THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

CHILD SEXUAL ABUSE

August 1989

IRELAND

The Law Reform Commission,

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1989

First Published August 1989

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4 January 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General thirty Reports containing proposals for reform of the law. It has also published eleven Working Papers, one Consultation Paper and Annual Reports. Details will be found on p 230.

The Commissioners at present are:

The Hon Mr. Justice Ronan Keane, Judge of the High Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate

Professor of Law, University of Dublin;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Psychologist,

Eastern Health Board; Research Associate, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

William Binchy, Esq., B.A., B.C.L., LL.M., Barrister-at-Law, is Research Counsellor to the Commission.

Ms. Grainne de Burca, B.C.L., LL.M. (Michigan), Barrister-at-Law, Ms. Rachel Hussey, LL.B., Barrister-at-Law and Ms. Una O Raifeartaigh, B.C.L. are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green, Dublin 2.

Telephone: 715699

INTRODUCTION

1.

On the 6 March 1987, the then Attorney General, in pursuance of section 4(1)(c) of the Law Reform Commission Act 1975, requested the Commission to formulate proposals for the reform of the law in a number of areas. Among the topics was:

In response to this request, the Commission submitted a Report on Rape and Allied Offences to the Attorney General on the 3 May 1988. This Consultation Paper embodies the results of the Commission's examination of the second aspect of the topic, i.e. the sexual abuse of children, and contains provisional recommendations for reforms in the law.

2.

In the course of their lengthy examination of the topic, it became obvious to the Commission that the issues raised were by no means confined to the criminal law, but extended over a wide area of law, both civil and criminal. This Paper is, accordingly, divided into three sections, the first relating to the civil law generally, the second to the criminal law generally and the third to the other aspects of the law not dealt with in detail in the preceding parts. The section dealing with criminal law in turn is divided into two broad sections, the first dealing with substantive offences and the second with relevant aspects of the law of evidence. Although the Paper attempts to address most of the more important issues of law reform it cannot pretend to be comprehensive. For example, it has not been possible to address in detail the difficulties that arise where allegations of child sexual abuse are made in the course of custody disputes between parents. The Commission would, nevertheless, welcome views on this and on other areas of possible reform which may have been omitted.

Attempts to reform the law in other jurisdictions, particularly in relation to criminal offences and the law of evidence, are examined in detail. The Commission has sought to bring forward the widest possible range of options for discussion in the more complex and sensitive areas.

The Paper does not embody the Commission's final proposals to the Attorney General for reform in the existing law. The object of the Paper is, rather, to stimulate reaction among interested sections of the public to the Commission's initial and tentative conclusions. When these reactions have been carefully assessed by the Commission, they will be in a position to present their final report and proposals to the Attorney General. In order that the Commission's final report may be available as soon as possible, those who wish to do so are requested to make their submissions in writing to the Commission not later than 22 October 1989.

Extent of the Problem

3.

In the past decade, sexual abuse of children has emerged as a major social problem. In the U.S., Canada, the U.K, Ireland and other countries, there has been an unprecedented rise in official reports of child sexual abuse. Official reports, however, are generally regarded as a significant underestimate of the actual problem.

Of the cases that are detected or reported, only a minority result in the laying of charges by the police. And of those cases, a smaller fraction still end in the conviction of the offender. The majority of current cases that are detected and reported are dealt with by the child health services and other community agencies. In recent years in Ireland there has been a steady and often dramatic increase in the number of cases reported to health boards. The number of confirmed cases rose from 33 in 1984 to 456 in 1987. Legal action is taken only in a minority of cases and most frequently involves civil proceedings.

There is a firm and broad consensus that the number of officially reported cases of child sexual abuse does not accurately reflect its true level of occurrence. There is little agreement, however, on estimates as to what that level is, i.e. what the ratio is between unreported and reported child sexual abuse. A more detailed discussion of the extent of the problem internationally is contained in Appendix I. Such inadequate data as exist on the incidence of child sexual abuse and reporting in Ireland are reviewed in chapter 3 of Report of the Child Sexual Abuse Working Party, published by the Irish Council for Civil Liberties earlier this year. Until more reliable and comprehensive information is available, the true extent of child sexual abuse in Ireland will remain a matter of speculation. Some indication of the scale of the problem was provided by a pilot survey on “Child Sexual Abuse in Dublin” conducted by the Market Research Bureau of Ireland in March 1987 for Radio Telefis Eireann and the Sanctuary Trust. Six per cent of a sample of 500 Dublin adults between the ages and 18 and 44 admitted to having been sexually abused as children.

The Approach of the Law Reform Commission

4.

The Commission has proceeded on the basis that no single source should be exclusively relied upon from which to derive general findings about the nature of child sexual abuse and the precise requirements of law reform. The issue of child sexual abuse transcends institutional and professional boundaries. It is essential that it be approached from a balanced interdisciplinary perspective. Failure to adopt such an approach is likely to result in distortion, and may lead to proposals to reform the law that are superficial.

The Commission recognises that a solid foundation of fact is a prerequisite to the reform of the law in relation to child sexual abuse. We have tried, within the financial and practical means at our disposal, to obtain as much basic and applied data on child sexual abuse as possible. As well as collecting relevant research information, the Commission has sought opinions and endeavoured to gain some practical experience on such matters as the credibility of children as witnesses, and children's reactions to court involvement.

We have attempted to identify the practical problems experienced by victims and their families, as well as by health and social workers, the Gardai, the DPP and the courts. To this end, we have allied our research into substantive and comparative law reform with consultations with practitioners in the areas of health, child care and law enforcement, as well as with the families of some victims of child sexual abuse. We have also requested and received a number of letters from individuals directly affected by child sexual abuse, and briefs from professional associations and other interested groups.

The Role of the Law – Children as a Special Class^*

5.

The law has traditionally treated children as a special class which competed with other social interests for legal protection, e.g. the autonomy of the family and the integrity of the trial process. The way in which these different interests have been balanced has meant that children are not always optimally protected against child sexual abuse.

The special legal status of children is based primarily on three considerations: the special needs of children who because of their age and immaturity are dependent on adults to grow and develop; the vulnerability of children to older and more powerful adults; the actual or presumed inability of children to perform certain legal acts.

These considerations have found legal expression in both the removal from the child of legal powers otherwise enjoyed by adults or conversely the imposition of special duties or responsibilities towards the child on members

of society generally. This special legal status of children is intended to promote the welfare and protection of children in two complementary ways. The legal incapacities and disabilities which the child possesses are imposed primarily for his or her own protection, while the various legal duties and responsibilities imposed on others towards the child put the protection of the child on a legal basis and thereby strengthen them. Examples can be found regarding the special legal status of children in relation to education, employment and mental care. With regard to child sexual abuse, the special legal status of children raises a number of very complex and difficult issues. Two in particular stand out:

The Role of the Criminal Law

6.

The criminal law has a number of important functions to perform in the context of child sexual abuse. The various criminal offences which prohibit child sexual abuse express society's judgment about what is and what is not tolerable behaviour towards children. The attachment of often serious penalties to different forms of abuse is intended to deter such conduct, to strengthen the taboos surrounding them and to reflect the gravity with which such conduct is viewed by society. If the criminal law does not operate effectively in this area, then not only is its deterrent and educational role diminished, but the genuineness of society's commitment to combat child abuse is thrown into question, affording a source of comfort to those who abuse children and causing a sense of betrayal in the victims of abuse.

There is another particular reason why it is important that abusers should know that society will hold them responsible for their actions. One of the most damaging effects of child sexual abuse is the sense of guilt which may be felt as a result by the abused child, and one of the most important and yet elusive objectives of intervention is to persuade the abuser to accept responsibility and thus help restore the victim's sense of worth. The invocation of the criminal process and criminal sanctions may often play a vital role in achieving this objective.

Prosecution Rates

7.

For these reasons it is particularly worrying that, in our discussions and researches, we have encountered a widespread view that the criminal law is

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not working effectively, that too few cases are being brought forward for prosecution and, that in the case of intrafamily abuse against very young children, criminal prosecution is usually pointless. The statistics tend to confirm these beliefs. While the number of cases of child sexual abuse coming to the attention of health boards has increased dramatically over recent years, the number of cases being referred to the Director of Public Prosecutions and the number going forward for trial have remained relatively low.

Part of the Commission's task has been to identify factors which have contributed to the apparently low rate of prosecution. Where the causes are legal, we have tried to suggest appropriate reforms. But attitudes also play an important part. It is fair to say that we have encountered a good deal of scepticism, not only about the efficacy of the criminal justice process, but also about its appropriateness in responding to child sexual abuse.

Health and child care professionals often perceive a conflict between the requirements of therapy and the demands of the criminal justice process. Where young, vulnerable children are involved, it is natural that the caring professions should wish to place the interests of the individual child before the public interest in securing the conviction of child abusers. This conflict is sometimes based on a belief, which may not always be well-founded, that a young child may suffer further damage or re-victimisation within the criminal justice process. There is also a widespread belief that the criminal justice system is so slow and leans so heavily in favour of the accused that the chances of conviction are slight. In addition, those charged with the responsibility of caring for children fear the loss of control which comes with the institution of criminal proceedings, which appear to take on a life of their own. We have found that these attitudes are sometimes shared by the parents of abused children. They may decide, despite a strong wish that the abuser should be brought to justice, that it is more important to protect their children from the stress and anxiety which they associate with the criminal justice process.

The perception of the criminal justice process on which these attitudes are based is unfortunate, but cannot be ignored if we wish to make the system more effective. Many of the reforms which we will be proposing are designed to reduce the stress to the child within the criminal justice process and to increase confidence that the criminal justice process can work with reasonable speed and sensitivity.

The prosecution rate is also affected by the attitudes of officials within the criminal justice process itself. There appears to be some scepticism among the Gardai and within the office of the Director of Public Prosecutions about the prospect of a successful prosecution where the principal evidence is the uncorroborated story of a young child. Again, if the criminal justice process is to work effectively, this scepticism must be addressed. Where it is founded on myth, those myths need to be dispelled; and where it is founded on a

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realistic assessment of the limitations of the present law, those limitations need to be examined. We have tried to do the latter by re-assessing the rules relating in particular to the competence of young children to give evidence, and to the various ways in which the young child's story may be presented to a court and the rules relating to corroboration.

The Rights of the Accused

8.

While it is right to try to reform the criminal justice system in a manner which will reduce distress for the child complainant and facilitate the presentation of the child's story, the right of the accused to a fair trial must be respected, and in particular his or her basic right to confront and challenge the evidence against him or her. It must also be remembered that the benefit of any doubt will be given to the accused. This is a principle which we were at pains to point out in our Consultation Paper on Rape, and it is worth quoting a passage from the introduction to that Paper which is equally applicable to child sexual abuse:

One consequence of this emphasis within the criminal justice system is that the criminal law can never offer total protection or complete satisfaction to the victims of child sexual abuse. The criminal process cannot guarantee that all child abusers will be brought to justice. We have stated why we think it important to improve the efficiency and sensitivity of the criminal process, but we must also recognise that some of its limitations are unavoidable so long as society wishes to preserve the existing balance within criminal process. It is therefore to the civil law that we must turn to provide the primary means of protecting children at risk.

The Role of the Civil Law

9.

The civil law defines the circumstances in which the State may step in, if necessary against the wishes of the parents, to protect children at risk. The forms which State intervention may take vary considerably from country to country. They range from emergency care orders, abruptly separating a child from his or her parents, to a supervision order enabling a social worker to review the progress of a child in his or her own home. It is generally accepted that society has a duty to protect children who are at risk from sexual abuse. The State's duty is secondary to that of the child's parents, who under the Constitution are the primary educators of the child. The State, through its child care services, may intervene only where parents have failed in their duty to a child or where there is a compelling reason to do so based on the child's welfare. Unfortunately a great deal of child sexual abuse originates within the family, and the source of risk to the child is often the very person in whom the primary Constitutional rights are vested.

In approaching the reform of the civil law, we have tried to steer a path between two extremes. If the law is excessively cautious in its approach to child protection, many children may be left to suffer avoidable abuse. On the other hand, if the law allows State intervention too readily, the impact on family life can be shattering. There is no easy answer as to how this balance should be maintained. The Cleveland episode provided startling examples of the way in which the lives of families may be thrown into turmoil by an over-zealous approach to child protection. At the same time many cases may be cited where long-term damage to children might have been avoided if society had been more alert to the problems of child sexual abuse.

