out-of-hours social work services, including lack of access to case files, to enable effective decisions about children’s safety to be taken in an informed way o A lack of reliability of data a captured on the system in relation to instances of section 12 removal of children o A lack of adequate training, resourcing or support for Gardaí in exercising their statutory power to remove a child at risk of harm o Lack of clarity around the different roles and responsibilities of both statutory bodies (Tusla and An Garda Siochána and low levels of meaningful communication between agencies involved in child protection: “In the absence of such cooperation and coordination, the very real potential exists that services designed to ensure children’s welfare and protection at a time when children are in most need of it will themselves cause further trauma…” o In the majority of districts, use of the Garda station as the ‘immediate place of safety to which a child is brought’; going against international good practice o Use of private fostering service providers without a clear statutory basis for this; in some cases, refusals to accept placement of a child and no available out of hours service with a statutory obligation to take a child into care.

Recommendations: There are 17 recommendations in the report, which include the following

  • A social work service that is directly accessible to children or families at risk outside of office hours should be developed as a matter of priority, to ensure a comprehensive and unified child protection system.
  • Specialist child protection units within an Garda Síochána should be established on a national basis.
  • Consideration should be given to having social workers assigned to specialist child protection units.
  • The legal framework applying to emergency placement with private providers should be clarified, to remove any ambiguity as to the standards to be applied in respect of such placements, particularly in cases where children have emotional and behavioral problems.
  • Comprehensive training on child protection should be provided as part of the Garda training programme, reflecting the current law and international best practice.
  • All Garda vehicles should be equipped with child safety belts and car seats.
  • A laminated card outlining the key features of section 12 should be furnished to every Garda.

The report even provides in its appendices examples of how the PULSE system should be amended and the laminated card information that should be provided to all Gardaí to assist them in exercising their powers.

Actions Required

Immediate action is required to ensure that these failings in our child protection systems are addressed immediately. The ISPCC is calling for the following immediate actions to take place:

  • The Government must immediately recognise the national importance of this report and institute a fixed-term taskforce, including the Department of Justice and the Department of Children and Youth Affairs, led by a designated senior member of Government and with support from Department of An Taoiseach staff, to lead the development of the initial response to this report
  • The Garda Síochána must commit to implement the recommendations of this report in full
  • Tusla must now recognise the fact that 24-hour social work services are required and to be adequately resourced to provide a directly accessible comprehensive out- of-hours 24-hour social work service
  • A full response to this report with a detailed action plan must be provided to the Oireachtas within two months of today.
  • A full plan to implement the recommendations of this report within one year should be published within six months of today.
  1. The Importance of this Report

This is believed to be the largest worldwide audit on the exercise of a police force of its child protection power. It is the first time, in the history of the state, that such an audit has been undertaken. Its size and scope, and the rigour applied render the report exceptional.

  • In child protection terms, it is a modern Irish scandal- i.e. it does not deal with acts of historic abuse or cruelty- rather it deals with recent cases- the majority of case studies in the report relate to people who are still children today- in some cases, very young children.
  • The audit incorporated a number of different stages to ensure it was a comprehensive review of Section 12 powers. It did not merely look at cases over a short space of time- access to PULSE system enabled analysis of quantitative data from 2008 onwards to establish patterns, highlight practices and clarify the circumstances of its use. In addition, an in-depth focus was placed on qualitative data from the full 12 months January-December 2014. In addition, the audit included an evaluation of instances of section 12 in a full calendar month in 2015, conducting interviews with members who exercised their power during that month- September.
  • As the report says, ‘No study into the use of section 12 the frequency with which it is employed, and the nature of cases in which it arises has ever been carried out in this jurisdiction’, and ‘it sought to establish on a comprehensive national scale the actual work practices regarding section 12 across the country, reviewing data gathered in the entire jurisdiction’.
  1. What is Section 12 and why is it important?
  • Section 12 of the Child Care Act 1991 gives exceptionalpowers to Gardaí to remove a child from the care of his or her family where the Garda believes ‘there is an immediate and serious risk to the health or welfare of a child’, and where the Garda believes that the protection of the child could be at risk by waiting to seek an emergency care order- which is a Tusla power.
  • Section 12 powers are unique for several reasons (1) in section 12 a Garda is operating in circumstances that are time pressured (2) The power is exercisable on the judgement of the Garda alone and require a high level of professional judgement from Gardaí. (3) The standard of ‘immediate and serious risk’ is a high standard to be met- therefore Gardaí have to be able to establish an immediate and serious risk. (4) Section 12 is important because it gives real and very substantial child protection powers to the police- i.e. it gives powers on child protection to another arm of the state, in addition to Tusla, the Child and Family Agency. The Gardaí are the only other state organisation with these kinds of powers.
  • It is extremely important that Gardaí have these powers. As the report states, ‘some parents or other acting in loco parentis, for various reasons fail to protect their children and it is then the responsibility of An Garda Síochána to protect those children by removing them from their care’. This is a critical point- the report outlines 91 individual cases where children were at immediate and serious risk and Section 12 was invoked. Each of these children required the best possible protection.