General Principles Underlying the Civil Law

10.

The following general principles have informed our approach to the reform of the civil law.

Procedural and Administration Problems

11.

As a result of consultations with various bodies, it became clear to the Commission that a weakness in the existing administrative framework is that in practice there is a lack of clarity about appropriate procedures for determining whether compulsory intervention is necessary, and if so whether it should involve the civil or criminal law, or both. Often the helping services that are available are working in relative isolation. The manner in which the Department of Health Guidelines are implemented varies greatly in different catchment areas. There can be tension and rivalry between different services regarding the provision of services to sexually abused children. There are insufficient resources and facilities available to these services and, while there is often commitment in principle to inter-disciplinary working methods, in practice there is often uncertainty about roles and work practices.

There are also many discretionary decisions regarding the management of child sexual abuse. These critical decisions include whether the incident is reported to the police or not; whether some acts are considered minor or

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serious; whether a full, partial or any assessment is made of the child's complaint, needs, situation etc.; whether care and assessment are provided exclusively by one agency or whether other services are contacted and consulted. As has already been observed, there are also doubts within the child care and health services about whether the criminal law should be invoked at all in the management of child sexual abuse.

The making of discretionary decisions is an inherent and essential feature of all professional work. However, in the absence of clearly articulated standards which are monitored, there is a risk that decisions can be made without full understanding of the child's vulnerabilities and needs.

The Place of Law Reform

12.

The criminal and civil law relating to child sexual abuse can provide part of the framework within which the problem can be tackled. However, it is right to point out that more than law reform measures as such are required. We also need:

There is also a need for a more general understanding at a societal and individual level of what constitutes child sexual abuse and the circumstances which surround such abuse. Thus, the Commission in the course of its investigation of the problem has attempted to review and assemble information on such basic questions as:

This material does not always relate directly to the concrete issues of reform of the law which it is the Commission's task to address. However, it forms important background material against which the relevance and possible efficacy of reform options can be assessed by the various disciplines in the field. It is accordingly reproduced in detail in Appendix I.

Part I: The Civil Law

CHAPTER 1: THE PRESENT POSITION

Reporting and Investigation of Suspected Abuse

1.01

No statute lays down in express terms a duty on any person, private or official, to report child sexual abuse or suspected child sexual abuse. This applies to health care and child care workers, as it does to teachers, friends and neighbours. The criminal law does still contain a little known and seldom used offence called Misprision of Felony, which punishes failure to report the actual commission of certain serious offences (or felonies) such as rape and buggery.¹ However, misprision does not extend to many of the offences relevant in the context of child sexual abuse (i.e. incest, indecent assault, unlawful carnal knowledge of a girl between fifteen and seventeen years of age). It possibly does not extend to felonies disclosed professionally to a lawyer, doctor or clergyman. In Sykes v DPP² Lord Denning conceded that certain relationships, including those of doctor and patient and clergyman and parishioner, might give rise to a claim in good faith that it would not be in the public interest to disclose the felony.³ This concession has been criticised.⁴ The crime of misprision does not extend to a mere suspicion that a felony has been committed.

1.02

The Department of Health has issued Guidelines,⁵ which were updated in 1987, outlining the procedures which should be observed in reporting and investigating abuse or suspected abuse. These guidelines are not legally binding. They make it clear that the person with overall responsibility for monitoring and co-ordinating the management of child abuse cases is the Director of Community Care and Medical Officer of Health or a person delegated by him.⁶ He or she therefore is the person to whom reports of suspected abuse should be made. It is worth quoting the relevant sections from the Guidelines which relate to suspected sexual abuse.

Some other aspects of the Guidelines are worth noting. Emphasis is placed on the need for multi-disciplinary teams in the validation of alleged sexual abuse.⁷ The welfare of the child is seen as the primary concern of all professional staff involved in investigating a case of alleged sexual abuse, though the criminal nature of child sexual abuse is recognised and, together with it, the need to ensure that steps are taken to deter the abuser.⁸ The guidelines also lay down the procedures to be adopted by the various professionals who may become involved in abuse cases, such as community care social workers, public health nurses, general practitioners, hospitals and child psychiatrists. Standardised procedures for the holding of case conferences, which are seen as an essential feature of inter-agency cooperation, are suggested. The person responsible for deciding whether a case conference should be held is the DCC/MOH.

1.03

Although there is no express statutory obligation on any person to report or investigate child sexual abuse, there remains the question of possible civil liability. General principles of liability in tort for negligence and for breach of statutory duty involve the imposition of liability in damages on certain persons in some cases for failure to make such report or investigation. In the absence of decided cases it is difficult to state the exact parameters of this liability, but there is no doubt that in some situations it will be imposed.

The negligent failure by a medical practitioner to diagnose child sexual abuse would give rise to liability for the reasonably foreseeable consequences of such failure.⁹ The question as to when such failure is negligent is largely a matter to be determined by reference to conventional practice within the medical profession, subject to the entitlement of the court to characterise as negligence a universal or customary practice obviously lacking in due care.¹⁰

However, a heavy onus would lie on a plaintiff who was in effect alleging not merely that the defendant was negligent, but that many others who had followed the same practice were also negligent.¹¹

The failure by a doctor to report, as opposed to diagnose, child sexual abuse remains as yet uncharted waters, insofar as civil liability is concerned. The position historically in relation to the law of negligence has been that there is no general duty to take active steps to protect others from harm that might befall them,¹² but that specific relationships give rise to such an affirmative duty.¹³ It seems reasonable to assume that the list of these relationships, like the categories of negligence in general, is not closed. It may well be that an Irish court would hold that the discovery by a doctor that his or her young patient had been sexually abused would impose on the doctor an affirmative duty to take some appropriate steps to protect the patient from further abuse. Case law in other jurisdictions, especially the United States,¹⁴ would suggest that the discharge of such duty would not necessarily consist of reporting the offence; other solutions might be appropriate depending on the individual circumstances.

1.04

The position as regards the Gardai, the health boards and the Department of Health is also unclear. The general trend of the law of negligence would appear to be towards imposing a duty of care arising from the discharge of statutory functions,¹⁵ though the policy considerations which ought to guide the courts in fixing the limits of the duty of care have not been fully explored. Most recently, in Ward v McMaster et al,¹⁶ the Supreme Court held that there was a proximity between the defendant County Council and the first plaintiff which “had its origin in”¹⁷ the Housing Act 1966, whereby in administering a scheme for house loans the Council owed the first plaintiff, as intending purchaser, a duty of care. McCarthy J noted that the Act:

It is possible that the Irish courts would hold that the provision of community care as a statutory function must give rise to an implicit duty of care towards sexually abused children, at all events those coming to the attention of the authorities. It should also be noted that s.3 of the Child Care Bill 1988 makes it an express function of every health board “to promote the welfare of children in its area who are not receiving adequate care and protection,” and in doing so “to take such steps as it considers requisite to identify children who are not receiving adequate care and protection”. The matter, however, is not a simple one. The duty of a health board is not simply

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towards children who are believed to have been sexually abused; it extends to others, including parents of children who have not in fact been abused but who manifest symptoms of abuse. Throughout common law jurisdictions, courts have recognised the multiplicity and potentially conflicting range of duties as being a reason for being slow to impose a single duty of care towards one of the parties.¹⁹ It would, however, be unfortunate if the courts were always to step back from imposing any duty of care on this basis; there is no reason why they should not impose a circumscribed duty that is sensitive to the competing interests involved.

1.05

As well as an action for negligence arising out of a statutory function, the action for breach of statutory duty simpliciter could also be invoked in this context.²⁰ Before imposing liability for such a breach on the professed basis of gleaning the intention of the Oireachtas to confer a civil remedy,²¹ the court must be satisfied that

Other possible avenues for the imposition of liability include damages for interference with the constitutional entitlements of an abused child²² as well perhaps as his or her family members.

Protection in an Emergency

1.06

The Children Act 1908²³ still contains the major provisions for protecting a child who is at risk, whether on an emergency or a long-term basis. These provisions of the 1908 Act are currently undergoing substantial reform in the Child Care Bill 1988. At present, it is ss 20 and 24 of the 1908 Act which set out emergency procedures for providing immediate protection for children (up to fifteen) or young persons (over fifteen and under seventeen) at risk. Section 24 is most often used. It provides for the issuing of a warrant by a District Justice which may authorise a member of the Gardai to search for the relevant child or young person, to enter specified premises (by force if necessary) for that purpose, and to remove the child or young person to a place of safety. The child or young person must then be brought before the District Court, and the Justice may then make a further order committing the child to the care of a fit person. Although any person may commence place of safety proceedings, in practice the applicant is usually a health board, and it is the health board which is generally named as the fit person. The order can only be made if it appears to the District Justice, on the basis of an information sworn usually by a social worker, that there is reasonable cause to suspect that the child or young person “has been or is being assaulted, ill-treated or neglected in a manner likely to cause [him] unnecessary suffering, or to be injurious to his health”, or that one of a list of offences²⁴ has been

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committed in respect of him or her. A place of safety is any Garda station, hospital, doctor's surgery or other place willing to receive the child or young person.

The s 24 procedure may be operated swiftly and on an ex parte basis. In other words it is not necessary to give the parents or guardian notice of the application. For this reason, although it may be used in cases of suspected child sexual abuse, it tends to be used only in exceptional circumstances of risk to the child or young person.

Section 20 of the 1908 Act offers an even swifter protective device for cases where there is reason to believe that a specified offence has been committed. It authorises a member of the Gardai in such case, without first obtaining a warrant from a District Justice, on his own initiative to remove a child to a place of safety pending criminal proceedings against the alleged offender. Section 20 is seldom used. Section 24 is preferred in most cases of emergency intervention where there may be insufficient evidence of the commission of an offence.

1.07

The 1988 Child Care Bill²⁵ proposes to reform emergency care procedures in a number of respects. The circumstances in which a member of the Gardai may, on his own initiative, remove a child (under eighteen) to a place of safety are extended to cases where he or she has reasonable grounds for believing that “(a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, and (b) there is an immediate and serious risk to the health or wellbeing of the child ....”²⁶ A criminal prosecution need not therefore be in contemplation. However, the child or young person may only be kept in the place of safety pending an application to the District Court for an emergency care order which must be sought within, at most, twenty-four hours of the removal of the child.²⁷

An emergency care order may be applied for by a health board, or, by information on oath, any person. It may be granted where the District Justice is satisfied that there is reasonable cause to believe “that there is an immediate and serious risk to the health or wellbeing of a child which necessitates his detention in a place of safety ....”²⁸ The order will authorise a health board to cause the child to be kept in a place of safety for a maximum period of eight days.²⁹ In issuing the order the Justice may also issue a warrant authorising a member of the Garda Siochana to enter premises by force if necessary.³⁰ The application for the emergency care order may be made ex parte.³¹ It is not essential to name the child in the proceedings.³² Where a child is subject to an emergency care order, the health board is obliged as soon as possible to inform a parent or a person in loco parentis, but the District Justice may direct that the location of the place of safety not be made known to the parent or guardian if he is satisfied that the safety and wellbeing of the child requires it.³³

1.08

Another order which can at present be applied for ex parte in an emergency situation is a protection order under the Family Law (Protection of Spouses and Children) Act 1981. A protection order may be applied for only by one spouse in respect of another, and it requires the respondent spouse not to use or threaten to use violence against, molest or put in fear the applicant spouse or any dependant child of the family. The protection order is an interim order pending the determination of an application for a barring order and it is available on the same basis as a barring order, i.e. where there are reasonable grounds for believing that the safety or welfare of the applicant spouse or of any dependent child of the family so requires.³⁴ It may therefore be sought in a case of alleged sexual abuse by a parent against his or her child. Its advantage is that it is available quickly but it does not separate the child from the alleged abuser, nor is it available at the instance of a third party, such as a social worker.

1.09

The jurisdiction of the High Court and the Circuit Court to grant injunctions may also be invoked in cases of alleged sexual abuse. The injunction may require the alleged abuser not to molest the child or it may effect the removal of the alleged abuser, where for example further assaults are threatened. It may be applied for ex parte or on an interlocutory basis. The expense of applying for an injunction, and the problems associated with its enforcement, lessen the usefulness of the remedy, but it may provide a swift solution in certain extreme cases. Its use is not confined to spouses. It may therefore be appropriate where the removal is being sought of a person other than the parent of the abused child, for example an uncle or a sibling.

Care Proceedings

1.10

Care proceedings are at present governed by section 58 of the Children Act 1908. Under that section any person may apply to the District Court for an order committing a child (under fifteen) who is in need of care and protection to an industrial school or to the care of a fit person. The grounds upon which an order may be made are set out in detail in section 58. The ground most frequently used by health boards is that the child “is found having a parent or guardian who does not exercise proper guardianship”.³⁵ In relation to sexual abuse cases, it is relevant to note that a daughter may be the subject of an order under the Act where her father has been convicted of an offence under section 4 or 5 of the Criminal Law Amendment Acts 1885 to 1935 in respect of any of his daughters.³⁶ So too may a child who is under the care of a parent or guardian who has been convicted of an offence under Part II of the 1908 Act or an offence mentioned in the First Schedule to the Act in relation to any of his children.³⁷ Section 58(1) requires that the child be brought before the court.

Most proceedings under section 58 are initiated by health boards, and it is the health board that will usually be named as the fit person. The order may commit the child into care after the age of sixteen. The effect of a fit person

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order is to vest in the fit person “like control [over the child] as if he were his parent”.³⁸

Care Proceedings Under the Child Care Bill 1988

1.11

Part IV of the Bill deals with care proceedings. Sections 15 and 16 are the core provisions. Section 15(1) provides that the court may make a care order where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied that:

and that the child requires care or protection which he or she is unlikely to receive unless the court makes an order under the section.³⁹

In the exercise of its jurisdiction under section 15, the court is to have regard to “the rights and duties of parents, whether under the Constitution or otherwise, and the natural and imprescriptible rights of the child”.⁴⁰

A care order commits the child to the care of the health board for so long as he or she remains a child, i.e. under eighteen or for such shorter period as the court may determine.⁴¹ For the duration of the order, the health board has “the like control over the child as if it were his parent”.⁴²

Nevertheless the health board, for a fixed period or until it otherwise determines, may allow a child committed to its care under a care order to be under the charge and control of a parent or other suitable person.⁴³

1.12

Section 16 deals with supervision orders. Where on the application of a health board, with respect to a child residing in its area, the court is satisfied that one of three conditions identical to those specified in section 15(1) exist – including that the child has been or is being sexually assaulted – and that it is desirable that the child be visited periodically by or on behalf of the health board, the court may make a supervision order.⁴⁴ A supervision order directs the health board to have the child visited on such periodical occasions, weekly or otherwise, as the court may determine, in order to satisfy the board as to the welfare of the child and to give to his or her parents or to a person acting in loco parentis any necessary advice as to the care of the child.⁴⁵

As a general principle, a supervision order is to remain in force for not more than twelve months; it may, however, be extended or discharged before then.⁴⁶

Where a care order is in force, the court may at any time, on the application of the health board, give such directions as it sees fit as to the care of the child, which may require the parents or a person acting in loco parentis to cause him or her to attend for treatment or attention at a hospital clinic or other place specified by the court.⁴⁷ Failure to comply with the terms of a supervision order or any directions given by the court as to the care of the child constitutes an offence.⁴⁸

Where a child is in its care, a health board is to provide accommodation and maintenance for him in any one of the following ways as it thinks fit:

It is not necessary in proceedings under Part IV (for a care order, supervision order or otherwise) for the child to whom the proceedings relate to be brought before the court or to be present for all or any part of the hearing unless the court, either of its own motion or at the request of any of the parties to the case, is satisfied that this is necessary for the proper disposal of the case.⁵⁰ Where, however, the child requests to be present during the hearing or a particular part of the hearing of the proceedings, the court is to grant the request unless it appears to the court that, having regard to the age of the child or the nature of the proceedings, it would not be in the child's interests to accede to the request.⁵¹

Barring Orders

1.13

A barring order, which is provided for by the Family Law (Protection of Spouses and Children) Act 1981, requires a spouse either to vacate or refrain from entering the place where the applicant spouse or a relevant child resides. Only a spouse may apply for such an order, and it is only against a spouse that such an order may be made. The order may be granted if the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant spouse or any child so requires. The District Court has jurisdiction to make an order for up to twelve months, which may be renewed on application. The Circuit Court may make an order for an unlimited time.⁵²

The barring order may in addition, at the court's discretion, prohibit the responding spouse from using or threatening to use violence against, molesting or putting in fear the applicant spouse or any child, and may be made subject to such exceptions and conditions as the court may specify.⁵³

A barring order is not available on an ex parte basis. The respondent must be given notice of the proceedings. In practice it may be three or four weeks before a full hearing takes place. As we have seen, a protection order is available ex parte as an interim remedy, on the same basis as a barring order; it requires the respondent not to “use or threaten to use violence against, molest or put in fear the applicant spouse or the child”.⁵⁴

When a barring or protection order is made, a copy of it is sent, not only to the respondent spouse but also to the Garda Siochana station for the area in which the residence in question is situated.⁵⁵ Breach of a barring or protection order is a criminal offence, and a Garda is entitled to arrest without warrant a person who he has reasonable cause to believe is committing or has committed a breach.⁵⁶

It is clear that barring and protection orders may be granted to protect a child in cases of physical or sexual abuse. Barring orders are most commonly granted in cases of actual physical abuse. However, they are also available to protect “welfare”, and the concept of “welfare” covers “cases of neglect or fear or nervous injury” brought about by the respondent spouse.⁵⁷ In the case of the child the concept of welfare includes “moral welfare”.⁵⁸ Thus sexual abuse which falls short of an assault would provide grounds for a barring order insofar as it constitutes a threat to the child's welfare. In O'B v O'B⁵⁹ O'Higgins CJ accepted the practice of giving the concept of welfare a very wide ambit, but at the same time he emphasised the need to establish that the respondent spouse has been guilty of serious misconduct.

A “child”, for the purpose of granting barring or protection orders, means a child (including an adopted child) of the applicant or respondent spouse, or both, and a child in relation to whom either spouse or both spouses are in loco parentis. The age limit is eighteen, although an order may be obtained to protect a person over eighteen who is suffering from mental or physical disability.⁶¹

1.14

The Family Law (Protection of Spouses and Children) (Amendment) Bill 1987 proposed in section 3 to give the court power to make a protection order as an alternative to, and separate from a barring order. The Bill has not become law and appears unlikely to do so. During its Committee Stage in the Senate, Senator Brendan Ryan moved amendments, drafted by Senator

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Mary Robinson, which would have extended the terms of the Bill to enable health boards (or other designated bodies) to apply for barring orders or protection orders. The idea here was to provide supplementary machinery for excluding a parent (or other resident of the home) especially in cases of child sexual abuse. The amendments were withdrawn on the assurance of the Minister for Justice that these matters could more appropriately be considered in the context of the forthcoming child care legislation.⁶²

FOOTNOTES TO CHAPTER 1

CHAPTER 2: PROPOSALS FOR REFORM

MANDATORY REPORTING OF SUSPECTED CHILD SEXUAL ABUSE

2.01

Should the law require certain persons, such as doctors and other health care professionals, social workers and teachers, to report cases of suspected child sexual abuse to the police or health authorities? Laws of this kind exist throughout the United States of America¹ and in all States in Australia save Victoria and Western Australia.² The types of law in Australia vary widely. In the Northern Territory, for example, the legislation applies to any person, while in Queensland only medical practitioners are required to report. Sanctions range from the complete absence of a penalty in Tasmania to a fine of $1,000 or imprisonment for up to a year in New South Wales.

Arguments in Favour of a Compulsory Reporting Requirement

2.021.

The principal argument in favour of mandatory reporting laws is that they may lead to the discovery by the authorities of some cases of child sexual abuse which otherwise would not come to their notice. In the United States of America, the introduction of mandatory reporting laws, beginning in the early 1960s, was followed by a dramatic increase in the number of reports of suspected child abuse of all kinds.³ One commentator has suggested that mandatory reporting laws, combined with public awareness campaigns, “have been strikingly effective”.⁴

It could be argued that in Ireland the publicity given to child sexual abuse in recent years has by itself resulted in a very significant rise in reporting, with the result that mandatory reporting laws may appear unnecessary. The number of cases of child sexual abuse reported to the health boards rose from 475 in 1986 to 929 in 1987. The number of confirmed cases reported to health boards rose from 33 in 1984 to 456 in 1987.⁵ However, there may yet exist a substantial number of

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unreported cases. A pilot survey of 500 adults carried out by the MRBI in 1987 in Dublin found that 6% admitted to have been sexually abused as children. About one third of the cases could be classified as extremely serious with the majority of the remainder being very serious. The average annual number of children sexually abused for a population of 395,000 was estimated to be 850 (from a group with a twenty-six year age spectrum).⁶ Even the most cautious reading of these statistics suggests that there still remains a significant number of child sexual abuse cases that go unreported.

2.

Mandatory reporting laws can provide a clear structure and legal authority for submitting reports of suspected child sexual abuse. We have been told by a number of persons that the reluctance to report child sexual abuse shown by some professionals working with children derives in part from uncertainty about the legality of so doing or from the fear of facing possible legal action should the report prove unfounded. There may sometimes be other less worthy considerations which result in a preference not to report, such as unwillingness to confront a “distasteful” problem, or to begin a process which may subsequently be costly in time and energy. The Law Reform Commission of Victoria noted that:

To many professionals the most attractive feature of a mandatory reporting law is its “empowering” nature. It relieves them from some of the onus of discretion. A teacher or social worker is in a less invidious position if he or she is able to explain, perhaps to an aggrieved parent, that the making of the report was a matter of legal obligation rather than a purely personal decision.

3.

A mandatory reporting requirement would “denote a public commitment and enable the community to become involved”.⁹ It would amount to a clear declaration by society that child abuse is a matter for social concern and a broad social response.

4.

Other arguments in favour of a mandatory reporting requirement are that it would secure consistency in the management of the disclosure of child abuse;¹⁰ would enable better assessment of the nature, incidence and location of child abuse which would result in an improved provision of services;¹¹ and would provide for shared responsibility in

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managing cases by relieving professionals of the sole obligation to make case management decisions.¹²

Arguments Against Mandatory Reporting Laws

2.031.

The principal argument against mandatory reporting laws is that they may give rise to over-reporting. The American Humane Association has estimated that 59% of reports of abuse (all forms) in the United States are unsubstantiated.¹³ This gives rise to a number of serious problems. Investigation of suspected abuse may often result in serious breaches of family privacy. The child thought to be at risk may suffer from unwarranted investigations or medical inspections. Scarce resources in the health boards may be wasted on investigation of a profusion of reports, and the risk of overlooking serious cases may increase.¹⁴ There are however counter arguments. The phenomenon of over-reporting is associated particularly with expanded or over-broad reporting laws.¹⁵ If mandated reporters are obliged to report potential as opposed to actual cases of abuse, or if the definition of abuse is vague or uncertain, professionals may seek to protect themselves and avoid prosecution or penalty by reporting every possible case of abuse, leaving it to the health board to distinguish between fact and fiction. The answer may lie in ensuring that the definitions of reportable elements of abuse be as specific and as simple as possible.¹⁶ By contrast over-reporting sometimes occurs in jurisdictions where no mandatory reporting laws exist. In this country, in 1987, 456 of the 926 reported cases of child sexual abuse were confirmed. It does not follow that the remainder were unsubstantiated; not all may have been investigated. Nevertheless, the figures suggest a significant number of unsubstantiated cases, despite the absence of a mandatory reporting law. It might even be argued that a mandatory reporting law which offers a precise definition of reportable circumstances may help to reduce the volume of unsubstantiated reports.

2.

The fact that there is little evidence of the sanctions attached to mandatory reporting laws being brought into play has been advanced as an argument against their introduction.¹⁷ We are not impressed by this argument. The fact that a sanction is not invoked does not mean it lacks efficacy. The test of efficacy is the level of reporting not the number of prosecutions. If prosecutions for the abuse itself can be based on the evidence of the children abused, so can prosecutions for failure to report.

3.

A mandatory reporting requirement will be viewed by some as damaging the trust normally inherent in the doctor/patient or other professional relationship. It could discourage some parents from seeking medical attention for their children where they believe that the children's condition might lead the doctor – rightly or wrongly – to conclude that sexual abuse has taken place and thus report them to the

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authorities. A school teacher, if under an obligation to report suspected sexual abuse, would not be able to promise confidentiality to a timid child wavering on the edge of disclosure. Similarly offenders may be reluctant to volunteer for treatment or therapy if they know that their admission may result in legal proceedings. As against this, there is the view that it is wrong for an adult to offer any irrevocable undertaking, especially to another adult, which would make it impossible to take action to prevent further harm to a child who is seriously at risk.