4. The Report’s Key Findings:

Re-traumatisation

  • The overwhelming finding in this audit is that Garda members commit great efforts to treating children sensitively and compassionately when that child has been removed under Section 12. Gardaí are concerned to ensure the child’s experience in Garda care is not traumatising.
  • However, despite these attempts the report finds that the lack of a comprehensive out of hours social work service, which means that children are sometimes held in Garda stations or hospitals following their removal from home does in fact re-traumatise children at a time when they are deeply vulnerable.
  • In the conclusions the report states ‘Garda members receive no guidance on how children should be treated when in an environment such as a Garda station to avoid greater traumatisation. Combined with the general absence of training, this leaves children at high risk of further traumatisation following section 12 removal.’

Inadequacies in the PULSE system

  • The PULSE system was not able to provide a consistent and accurate picture of Section 12 use by members of An Garda Síochána. Months of repeated inquiry found numerous gaps, flaws and variations in the data captured and saved on the PULSE system in relation to instances of Section 12 removal of children.
  • According to the report, ‘the review of all data provided by An Garda Síochána disclosed a total of 560 valid incidents for 2014 of a total of 595 recorded incidents. It should be noted that this figure differed from the official figure furnished by AGS of 577 incidents in 2014.
  • In effect this means that the audit could not establish in its entirety the number of children impacted by Garda use of Section 12 – and could mean that some children are not recorded on the system. That is deeply troubling, given the vulnerability of these children- i.e. children who were at ‘immediate and serious risk’.

Use of Section 12

  • The audit found no evidence that Section 12 is being used in an over zealous manner by members of An Garda Síochána. ‘Insofar as the information available or provided enabled the audit to determine, all cases examined involved an appropriately restrained use of section 12 powers by respondents.’
  • According to the report, Members of AGS do not exercise their powers lightly... however, in some cases ‘Gardaí are uncertain about certain specificities of their role and powers in child protection ...often unsure of the legal boundaries of this role.’

Lack of knowledge in child protection/ lack of training

  • 54% of those who completed the survey as part of the Audit said they had not received training in child protection
  • 77% felt they do not have sufficient training in child protection
  • 241 out of 460 said they did not have training documentation available to them in the performance of their child protection powers
  • 73% said they did not receive training in cultural sensitivity
  • 'Appropriate training in child protection is essential for members of AGS to have the capacity and competence to critically evaluate circumstances suggesting a risk to the child, in a manner that is sensitive to both the rights of the child and the parent and also the risks associated with the removal of the child'.
  • 'Beyond basic training at Templemore, most of the respondents said they did not have any training in child protection' ... for a large number of respondents, this 'on the job' learning was the totality of their child protection training.
  • One member of Gardaí said 'he did not feel adequately trained to perform a child protection role' ... he said that he could exercise a dramatically intrusive power into the private life of a family, whereas professionally qualified social workers were required to apply to a court to exercise emergency powers'
  • 'On Children First training specifically, most respondents had little or no knowledge of it'.... 'his only dealings with such guidelines were when his Sergeant referred him to 'the manual'.
  • The findings in the interview stage mirror those in the quantitative stage- Gardaí who had some training felt they didn't have enough... while a substantial number of those with no training felt they did have enough.

Interagency cooperation

  • The report’s conclusions on the relationship between the two state agencies responsible for the protection of children, are extremely concerning It describes as ‘failings’ the low level of joint training on child protection between Gardaí and Tusla social workers.
  • A key theme returned to again and again in the report in relation to information sharing and communication is that 'Notification is not communication'. The report’s findings indicate that notification systems are superficial, ineffective and under resourced. On a culture of perceived accountability, One Garda participant noted 'it's a paper exercise'
  • ‘'review of the data shows in many cases a difficult working relationship between members of AGS and Tusla...in many cases, entries on PULSE show attempts on the part of members of AGS to follow up with regard to children ... with varying success'
  • Only 23% of Gardaí surveyed, 23% said they consulted with Tusla before invoking Section 12, but 16% said they consulted with a private provider which provides emergency placement services. 62% of those who wanted to consult and were unable answered that there was no one available at the time. 26% similarly detailed specific reasons why no one was available most of which centred on the incident taking place outside of social worker office hours.
  • It is important to note that Gardaí aren’t required to consult with others when exercising their powers, but the figures above indicate lack of consultative/cooperative practice by two key agencies.
  • There is some evidence in the report, and a report of a perception among Gardaí, of Tusla social workers delaying action until after hours to force the Gardaí to use their powers, as they provide a 24-hour service.