4.

It has been suggested that there is no need for a legal sanction to force professionals to do what is already their professional duty. Dingwall, Eekelaar and Murray, speaking of the position in England, have observed that:

5.

Finally it has been argued that mandatory reporting laws are ineffective because there is evidence from jurisdictions which have accepted them that they continue to experience a substantial problem of under-reporting. In the United States of America the Department of Health and Human Services, in a study published in 1981,¹⁹ estimated that 68% of children who were identified as abused or neglected had not been reported.²⁰ (The same study found that 56% of cases reported were unsubstantiated). Such evidence certainly establishes that mandatory reporting laws are not a panacea. They are clearly not alone sufficient to resolve the problem of under-reporting. However, it does not follow that they have not improved the situation.

Canadian experience throws some light on the reasons for under-reporting despite mandatory reporting laws. In Ontario, a doctor who fails to report risks a fine of up to $1,000, professional discipline and civil liability. Yet many doctors are still reluctant to report. Factors contributing to this situation have included uncertainty about what constitutes reportable abuse, and a lack of confidence that the relevant Canadian child welfare services will deal effectively with cases once reported.²¹

PROVISIONAL CONCLUSIONS

2.04

Mandatory reporting laws are clearly not a complete solution to the problem of under-reporting child sexual abuse. They can only be part of the solution. One of the most important factors likely to influence levels of

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reporting is the degree of confidence which exists in child protection services, and we acknowledge the efforts made by the Department of Health and the health boards in recent years to improve such services. If doctors, teachers or social workers know that reports made by them will be followed up quickly, effectively and with sensitivity, they will be more likely to act. If that confidence does not exist, then even mandatory reporting laws are unlikely to have much impact, particularly if it is known that sanctions are seldom if ever applied.

Despite these cautionary words, we do believe that a mandatory reporting law may on balance do more good than harm. We believe that the current level of reporting is probably, despite increases in recent years, still low. The introduction of mandatory reporting would represent a clear and unequivocal public statement that child sexual abuse is something that society will not tolerate, and that its potential for damaging children is such that the uncomfortable feelings that many professionals have about reporting must be put aside. We think that the duty to prevent harm to a child overrides the normal obligation of confidence which may arise in a professional relationship. The existence of a mandatory reporting law would offer the clear guidance that many professionals desire as to where their duty lies and in what manner that duty must be performed. The existence of statutory exemptions would relieve bona fide reporters of any lingering fear of being sued or prosecuted.

We acknowledge the importance of avoiding the phenomenon of over-reporting, with its attendant danger of injustice and damage to innocent families. We think that a carefully and tightly drawn reporting law should reduce this risk to a minimum.

We appreciate that these are matters on which there will exist varying and sometimes strongly held views. We stress the provisional nature of our conclusions and invite comments.

The Elements of a Mandatory Reporting Law

2.05

The general principles which should inform a mandatory reporting law may be summarized as follows. The law should be specific enough to discourage over-reporting, whether by the over-zealous or the defensive reporter; it should, on the other hand, be broad enough to facilitate identification of children who are genuinely at risk. It should be based on a definition of child sexual abuse which lays down a minimum rather than an optimum standard of care towards children. This derives from the need to recognise that methods of child care may properly vary between different families, and that the capacity of the child care services to respond to reported abuse is limited by finite resources. Finally a mandatory reporting law should be readily understood and easily applied.²²

Six specific matters need to be addressed:

(i) The Persons to be Placed Under an Obligation to Report

2.06

“[I]f the reporting group as delineated by statute is large, the impact of the reporting requirement may be diffused, and everybody's duty may easily become nobody's duty.”²³We consider that doctors, health workers and professional social workers should be placed under this obligation. Voluntary social workers present somewhat greater difficulties. On one view, their moral obligation to report is no less strong by reason of the fact that they are not paid. However, the scope of the obligation may be far less easy to determine in the absence of terms of employment and a structured allocation of responsibility among the team of social workers. On balance we believe that the legal obligation to report should be placed on them.

Teachers also present some difficulties. It may be argued that they should be subject to the obligation to report because they often are the only people who have an opportunity to see the children in a natural environment outside the home. Visits to the doctor tend to be rare; and, if a parent is abusing the child, there may be a still greater reluctance to expose the child to medical scrutiny. But school attendance is compulsory and abusing parents may be somewhat less apprehensive about the risk of discovery in sending their children to school. It may well be that, properly informed as to the symptoms of possible sexual abuse, teachers would be in an excellent position to recognise abuse and to report cases that would otherwise never come to notice. Occasionally also a pupil may make a verbal disclosure of abuse to a teacher. As against this, some teachers will take the view that their main role is to teach, not to act as a surrogate law enforcer, social worker or doctor. The decision whether or not to report a suspicion of abuse should, on this view, be considered a matter for voluntary choice rather than legal compulsion. Also it is clear that teachers cannot be expected to make a medical diagnosis on a matter outside their competence. Moreover the behaviourial indicators of child sexual abuse are controversial and may often have alternative explanations.²⁴

These limitations must be borne in mind, and teachers should certainly not be expected to perform functions for which they are not trained. Nevertheless, there will remain occasions on which teachers will form a

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reasonable judgment that abuse has occurred. For example, a child may make a verbal disclosure in circumstances where the teacher has every reason to believe that the child is telling the truth. In our view the mandatory reporting requirement should apply to such circumstances.

As for the argument that a pupil may be deterred from making a disclosure to a teacher if he or she cannot be promised confidentiality, this is a risk; but it is one which may be reduced to a minimum by a sensitive approach on the part of the teacher and, perhaps, a promise that the matter will go no further without the pupil first being told. It is at any rate questionable ethically whether a teacher should promise absolute confidentiality to a child; the risk is that the teacher may be drawn into the web of silence which ultimately protects the abuser.

We are aware that work is currently being undertaken within the Department of Education, in consultation with the Department of Health, with a view to drawing up agreed guidelines for child-abuse reporting procedures in schools. These are likely to include a procedure whereby a teacher, who suspects abuse, would consult with a colleague, possibly the Principal, before further steps are taken. We welcome the development of such guidelines but would emphasise that, under mandatory reporting laws, ultimate responsibility for deciding whether or not to submit a report generally rests with the individual teacher.

The position of persons running pre-school groups and creches is somewhat similar to that of teachers, though not identical. The educational dimension, for younger children at least, may be far less central than at a school. The case in favour of mandatory reporting applies equally.

(ii) Sanctions for Failure to Report

2.07

As we have seen, the international experience is that sanctions for failure to report cases of suspected child abuse are rarely applied. The difficulty of proving the case is no doubt the reason for the lack of prosecutions, though the objective test of criminal responsibility should mitigate this problem. Where sexual abuse is alleged, and the vital evidence is that of a young child, prosecuting for failure to report is likely to be no less difficult than prosecuting for the abuse itself. Also we recognise that the primary objective of a reporting law is to encourage reporting by legitimising it and empowering individuals to act; the law can do much to achieve this objective without the application of sanctions.²⁵We nevertheless believe that sanctions should be provided to punish blatant cases of failure to report, and we provisionally recommend that an appropriate summary offence be created with a maximum penalty of 6 months imprisonment and/or a fine of £1,000. Prosecutions for failure to report should be subject to the consent of the Director of Public Prosecutions.

(iii) The Question of Immunity from Legal Action for Making a Report

2.08

Should those placed under a mandatory reporting obligation be given immunity from legal action for making a report? Clearly, if there is to be a mandatory obligation, those placed under that obligation should be under no civil liability to any third party if their reported suspicions prove correct. If they have acted bona fide and with due care, they should also be protected where the suspicions prove to be unfounded. It may well be that they already are adequately protected by the civil law; qualified privilege would appear to afford them a good defence in actions for defamation,²⁶ and an action for malicious prosecution²⁷ would not appear to lie. They would not be liable for the tort of negligence, having acted with due care.

We see merit nevertheless in the statute expressly conferring immunity from liability for bona fide reports made with due care. This would be likely to give greater assurance to those placed under the mandatory reporting requirement. Although there are some precedents for conferring complete immunity on persons charged with specific statutory obligations,²⁸ we do not favour this approach in the present context. In its favour, it may be said that it would encourage the timid and the hesitant who had in fact good grounds to report to “take the plunge”. As against this, it would remove any restraint from an incautious reporter and would increase the risk of over-reporting.

Should failure to comply with the mandatory reporting obligation give rise to civil liability? As we have seen, it is likely that, under present law, proceedings for negligence or breach of statutory duty may be brought in at least some cases of failure to report suspected child sexual abuse. The range of liability at present would almost certainly not extend to every health professional and social worker; where precisely the line should be drawn must await judicial decision.

Our provisional conclusion is that the courts should be left to develop the law of negligence or breach of duty in the context of the mandatory reporting obligation. We do not believe that it would be desirable for the legislation itself to include a provision rendering those who failed to comply with the obligation liable to pay damages to persons suffering reasonably foreseeable injuries or damage as a result of that failure. We are conscious of the danger of imposing automatic civil liability in complex areas such as this. Automatic liability encourages defensive and selfish strategies on the part of those under the duty; over-reporting is quietly seen as the safe and easy option. The pain, hardship and injustice this causes to innocent families should never be over-looked.

(iv) How to Report and to Whom

2.09

It has been said that “[c]ritical to well-functioning [mandatory reporting] legislation is facility in the reporting process and utility by the receiving agency”.²⁹ It is therefore useful to sketch some of the main features of how the reporting law should operate.

We consider that the best course would be to require an initial oral report,³⁰followed by a written backup account³¹identifying the child and the nature and basis of the suspicion that he or she has been subjected to sexual abuse. We do not consider that there should be a mandatory obligation to report a suspicion that a child may at some future time be subjected to sexual abuse.

It has been noted in the United States that written reports have been criticised as a deterrent to reporting, “since many reporters, especially physicians, do not have the time to write reports or may not wish to 'go on the record'”.³² We are however satisfied that written reports are necessary. Oral reports can tend to get lost in the system. There may be considerable uncertainty as to precisely what was said. Conflicts of evidence will arise. A written report commands action in a way that an oral report generally does not.

We further recommend, in line with the Department of Health Guidelines that the person to whom all reports should be made should be the Director of Community Care and Medical Officer of Health within each health board. It should also be open to a mandated reporter to submit his or her report to the Gardai.

(v) The Nature of the Obligation to Report

2.10

The obligation to report could be of an entirely subjective type; persons under the obligation could be required to report in cases where they have formed the conclusion, bona fide, that a child had been subjected to sexual abuse. The problem with this approach is that in cases where such persons ought reasonably to be aware that such sexual abuse has occurred but were not in fact so aware, they would be under no obligation to report. An objective test would impose an obligation to report where a reasonable person would be so aware. This would remove the difficulty of the careless failure to detect cases of child abuse. The price may be a tendency towards over-reporting. We think, nevertheless, that the objective test is the only realistic one, and that the danger of over-reporting should be reduced by the careful definition of reportable conditions.

(vi) Reportable Conditions

2.11

It is vitally important that a mandatory reporting law provide reasonably clear guidance as to the circumstances in which reports should be made. If a mandated reporter is offered only vague guidelines, there is the danger of over-reporting resulting from an excessively cautious or defensive approach on his or her part. Reportable conditions need to be reasonably specific and readily understood.

We suggest, as a definition of child sexual abuse for the purpose of care proceedings, that proposed by the Western Australia Task Force in its 1987 Report:

We think that this could form the basis also of the reporting law. A mandated reporter would be under an obligation to report where he or she had reasonable grounds for suspecting that sexual abuse of a child, as defined above, had occurred. It would be possible for the legislation to go further, and to list standard indices of sexual abuse, such as those set out in the Department of Health Guidelines,³⁴ and to require a report where a child exhibits extreme or combined symptoms from the list. This, it could be said, would offer a more practical guide to reportable circumstances than a definition of sexual abuse such as that proposed. However, because sexual abuse indices “are not necessarily indicative of child sexual abuse”³⁵ (i.e. they may have alternative explanations) it would be wrong to require a report simply on the basis of their presence. They could be mentioned in the legislation as among the factors which may be taken into account by the reporter in reaching a reasonable judgment as to whether abuse has or has not occurred. But the legislation should make it clear that the foundation for making a report must be a reasonably formed suspicion that actual abuse has occurred.

2.12

We believe that the issue of the definition of reportable circumstances is central to the issue of whether mandatory reporting laws should be introduced. If it proves impossible to arrive at a reasonably clear statutory definition of reportable circumstances, then the case for mandatory reporting is considerably weakened. For this reason we would in particular welcome comments on the problem of defining reportable circumstances, and would emphasise that this remains a problem even in the context of the development of voluntary reporting procedures.

INVESTIGATION AND MANAGEMENT OF CHILD SEXUAL ABUSE

2.13

Procedures for the investigation and management of child abuse within health boards have undergone significant development and elaboration in recent years. In 1987 the Department of Health issued the revised Guidelines on Procedures for the Identification, Investigation and Management of Child Abuse.³⁶ The Guidelines are the product of careful thought and planning by a multi-disciplinary group of persons with considerable experience in child care and protection. We do not wish, nor would we be competent, to question the detailed procedures laid down in the Guidelines. We have given some thought to the general question of whether the Guidelines should as a whole be given regulatory or statutory force. Because they have no binding legal status, there is a danger that the Guidelines may from time to time be ignored or that individual health boards may vary in the degree to which they adhere to them. Indeed such variations have been drawn to our attention. However, we do not favour at present altering the status of the Guidelines. We believe that there are dangers in legal regulation on health boards in relation to the management of child abuse. If every aspect of management were to become the subject of legal regulation, scarce resources may be unduly focused on adherence to procedural niceties and record keeping. Child care and protection services are still undergoing development and it seems desirable that procedures maintain some flexibility and responsiveness to change. At the same time, we do think that there are certain key points within the health board decision-making process in respect of which it is appropriate to insist on the maintenance of certain minimum legal standards. There is a difference between flexibility and procedural laxity, and the danger of a completely discretionary procedure is that it may provide an excuse for inaction, delay or idiosyncratic decision-making. There should therefore be some measure of legal accountability for the key decisions and actions taken by health boards in response to reports of child sexual abuse. It is with a view to maintaining a reasonable balance between flexibility and accountability that the proposals in this section are made.

INVESTIGATION

2.14

At present a health board is not under a legal duty to investigate a report of suspected child sexual abuse. The Child Care Bill 1988 will not substantially alter this position. Section 3(2)(a) of the bill requires a health board to “take such steps as it considers requisite to identify children who are not receiving adequate care and protection”. This gives the health board considerable discretion as to the means it may adopt in identifying children at risk. Section 14 requires a health board to institute care proceedings in respect of a child who has been or is being sexually abused; it is doubtful whether this implies a duty to investigate in any particular manner a report of alleged sexual abuse.

The Department of Health Guidelines, which are not legally binding, state:

The Guidelines also contain detailed advice on the action to be taken by the community care social worker following referral of all types of child abuse case.³⁸ These include speaking to the person who has made the complaint, checking the child abuse list, discussing the situation with the parent/guardian, checking with other community care personnel and agencies, visiting the child – on the day of the report if necessary – and assessing the child's appearance, behaviour and relationship with parents, seeking an explanation from parents/guardians and recording observations. In addition, in cases of alleged sexual abuse the Guidelines contain recommendations for liaison between the health board and the Gardai, and for the use of multi-disciplinary teams in the examination of children and the validation of alleged sexual abuse.³⁹

We recognise that great sensitivity is needed in investigating alleged child sexual abuse, and the Guidelines have been carefully devised by a multi-disciplinary working group, who were in a better position than the Law Reform Commission to judge the wisdom of specific investigatory procedures. We believe, nevertheless, that it is right for us to raise one matter of general legal principle relating to the legal status of the investigation procedures.

A STATUTORY OBLIGATION

2.15

The Guidelines are not binding on health boards, and in the absence of any other legal requirement relating to the investigation of alleged child sexual abuse, a health board is free to vary or depart from the agreed investigatory procedures. It is worth noting that in the United States of America the trend in recent years, in the context of mandatory reporting laws, has been to develop specific statutory guidelines governing investigation. The Arkansas Law is a typical example:

One of the drawbacks in laying down strict statutory obligations relating to the investigation, and indeed the management generally of child abuse cases, is that health boards may find themselves having to abide by statutory procedures which in some cases they may deem to be unnecessary. Much time may also be taken up in filling out reports to ensure that a record is kept that statutory procedures have been followed. We recognise these dangers, but we think that the risks entailed by the present law may be greater. It seems to us reasonable to place a statutory duty on health boards to take at least certain minimal steps in response to a report of alleged child sexual abuse.⁴¹ The obligation to investigate should not be absolute, but where a decision is made not to investigate following a report of alleged abuse, the onus should be on the health board to give reasons.⁴² The law should also specify in broad terms the matters to be investigated, along the lines of the Arkansas statute set out above.

CO-OPERATION WITH THE GARDAI

2.16

We are concerned about the procedures whereby the Gardai are to be notified of cases of alleged child sexual abuse. Paragraph 6.2.1 of the Guidelines states:

More discretion seems to be allowed in the case of hospital/ clinic personnel. Where an offence comes to their notice, they “should contact the DCC/MOH and, if the circumstances so warrant, they may initiate contact with the Gardai.”

From our discussion with health care professionals it has become apparent to us that there is often a reluctance to involve the Gardai in the early stages of investigation of alleged child sexual abuse. The motives are understandable. In many cases the evidence is simply insufficient to warrant Garda involvement. In other cases there may be a fear that parental consent to further examination of, or interview with, a child will not be forthcoming, or will be withdrawn if the parents know that the Gardai are likely to be involved. There is also the prevailing ethos within the health care profession that the welfare of the patient/child should be the primary concern. Indeed this principle is embodied in paragraph 6.2.6 of the Guidelines, although the Guidelines do also remind investigators that child sexual abuse is a criminal offence and that “the community has an obligation to ensure that the necessary steps are put in motion to protect the child and to ensure that the perpetrator is deterred from further abusive acts.”⁴³

One of the consequences of excluding Gardai from the early stages of investigation is that it may ultimately make it more difficult to mount a successful prosecution against the alleged offender. If disclosure by the child

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is first made in the context of a purely therapeutic interview without Garda involvement, there is a danger that any subsequent formal statement made by the child to a Garda may be attacked in court as tainted by the earlier interview. Another disadvantage of not involving the Gardai at an early stage is that the number of interviews which the child may have to undergo is increased.

There is understandable concern about the very low rate of prosecution for child sexual abuse. The failure sometimes to involve the Gardai in the early stages of investigation may well, in our view, contribute to this situation. On the other hand, we appreciate the reluctance of health care professionals to set in train the criminal justice process precipitately or without proper regard for its potential consequences for the child. What may be needed is a procedure which allows the health care professional some degree of influence on the decision whether to institute criminal proceedings or not. One way of achieving this is suggested in the next section, i.e. to give to the multi-disciplinary case conference a role in advising on the question of prosecutions.

CASE CONFERENCES

2.17

The case conference occupies a central position in decision-making within health boards in relation to child abuse cases. The Department of Health Guidelines describe them as “an essential feature of inter-agency co-operation”.⁴⁴ The case conference, called by the DCC/MOH, is the body which provides the forum for exchange of information concerning a child between the different professionals involved with the child and the family. It may include community care and health care professionals, teachers, Gardai and others. It is the case conference which reviews written and verbal reports about an individual case, determines the nature and degree of risk to which a child is exposed, decides whether a case should be listed as confirmed or suspected abuse, and what form of intervention is appropriate.

Despite the key position occupied by case conferences in the management of child sexual abuse, their procedures are not legally regulated. Even the non-binding Department of Health Guidelines make the DCC/MOH's decision to hold a case conference a matter of discretion, and the advice given to community care teams to “review and standardise case conference procedures” is in the form of a recommendation only. It would not be proper for us to review in detail the procedures regulating case conferences. However, we do wish to indicate certain areas, which have a legal significance, where we believe that there is a need for some tightening-up of the procedures.

CHILD ABUSE LISTS

2.18

The Department of Health Guidelines require each DCC/MOH to supervise “lists of suspected and of confirmed cases of child abuse in his area”.⁴⁷ The information contained in the relevant list includes source of referral, details of the child and his or her parents or guardians, the names of other children in the same household, a short description of the abuse to the child and of the suspected abuse. The case conference decides whether a case is to be listed as confirmed or suspected abuse. Lists are to be reviewed at least annually by the DCC/MOH. Where initial suspicion proves unfounded, details are deleted from the list. A case is listed as confirmed abuse only if there is:

Disclosure of information from the lists is at the discretion of the DCC/MOH, though “the fullest possible information should be given having regard to the circumstances of the case, particularly where the information is needed for a case conference”.⁴⁹ The guidelines make no provision for access by parent to information contained in the lists.

We have some concern about the legal safeguards surrounding the making and use of the lists of confirmed cases of child abuse. We are aware that the practice of keeping “lists” in different health board areas is not uniform, and that the method of listing cases may soon be reviewed. We wish to make provisional suggestions for changes in practice in relation to two matters:

EMERGENCY CARE PROCEDURES

2.19

The law has for long recognised that there may arise exceptional circumstances requiring emergency action to protect a child at risk. Sometimes the risks of delay are such that the child's parents may not have an opportunity to object in advance. Such ex parte procedures can only be justified in cases of serious and imminent risk, and following such action, parents must necessarily be given an opportunity to state their case without any unnecessary delay. In cases of suspected sexual abuse, whether ex parte applications are justified or not will depend on the degree of risk to which the child is exposed. Ex parte emergency proceedings are not appropriate in every case, nor even in most cases, of suspected sexual abuse. To remove a child permanently from his or her home is an extreme form of State intervention which may have traumatic effects on the family as a whole, including the child thought to be at risk. It is a step which should never be taken lightly or as a matter of routine.

The Child Care Bill 1988 envisages two circumstances in which emergency action may be taken. First, where a member of the Gardai has reasonable grounds for believing that a child has been or is being sexually abused and

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that there is an immediate and serious risk to the health or wellbeing of the child, he may without warrant move him to a place of safety.⁵⁰ Second, a District Justice may make an emergency care order authorising the removal of a child to a place of safety, where the Justice is satisfied that there is reasonable cause to believe that there exists an immediate and serious risk to the health or wellbeing of the child.⁵¹ In the first case, the child may be kept in a place of safety for a maximum of twenty-four hours, pending emergency care proceedings before a Justice. In the second case the Justice may make an emergency care order for a maximum of eight days.

We believe that the basic criteria employed by the Bill for emergency care proceedings, namely “immediate and serious risk”⁵² to the child, is a sensible one. We do, however, wish to make a number of detailed comments and recommendations relating to emergency care proceedings.

Duration of Emergency Care

2.20

The maximum period for which a child may be kept in a place of safety under section 11 of the Bill is eight days. It is right, as well as being constitutionally required,⁵³ that the period should be the minimum necessary to secure the safety of the child and to enable preparations to be made for a full hearing before the court to determine whether longer term measures are necessary. The period of eight days is therefore sensible. However, some social workers have suggested to us that the period of eight days may in some cases allow insufficient time for the assessment of the child and the gathering of other evidence necessary for subsequent care proceedings. One way of resolving this problem would be to allow the relevant health board to apply to a Justice for an extension of the eight day period up to a maximum of a further eight days. In order to succeed in such an application the health board should be required to satisfy the Justice that preparations for care proceedings were advancing with all due speed, that an extension of the emergency care period was necessitated by the circumstances of the particular case and that no adequate alternative means of protecting the child were available. We would be very concerned that the application for an extension of the emergency care period should not become a matter of routine. For this reason we suggest that the application should be made on the basis of a sworn information, and that the right to apply should be confined to the DCC/MOH or a senior official of the health board acting on his or her behalf.⁵⁴

The Application for an Emergency Care Order

2.21

We have no evidence of the excessive use of place of safety orders in this jurisdiction. Nevertheless, experience abroad suggests the need for safeguards to ensure that the making of such orders never becomes a routine matter. One of the major problems in the Cleveland episode was the over-deployment of emergency care orders. They were applied for too readily, and in a number of cases were used in the first stages of management and intervention, in situations where there was no immediate danger to the child.⁵⁵

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The Report of Enquiry into Child Abuse in Cleveland 1987 also concluded that it is an improper use of place of safety orders merely to facilitate “disclosure work”.⁵⁶

We agree that the emergency care order should only be used in cases of serious and immediate risk to a child. The emergency care order may provide the opportunity for assessment of the child or for “disclosure work”, but this alone does not justify its use in the absence of a genuine emergency. We also believe that the emergency care order should be viewed as a last resort, to be employed only where it is clear to the Justice that other adequate means of protecting the child are insufficient. This principle is implicit in section 11(1) of the Child Care Bill 1988, which allows the making of an emergency care order only where the risk to the child “necessitates his detention in a place of safety”. However, we feel that a more explicit rule might be preferable. The Justice should be placed under the positive obligation to consider whether there exist other adequate means of protecting the child. In practical terms this would mean that an applicant health board would have to demonstrate that it had considered less drastic alternatives and rejected them for good reasons.