- From interviews with Gardaí re dealing with Tusla, the following issues emerged…

  • The majority had difficulty contacting social workers immediately
  • Some respondents were highly critical of the quality of communication and engagement of the out of hours service
  • The absence of an out of hours service for consultation was of concern to a number of Gardaí o Personal relationships are critical, according to respondents o Responses strongly suggests that where interagency cooperation exists at all, it is largely confined to members in higher levels of the Garda hierarchy.
  • Example 90 and 91 provide very serious examples of a social worker refusing to take a child without section 12 being invoked, which is not in keeping with protocol.

The ISPCC considers that it is astonishing and deeply frustrating to find that years after the Kilkenny Incest case, the Ryan Report, the independent review of Child Deaths among others that Dr. Shannon must raise major issues with interagency cooperation, ‘... a greater level of cooperation and communication should be put in place... and a unified approach to the protection of children ... to bring the Irish child protection system in line with international best practice’

Behaviour of social workers towards Gardaí and their Section 12 powers

  • Example given: Parent abandons the child in a Tusla office after making threats that she would physically harm the child. This was followed by a standoff between the respondent Garda and the social workers over who should take responsibility for the child. The respondent explained he felt he was put under significant pressure by the social workers to exercise section 12 as the incident occurred towards the end of the normal working day, and the social workers did not want to apply to take the child into care under section 13 of the Child Care Act 1991 past their standard working times.
  • 'the respondent in that case echoed perceptions expressed repeatedly throughout the interview stage that social workers regularly delayed dealing with a case until close to the end of their working day to force a Garda intervention'....
  • 'There is a persistent perception among a number of Garda respondents that Tusla social workers sometimes delay addressing a particular risk to a child, in order to force the involvement of AGS in this case, due to the organisations 24 hour operational basis'

Lack of Garda access to information

  • In terms of section 12, Gardaí have a separate statutory risk assessment role and responsibility. They must make an assessment of their own. To undertake this role, they should have access to information – the report found that the current system of cooperation in sharing information is not enabling this approach.

Impact of Section 12 powers on Garda resources

  • In one instance, a case required the majority of the station’s resources, including two available squad cars, for a number of hours, on a busy weekend evening. This resulted in a number of planned operations, such as alcohol breath test checkpoints being cancelled.

Lack of specialist child protection personnel in An Garda Síochána

  • The Report notes how in research stages members of An Garda Síochána emphasised the lack of an appropriately trained and specialist child protection unit, as being a desirable resource. There is a strong argument for it specialist units to be co-located with social workers from Tusla to enable sharing of information and practice. There is significant practice experience outside of Ireland in this area, and the report points to practice in New York in this area. Practice in Northern Ireland exists in relation to co-location of professionals in the field of child trafficking.
  • The report itself says the following ‘It is hoped that child protection will achieve a broader organisational relevance within AGS and that mature critically reflective and transparent approaches to issues such as risk decision making and cultural sensitivity will emerge.’
  • The report recognises the centrality of children’s rights: ‘Given the express constitutional status of children's rights in the Irish legal order, it is an opportune time to weave the constitutional rights of children into operational guidance for policing.’

Lack of early intervention

  • ‘Numerous instances of children being subject to repeated removal.... this evidence suggests systemic failings with regard to the child protection systems in Ireland. There were also multiple examples in each stage of the audit highlighting chronic systemic failures to help children with challenging behaviour before the involvement of AGS.’

Lack of a 24-hour social work service

  • 71% of Section 12 incidents took place out of hours, either during weekdays (44%) or weekends (26%)
  • In 41% of cases, the child is brought to a Garda station... in 23% a hospital is the designated place of safety. Another case of a child where section 12 was invoked, was taken to hospital by Gardaí on advice of social workers. Two hospitals refused to admit the child... child ultimately returned to the father....
  • Example 82- a private provider refusing to take a child... according to notes 'out of hours social work' could not help... ' question must be asked as to the role of private providers and the extent to which they can refuse to care for a child'
  • It does not appear that Gardaí were accompanied by social work in 340 incidents (60%) in 2014. From the ISPCC’s understanding of how social work services work in other jurisdictions (e.g. Northern Ireland) it is unusual for PSNI to remove a child from home without social workers being present.
  • Asked if out of hours had been available would they still have invoked section 12, 43% of respondents said yes 38% weren't sure/ did not know, 6% said no.
  • The issue of out of hours services came up in Garda surveys… All respondents said an out of hours service was essential. For the majority of respondents who did not have an out of hours service available to them, A private provider appears to operate as the de facto out of hours social work service for AGS.

Lack of appropriateness of initial place of safety