The person primarily responsible in this jurisdiction for controlling the use of emergency care orders will be the District Justice. He or she must be satisfied that there is reasonable cause to believe that the relevant degree of risk to a child is present. In determining this matter the District Justice is necessarily, in ex parte proceedings, heavily dependent on the information supplied (usually) by the applicant health board. The manner in which decisions to embark on legal proceedings are taken within the health board is therefore of importance in this context, and has already been referred to.⁵⁷The Child Care Bill will not require a health board, when applying for an emergency care order, to make a sworn information. We believe that the present procedure whereby all applications for place of safety orders are on the basis of a sworn information should be retained. We believe that this requirement assists the Justice in assessing the strength of the case, imposes a necessary discipline on the health board in presenting its case and helps to ensure accountability. Apart from this, we believe that the procedures, because of their emergency nature, should be kept as simple as possible and we recognise that their successful operation depends to a large extent on the quality of decision making within health boards, and the degree of vigilance and commonsense exercised by District Justices.

Emergency Care Orders, Medical Inspections and Assessments

2.22

We have already stated that we do not think that it is proper for an emergency care order to be employed where the sole purpose is to obtain an assessment or medical examination of a child. On the other hand, it must be recognised that cases arise where, though there may be insufficient evidence of immediate risk to a child to justify an emergency care order, the level of suspicion of abuse is sufficient to justify examination of the child despite parental objection. We believe that the District Court should be given a power

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to authorise a health board to arrange for the medical examination and other assessment of a child where the level of suspicion of abuse is sufficiently high. Where such an authorisation is granted the parent would be under an obligation to present the child for examination at a given place and at a certain time or times. It should be open to the health board to apply for the order on an ex parte basis.

We see a number of advantages in this proposal. It accords with the principle that intervention should be the minimum necessary to achieve the protection of the child. The existence of this new procedure will make it less likely that a health board will be tempted to use the emergency care order as a first step intervention.

The proposal may have another important and useful side effect. At present, in most cases where abuse is suspected, the medical examination and interviewing of children proceeds on the basis of parental consent or acquiescence. It is obviously preferable that this should continue to be the basis in the great majority of cases. However, in some cases consent may be difficult to obtain or, once obtained, difficult to sustain where, for example, a series of tests or interviews with the child is thought to be necessary. Professionals engaged in assessment will naturally in these circumstances seek to exclude factors which may influence a parent not to give, or to withdraw, consent. In particular, we have been told that knowledge that there will be a Garda present at the child's interview may act as a deterrent to the parents, and this is one of the reasons why health professionals have been reluctant to involve Gardai at initial diagnostic and assessment sessions. This is an unfortunate situation in which, in our view, the present legal balance is weighted too heavily in support of the parental right of veto. The balance would be redressed by giving the District Court a power, without making a full emergency care order, to order assessment and examination of the child.

We are also concerned that, where a place of safety order is granted (or an emergency care order under the new legislation), the law does not make clear its implications in relation to medical examination and assessment of the child. It is generally assumed that a place of safety order justifies the health board in arranging for an initial medical examination and assessment of the child, but it is not clear whether it would justify further protracted examinations and interviews with the child. In our view the legislation should make it clear what are the minimum rights of medical examination and assessment implicit in an emergency care order and, where the health board proposes to go beyond those limits, specific authorisation from the District Justice should be necessary.

Parental Rights in the Context of Emergency Care

2.23

Emergency care proceedings involve extreme abridgment of parental rights. A child may be removed from its parents without them having an opportunity to state their case. A District Justice should not allow such a procedure unless it is clearly shown to be necessary. For this reason, we

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believe that the District Justice should before making an emergency care order be satisfied that the risk to the child is such as to make ex parte proceedings necessary. In other words, the health board should have to convince the Justice not only that the relevant degree of risk exists, but also that the emergency nature of the situation justifies a hearing in the absence of the parents. We are not suggesting that anything be done to attenuate emergency care proceedings; they must by their nature be heard as quickly as possible. However, if it is feasible to have the parents present at the hearing before the District Justice, and they are willing to be present, then they should be allowed to be present and to state any objections which they have. In most emergency situations it will no doubt continue to be necessary to proceed on an ex parte basis. But there is no reason why, if parents are prepared to be in court within the necessarily limited time constraints, they should be excluded.

When a child is made subject to a place of safety (or emergency care) order the present assumption is that his or her parents have no right of access to him or her while the order lasts. As a general principle this may be acceptable, but we have two concerns. First, if denial of access is to be the rule, this should be made explicit in the legislation. Secondly, there may be circumstances in which it would be wrong to deny both parents access during the period of emergency care. Where, for example, it is suspected that a child is being seriously sexually abused by its father, a court may be justified in granting an emergency care order and excluding the father from access, but it does not necessarily follow that the mother should also be excluded. Much will depend on the circumstances. In our view it is worth considering whether the Justice, when granting the emergency care order, should be required to take the circumstances into account and to approve access where this would not jeopardize the child's safety.

Protection and Exclusion Orders in Emergency Situations

2.24

In emergency situations at present, where the protection of a child necessitates separation from its parents, it is generally the child who is removed from the family home rather then the alleged abusing parent. The only mechanism for removing the parent on an ex parte basis is the injunction, a complex and sometimes costly remedy whose enforcement requires further court proceedings. A barring order is not available on an ex parte basis. A protection order is available, but it does not affect a physical separation between the abuser and the abused, and it is only available on the application of a spouse.

Often the removal of the child from the home may be more appropriate than the removal of the alleged abuser. Removal of the child may be necessary to guarantee his or her protection, and it may incidentally provide the opportunity for the child to be assessed and examined away from any pressures exerted by the home environment. However, it has been suggested to us that there may be some occasions on which it may be more appropriate to remove the suspected abuser rather than the child.

Feelings of guilt are common in the child who has been sexually abused, and the child's removal from its home may sometimes tend to reinforce her sense of responsibility for what has happened. The sudden removal from family members with whom the child has a strong bond of affection may also cause considerable distress both to the child and to its family, most of whom may not have been aware that abuse was taking place. The question therefore arises whether a legal procedure should be introduced whereby the alleged abuser may be excluded from the company of the abused child in circumstances similar to those which would justify a place of safety or emergency care order.

It is, of course, a very drastic measure to remove any allegedly abusive member of the family from his or her home on an ex parte basis (just as it is a drastic measure to remove the child) and should only be contemplated in the most extreme circumstances. There is also always some risk attached to leaving a seriously at risk child within its home. If the alleged abuser is the father, the child's protection will depend on the mother being prepared to enforce the order excluding the father. She may not be fit, willing or able to do so. There may also be occasion on which it would not be clear who the abuser is.

We nevertheless are of the opinion that the District Court should, when dealing with an emergency situation, have at its disposal the option of removing the alleged abuser on an ex parte basis, as an alternative to an emergency care order. The grounds for such exclusion should be the same as the grounds for an emergency care order. Application for such an order should be restricted to a health board or a parent of the child. The order should be available against any member of the child's household, including siblings and perhaps against any other persons, such as babysitters, who are likely to be regularly in contact with the child. However, in any case where there is doubt as to the identity of the abuser, an emergency care order would be the more appropriate one. The mechanism for the enforcement of an exclusion order should be the same as that applicable to a barring order under the Family Law (Protection of Spouses and Children) Act 1981. We think that a justice should be entitled to make an exclusion order as an alternative in proceedings for an emergency care order, and vice versa. However, the justice should not make an exclusion order unless he or she is of the opinion that it would, having regard to the circumstances, secure the safety of the child. The order would last for the same maximum period as an emergency care order (eight days), and would be renewable for a further eight days. It would be made in contemplation of a full hearing involving care and\or barring order applications.

For cases of alleged intra family abuse, where the risks are not sufficiently grave to justify an emergency care order or an exclusion order, we recommend certain modifications to the existing system of protection orders. We think that a health board should be entitled to seek a protection order on an ex parte basis on the same grounds as those which at present apply where a spouse makes the application. We also think that the class of persons against whom

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protection orders may be sought should be expanded. Any person who is a member of the household of the child against whom abuse is alleged, and any other person who is likely to have regular contact with the child, should be capable of being made subject to a protection order. This would include for example an uncle, an elder brother or an unmarried partner of the child's mother.

GROUNDS FOR THE MAKING OF A CARE ORDER

2.25

We agree in broad terms with the grounds for making care orders which are proposed in section 15 of the Child Care Bill 1988, and in particular with the proposal that sexual abuse should be a specified ground.

Despite the difficulty of framing an adequate statutory definition of child sexual abuse, the arguments such as those put forward by the Western Australia Task Force (the adoption of whose definition is provisionally recommended above) in favour of attempting to do so, are strong. A statutory definition, indicating in outline those activities which are deemed to justify intervention, would not only assist a justice in determining an application for a care order, it would also offer guidance at an earlier stage for those faced with decisions about reporting or management of sexual abuse cases.⁵⁸

Section 15(1)(c) of the Child Care Bill may be of particular importance in certain intra-familial abuse situations. It will allow a justice to make a care order on the basis of anticipated abuse or neglect; it does not necessarily require proof that abuse or neglect has already occurred in relation to the child in question. When, for example, the child is a young girl within a family where other daughters have been sexually abused by their father, the protection of a care order may be needed. We recognise that a constitutional issue may arise here. It could be argued that Article 42.5 of the Constitution allows the State to intervene to protect a child only where there is existing evidence that the parent has failed in his or her duty towards that particular child.⁵⁹ This constitutional argument could be raised by a parent in care proceedings under section 15(2) of the Bill, which requires the court to have regard to the constitutional position of parents and children. We would like to make it clear that, in our view, the consequences would be most unfortunate if such an argument were accepted; section 15(1)(c) would in effect cease to be available as a ground for a care order. Perhaps the correct constitutional approach to the section would be to regard it as justifiable, not necessarily under the terms of Article 42.5 of the Constitution, but by virtue of the State's duty to protect the natural and imprescriptible rights of the child. The KC⁶⁰ case makes it clear that a “compelling” case based on the interests of the child may justify separating the child from its family unit, independently of any argument based on parental failure under Article 42.5.

We make one further comment on section 15 of the Bill. In the past, health boards have most frequently made use in care proceedings of the ground of

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failure by a parent to exercise proper guardianship. We recognise the disadvantages of this formula. There is an element of vagueness in the term “proper guardianship” and, as a general principle, the basis for State intervention into family life should be reasonably clearly defined. We are, nevertheless, not aware of any sense that the ground has in the past been abused. Moreover, social workers sometimes find it helpful to be able to proceed on a basis which does not directly stigmatise a parent as being guilty of neglect, cruelty or abuse. We would be interested to receive comments on this matter.

THE SUPERVISION ORDER

2.26

We welcome the introduction of the supervision order, which will enable the court to direct a health board to have a child visited periodically in order that the child's welfare may be monitored and parents may be provided with any necessary advice. The additional power which the court has been given to give directions relating to the care of the child which may, for example, require the parents to present the child for treatment or attention at a hospital or clinic, provides a valuable option in certain sexual abuse cases.

Under section 15(5), where a health board applies for a care order, the court may instead make a supervision order if it thinks it proper to do so. Some social workers to whom we have spoken take the view that some justices may be inclined to make use of the supervision order as a too-ready alternative to a care order, with consequent risks for the child. On the other hand, where a justice is doubtful about the need for a full care order, at least s 15(5) gives him an alternative to refusing to make any order. One possible amendment which we favour would be to place on the justice a positive obligation to be satisfied that a supervision order will adequately protect a child, where he or she proposes to make it in lieu of a care order.

PROCEDURE IN CARE PROCEEDINGS

2.27

We agree with the general principle embodied in section 21 that proceedings should be otherwise than in public, but we think that specified exceptions should be made in the case of the press and bona fide researchers. The anonymity of the child is adequately protected by s 23, which prohibits publication of any matter likely to lead to the public identifying the child.

We believe that provision should be made for the appointment by the justice of an independent representative for the child where, in the opinion of the justice, this appears to be necessary in the interests of the child. In many cases the justice will take the view that the child's interests are adequately represented by the health board. However, cases sometimes arise where an independent voice on behalf of the child may assist the court in achieving a balanced view, and vindication of the child's personal rights may sometimes require such representation. In the case, for example, of an older child who has a strong objection to the plans being made for him by a health board, it is not right

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that he should be without an independent voice in care proceedings.⁶¹ In this context, s 22(2) is to be welcomed, which gives the child a right to be present at the hearing on request, except where it appears to the court that this would not be in the child's interest. We suggest that this principle should be extended to give the child a right to be heard in the proceedings, and on the same basis. As regards the nature of the representation accorded to the child in appropriate cases, we think that the person providing it should be legally qualified. He or she should be appointed by the court from among lawyers who by reason of training and experience are competent to represent children. A panel of such lawyers should be established. The criteria for appointment to the panel, including the possibility of specialist training, are matters which should considered by the two professional bodies.

PARENTAL ACCESS

2.28

Section 17 of the Child Care Bill allows the court on its own motion, or on the application of any person, to make and vary orders relating to access to a child who is the subject of a care order. In our view there should be a presumption that the parents enjoy access rights unless the court otherwise decides. If a health board believes that it may be damaging to a child to see either parent while in care, or that access rights should be defined or limited in some way in the interests of the child, the onus should be on the board to convince the court of its case. The normal right of a parent to maintain contact with his or her child should not lapse by default, but only on the basis of a positive court ruling that the child's interests require suspension of parental contact.

On the other hand, we are concerned that section 15(4) of the Bill may allow the health board too much discretion in relation to parental involvement and access. The sub-section is broad enough to allow a health board to return a child who is subject to a care order to the charge and control of his parent or parents. Such an action would not terminate the care order, and the health board could, if it felt it proper to do so, require the parent to return the child to its care and control. Nevertheless, we think that there may be a danger, in a case where a court has formally determined that a child is at risk from a parent, in allowing the health board unilaterally, and without court approval, to return the child to his parents.

Such a course should be possible only with the sanction of the court and on the basis of a positive ruling that it would not involve risk for the child.

BARRING ORDERS

Who may apply for a barring order?

2.29

A barring order is available only on the application of a spouse. A spouse may be unwilling to initiate barring proceedings to protect a sexually abused child. Yet it is not possible either for a third party, such as a health board, or for the child himself or herself (acting through a next friend) to

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seek the protection of a barring order. A health board may therefore sometimes be obliged to seek an order committing a child to the care of a fit person, when an order requiring the abuser to leave the home may be more appropriate.

We have already considered this problem in the context of emergency procedures, and we have recommended that health boards be given power to seek ex parte barring and protection orders in an emergency on the same basis as justify the making of an emergency care order.⁶²We now recommend that health boards be given power to seek a barring order as an alternative to a care order in non-emergency situations, and that the court be given power to grant a barring order as an alternative to a care order where the justice is satisfied that this is the most appropriate method of securing the protection of the child. Before making a barring order, the justice should be satisfied that the conditions have been met both (a) for the making of a care order, and (b) for the making of a barring order.

Granting health boards the power to seek barring orders implies a radical broadening of the function of a barring order. At present a barring order constitutes a private law remedy available, if they wish to use it, to spouses. Our recommendations would bring the barring system into the public domain, giving health boards a power to initiate proceedings which may have serious effects on matrimonial relationships. In all cases the granting of a barring order will result in disruption of the marital relationship; in some, it may actually signal the beginning of its complete breakdown. The question must therefore be asked whether such a radical development is justifiable. We think that it is, provided that the District Court confines the grant of barring orders to appropriate cases. There undoubtedly do occur cases of parental abuse which may best be remedied by removing the abuser rather than the child. This may be particularly so where abuse of more than one child has occurred, or is likely to occur. If the non-abusing spouse is unavailable, unwilling or unable himself or herself to take the necessary measures to protect his or her children, it should be open to the health board to do it in his or her place. The court would, however, need to be satisfied that a barring order, in these circumstances, adequately protects the child or children at risk. If it is unlikely that the remaining parent will cooperate in keeping the barred parent out of the home, then a care order may be the safer alternative.

If neither spouse wishes the court to order one of them out of the family home, the question arises whether it is consistent with the constitutional guarantee of family privacy⁶³ that the court should be empowered to bar one of them. Arguably, this would be a case of intentional State interference with the matrimonial consortium of a type envisaged by Costello J in Hosford v John Murphy and Sons Ltd.⁶⁴ However, where the safety or welfare of a child is in question it seems probable that the constitutional duty to vindicate the right of the child by preventing further abuse would justify the grant of a barring order.

2.30

In relation to the absence of any capacity in the child himself or herself to seek a barring order, it may be recalled that in our Report on Illegitimacy,⁶⁵ we recommended that the right to seek a barring order should be extended to the child.⁶⁶ That recommendation was made in the context of proposals designed to ensure that the protection of the law would extend to all children regardless of their parents' marital status. We would like to revive this proposal in the context of sexual abuse. Once the principle is accepted that one parent may be barred for the purpose of protecting a child, there seems no good reason why that protection should be available only where the other parent invokes it. If, for example, a seventeen year old girl is being abused by her father, and if, for example, her mother finds herself unable to take legal action, it seems wrong that the girl should not be able independently to seek a barring order. It may be argued that this might lead to the disintegration of the family unit.

However, the continued abuse of the daughter or her forced retreat from the family home is a heavy price to pay for maintaining what in any case may be an unsatisfactory relationship between the mother and father.

Who may be barred?

2.31

At present only a spouse may be barred. A barring order is not available where a child is sexually abused by an unmarried parent, a step-parent, a cohabitee, a brother or a sister, an uncle or an aunt, or any other person who may be a member of the child's household. This in our view is an unnecessary limitation, and we recommend that barring and protection orders be available in respect of any person who is or has been a member of the abused child's household. Indeed there seems to be no reason why such orders should not also be available against other persons who, while not members of the child's household, come into regular contact with the child.

We are aware of several cases of sibling abuse. Where the sibling abuser is young, a barring order may not be appropriate, and care or even criminal proceedings (within the juvenile justice system) may have to be contemplated. But in the case of abuse by, for example, an adult brother, a barring order might well be appropriate. We are also aware of the significant problem of step-parent abuse. In Ireland, because of the absence of divorce, the “step-parent” will usually be a cohabitee rather than a spouse of the mother. Various studies⁶⁷ have found a significantly higher proportion of step-parents, relative to natural parents, who sexually abuse their spouse's children. It is generally step-fathers rather than step-mothers who are involved. For example, Dr David Finkelhor, head of the Family Violence Research Programme at the University of Hampshire, reported in 1980 the results of a study into sexual abuse of children which he made in respect of university and college under-graduates at six New England Educational Institutions. He stated that:

In view of such findings, the arguments for the extension of barring orders to step-parents, including unmarried persons cohabiting with a parent, seem unanswerable.

Other possible reforms

2.32

As we have seen, the court can attach to a barring order a non-molestation clause and such other conditions as it deems fit. These powers are extremely important in practice. An abusing parent may not confine his or her abusive behaviour to the place specified in the barring order. He or she may try to approach the child at school or in some other part of the neighbourhood which the child frequents. A non-molestation order may be directed against such unwelcome activity. Arguably the courts should be given an express statutory power to order the abuser to stay away from the home, neighbourhood, school or other place frequented by the child. It may also be appropriate in many cases to order the abuser to avoid communication, not only with the abused child and with other children in the home but also with any other children. We would welcome views as to whether these proposals are seen as necessary.

Finally, it has been suggested to us that criminal courts should have power to make barring or protection orders, as appropriate, against persons found guilty of offences involving child sexual abuse. We think that there is merit in this suggestion. If, for example, a court imposes a prison sentence on a father who has raped his daughter, it would seem not unreasonable to give the court a further power to ensure that, on release, the father is barred from any contact with his daughter.

FOOTNOTES TO CHAPTER 2

Part II The Criminal Law

CHAPTER 3: OFFENCES: (1) THE PRESENT LAW

3.01

In this chapter, we summarise the criminal law which applies at present to sexual offences affecting the young. These offences can be divided into two categories. In the first, the essence of the offence is the commission of an act of a sexual nature without the consent of the young person affected. These are referred to as “non-consensual offences”. In the second, the essence of the offence consists in the commission of such a sexual act where the young person concerned has consented. These are referred to as “consensual offences”.

A : Non-Consensual Offences Generally

(i) Offences where there is no consent

3.02

Where a child is alleged to have been sexually abused, the offences available for a prosecution of the alleged accused are exactly the same as those in the case of adults: i.e.

In two of these cases – buggery and indecent assault – the offence can also be committed where there is consent.

(ii) Offences where the victim has consented but the consent is vitiated

Where consent to sexual intercourse or indecent actions is procured by fraud or where the activity in question takes place while the victim is insensible through drink or is unconscious for any other reason, consent is vitiated and the crime of rape or indecent assault is committed. In addition, a group of statutory offences is available where carnal knowledge is procured by threat or intimidation, fraud, drugs or alcohol.⁷ Prosecutions for these offences are virtually unheard of as the circumstances either warrant a prosecution for rape, buggery or indecent assault or no prosecution at all.

B : Consensual Offences Generally

3.03

Notwithstanding the fact that consent may have been given and there has been no threat or intimidation, the following sexual acts are criminal:

3.04

The offences of buggery and gross indecency can be committed by both parties once they are over the age of 7 years. Incest can be committed by both parties once the female is aged 17 years or over.

Consensual sexual activity between females over the age of 15 years is not criminal.

C : Indecent Assault¹²

3.05

An indecent assault is an assault and battery accompanied by indecency. Any consensual sexual contact with a person over 14 years, other than anal penetration, gross indecency between males or sexual intercourse with a 15 or 16 year old girl, is not criminal. Much conduct referred to as child sexual abuse does not constitute an assault but rather takes the form of the performance or procuring of an indecent action as a result of the abuse of authority, or bribery, or the giving of a gift. An indecent motive will not render indecent an assault otherwise not so.

3.06

A rape of or indecent assault on an adult is an abuse of that adult. The term “abuse” is used in the context of sexual offences with children to denote in particular the element of the old taking advantage of the trust, obedience, respect for authority and propensity to be inarticulate of the young for the purpose of sexual gratification. A rape of a young person or an indecent assault on such person is no less a rape or indecent assault than when the offence is committed on an adult. Rape or indecent assault cannot

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be committed where there is consent. Where consent is forthcoming because of respect for authority, trust, or immaturity that consent can, in a sense, be said to be irrelevant. For this reason statutory “consensual” offences have been created for circumstances where consent, however immature or uninformed, is present.

D : Indecent Exposure

3.07

Indecent exposure is an offence at common law and also under section 4 of the Vagrancy Act, 1824 and section 18 of the Criminal Law Amendment Act, 1935. It is essentially a public nuisance offence and usually consists of exposure of the penis to a female. The offence is colloquially referred to as “flashing” and is usually directed towards young girls. Although it is not an offence involving contact or battery, it can be as profoundly upsetting for its young victims as an assault. It would not encompass exposure in private e.g. by a father to his daughter. The offence is discussed in detail in the Commission's Report on Vagrancy, (LRC 11–1985), chapter 8.

E : Incest

3.08

Before 1908, incest was not a specific criminal offence. Incestuous intercourse was criminal to the extent that it offended against the general provisions relating to rape, indecent assault and the protection of minors, or the law relating to public morality.¹³

Section 1 of the Punishment of Incest Act 1908¹⁴ made it a criminal offence for a male to have:

The consent of the female is immaterial.¹⁵

The Act gives the court power to divest the offender “of all authority over such female”,¹⁶ and to remove him from the position of being her guardian.

Section 2 of the Act (as amended) provides that:

is guilty of an offence.¹⁷

Section 3 of the Act provides that “brother” and “sister” are to include half-brother and half-sister, whether the relationship is traced through marriage or otherwise. Section 5 provides that proceedings are in camera.

3.09

Where the incest is consensual between two adults,¹⁸ and only one is charged, the other may be treated as an accomplice. In such a case, as was stated by Chief Justice Kennedy, in AG v O'Connor (No 2)¹⁹:

F : Competence and Compellability of Spouses

3.10

There are cases involving child sexual abuse in which one parent may be in a position to give material evidence implicating the other parent. This may indeed be critical in cases where the only other evidence is that of the child himself or herself and it may be, at the very least, dangerous for the court to convict in the absence of corroboration. In the case of a married couple, the question arises as to whether in such circumstances one spouse is a competent and compellable witness against the other.

At: common law, a spouse was neither a competent nor a compellable witness against the other spouse in criminal proceedings except where the charge was one involving assault, battery or other corporal violence by one spouse against the other, in which case he or she was competent but not compellable. The Criminal Justice (Evidence) Act 1924 provided that a spouse could be a competent witness for the prosecution against the other spouse where the prosecution was for an offence listed in the Schedule to that Act. But although the offences of rape, abduction and indecent assault were scheduled under the 1924 Act, the offences of incest and buggery were not. In our Report on Competence and Compellability of Spouses as Witnesses,²⁰ we recommended that spouses should be competent witnesses against each other in all criminal proceedings, but should not be compellable. None of the recommendations in that Report have been implemented, but there has been an important development in the law in the form of the decision of the Court of Criminal Appeal in D.P.P. v T.²¹ The Court held that in a case where one spouse was charged with a sexual offence against his or her child, the common law rule which precluded the other spouse from testifying against the spouse so charged had not survived the enactment of the Constitution. Delivering the judgment of the court, Walsh J said:

3.11

In that case, the question as to whether the spouse in such circumstances would also be compellable did not arise. It is stated in the judgment, however, to be a logical consequence of the court's decision that the spouse in such circumstances must also be compellable and that the decision of the House of Lords to a different effect in Hoskyn v The Commissioner of the Police for the Metropolis²² would not be applicable in this jurisdiction. However, it would seem that the observations of the court on this aspect of the law must be regarded as obiter. The decision also leaves open the question as to whether a spouse would be competent and compellable in a case where the other spouse was charged with a sexual offence against a child from outside the family.

FOOTNOTES TO CHAPTER 3

CHAPTER 4: OFFENCES : (2) PROPOSALS FOR REFORM

A : General Considerations

4.01

At the outset, we gave serious consideration to the creation of a distinct code of the sexual offences which could be committed with children or young persons. However, our researches disclosed that, apart from clarifying and broadening to some extent the range of sexual activity to be captured by the criminal law, no particular advantage was to be derived from changing existing definitions and providing a complete new range of offences. If there are too few prosecutions for child abuse at the moment, this should not be attributed to an absence of appropriate offences. Nevertheless, we are satisfied that the law can be improved in certain respects and in this chapter, provisional proposals are made for reforms in this area. Even in making such tentative proposals, we would prefer not to recommend a change where there is no problem of which we are aware under the existing law. If, as a result of consultation, it comes to our notice that any such problem exists, we will naturally address it at that stage.

4.02

It should also be observed that the Commission has already made proposals for reform of the law relating to sexual offences in its Report on Rape.¹ Most of these recommendations are reproduced in the Criminal Law (Rape) (Amendment) Bill 1988. In the present context, it is relevant to note that, if the Bill becomes law in its present form, three of the Commission's recommendations will not be implemented:

4.03

The tenor of the Report on Rape was in favour of gender neutral sexual offences and this has been reproduced in the Bill. We will continue the gender neutral approach in this Paper in so far as we can.

B. Non-consensual Offences

4.04

In the area of non-consensual offences, there is clearly a need for an offence of procuring an act of indecency with a young person. A child may be compelled as a result of a threat, or of having been otherwise put in fear, to perform an indecent act with an adult, e.g. fellatio, which would not strictly speaking constitute an indecent assault by that adult. At present, such acts have to be charged as assaults or not at all. This class of activity has a “consensual dimension” also and at the moment the similar offence of gross indecency under s.11 of the Criminal Law Amendment Act, 1885 may be charged against males only.

In England, after a recommendation from the Criminal Law Revision Committee, the Indecency with Children Act, 1960 was passed. Section 1(1) of that Act provides:–

There should be a provision proscribing such conduct in Irish law. We will return to matters of age and definition.

C. Consensual Offences

4.05

In the area of consensual offences, there would doubtless be general agreement that the objective of the existing criminal law, i.e. to protect the young against premature and potentially damaging sexual experience where the consent of at least one of the participants can be regarded as immature and uninformed, should be maintained. The present law is, however, also arguably in need of reform on a number of fronts.

4.06

Before examining these substantive objections, certain questions of terminology should be addressed. As we have seen, the law makes it an offence for a male to have “carnal knowledge” of a girl under the age of 17 with or without her consent.

Under s63 of the Offences Against the Person Act 1861, the somewhat old-fashioned expression “carnal knowledge” refers to vaginal sexual intercourse which is regarded as complete on proof of penetration only. Section 2(1) of the Criminal Law (Rape) Act 1981, in its definition of rape, uses the expression “unlawful sexual intercourse”, which again is defined by reference to s63 of the 1861 Act. It would seem desirable to maintain consistency of definition and, accordingly, we would recommend the use of the expression “sexual intercourse” in the legislation we are proposing, defined in the same manner as in the 1981 Act.

4.07

We must then consider how sexual conduct other than vaginal sexual intercourse should be defined for the purposes of the proposed legislation.

Sexual activity other than vaginal sexual intercourse is encompassed by s 14 of the 1935 Act which provides that consent cannot be a defence to a charge of indecent assault on a person under the age of 15 years. From the point of view of legal clarity and consistency, it is probably unhelpful to juxtapose assault and consent in this manner: if consent is truly vitiated by age, it was unnecessary to create the offence of “unlawful carnal knowledge” in s1. Writing about the similar legislation in England, the Criminal Law Revision Committee said:

However, the difficulties of replacing the present offence of “indecent assault with consent” should not be underestimated. In our Report on Rape, we

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recommended that the offence of “indecent assault” be replaced by one of “sexual assault”. That is a practical solution for cases in which there is an element of genuine assault, but for the type of offence now under consideration, where consent by definition is irrelevant, some other expression would be desirable. To render unlawful “sexual conduct” below a certain age presents difficulties since much of what could be described as “sexual conduct” would be quite harmless and probably necessary for normal development. A range of unlawful sexual conduct might have to be specified, and while it might be preferred to avoid this approach, it could be done, if necessary: as, for example, by proscribing bodily contact with the breasts, buttocks, anus, or sexual organs of another person or masturbation in the presence of another.

The alternative would seem to be to retain the expressions “indecency” or “gross indecency” without the element of assault. Several objections can be advanced against this approach. The activities are to be proscribed not because they are indecent in themselves but because participation in them at too young an age is perceived to be premature and ill-informed and may be obtained by exploitation of a position of authority or trust. The offence of gross indecency provided in s11 of the Criminal Law Amendment Act, 1885 is confined to males only, and the absence of a clear definition of indecency has given rise to difficulty in at least one recent prosecution.

The best approach may be to create and define a new offence in general terms and to provide that, without prejudice to the generality of the definition, it would include the specific activities listed above.

At paragraph 2.11 above, we provisionally recommend the adoption of the Western Australian Task Force's definition of child sexual abuse for the purposes of civil care proceedings. It would be highly desirable to maintain, where possible, consistency of definition between the civil and the criminal law in this area. One could, for example, use the Western Australian terminology and create an offence of sexual “exploitation”, defining it in general terms as the doing or procuring of an act other than sexual intercourse or anal penile penetration with a person of a specified age for the purpose of sexual gratification. We welcome views.

4.08

We now come to the general criticisms that may be advanced of the present law in relation to consensual heterosexual offences, i.e. principally the offences of unlawful “carnal knowledge” and “indecent assault with consent”. It should be said at the outset, however, that the Commission is not aware of any demand to change the essence of these offences. It is generally accepted that the law should seek to ensure that young people do not have their childhood “stolen” from them by unwanted pregnancy or premature participation in a complete sexual relationship.

Notwithstanding the absence of a vocal demand for change, an argument may be advanced that the present law relating to carnal knowledge is unjust. The Comment on s213.1 of the Model Penal Code of the American Law Institute

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says:

4.09

It is generally accepted that the carnal knowledge offences were created to protect young girls from men and from themselves. An extract from a judgment in a Virginia case perhaps typifies the rather quaint thinking which lay behind a typical “statutory rape” offence in the 1930s:

Most cases in Ireland concern a boy and girl of roughly the same age. The girl becomes pregnant, the boy or his family fail to reach an amicable settlement with the girl's family and the girl's family then report the matter to the Gardai. This is made all the more easy for the girl's family because of the fact that only the boy commits an offence in these circumstances.

4.10

The primary object of the law in this area should be to prevent the abuse of authority and trust, not to render criminal the exploratory sexual activities of young persons of the same age. Ideally, the law should confine itself to sexual activity by persons in authority, inside or outside the family, with children, or perhaps by any person a specified number of years older than the victim. However, while it would seem possible to provide a workable definition of “persons in authority” for this purpose, seeking to establish differences in age which would render consensual sexual activity unlawful presents far greater problems in practice. We also think that it would be generally regarded as unacceptable that children under a certain age should be exposed to risks of pregnancy and/or disease even where that is the result of consensual sexual activity with people of their own age.

4.11

We start from the premise that, under a specified age, all sexual activity with children, whether it consists of sexual intercourse, anal penile penetration or some lesser form of sexual conduct, should be unlawful. It is beyond argument that sexual intercourse with a girl aged, say, 7 or sexual activity falling short of sexual intercourse with a girl of that age should always be unlawful. Accordingly, the first matter to be addressed is the age below which all such sexual activity should be unlawful.

At present, as we have seen, it is an offence to have sexual intercourse with a girl under the age of 17. Where the girl is under the age of 15 years, the maximum available penalty is penal servitude for life. Where the girl is between 15 and 17 years of age the maximum available penalty is 5 years penal servitude. It will also be recalled that in the case of a girl under 15, it is no defence to a charge of “indecent assault” that she consented and accordingly all sexual activity with a girl of that age is prohibited”.

Under our law, accordingly the age of consent is at present 17. In some other countries with similar legal systems and broadly comparable social conditions, it is lower. Thus, in the United Kingdom, it is 16,⁵ as it is in the Model Penal Code in the United States.⁶ The Commission has no particular competence to advise in this area and we think it is probably sufficient to point out the disparity between this and other jurisdictions and to draw the attention of those concerned to the obvious fact that much has changed since the age was last fixed by the Oireachtas in 1935. The law, however, does not appear to be presenting any particular problems in practice in this area.

4.12

The age at which the penalties should become more severe is more problematical. Under the present law, it is 15. We cannot say what reasons prompted the Oireachtas to fix this age level in 1935: it had been fixed at 13 by the Criminal Law Amendment Act 1885 but was increased to 15 in 1935 when the upper age limit was increased to 17.

Most people would agree that there is a major qualitative difference between an offence which consists in a man having sexual intercourse with a girl aged 7 and with a girl just short of her 15th birthday. It is not simply that the first offence is inherently and significantly more repellant than the second. The question of consent is crucial in this context: the innocent 7 year old does not consent in any meaningful sense, since she lacks a fundamental appreciation of what the act is all about. The 14 year old, in the typical case, consents in a meaningful sense, but the law denies efficacy to her consent for reasons of policy. If this analysis is correct, the law should fix the dividing line for determining the gravity of the offence at the median age of puberty, as it did prior to 1935. Thus, in the United Kingdom, the age is fixed at 13. (The Criminal Law Revision Committee in their 15th Report on Sexual Offences considered a proposal to lower it to 12, as more accurately reflecting the age of puberty, but rejected it on the ground that girls at the age of 12 normally began to attend senior school and hence were at a vulnerable stage in their lives since there was a risk that they would imitate the behaviour,

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including the sexual ways, of older girls).⁷ The U.S. Penal Code fixed the age at 10: below that age sexual intercourse is treated as rape.⁸

Since the onset of puberty cannot be definitively fixed by reference to a particular age, any age limit must be a somewhat crude measure of criminal liability. The Model Penal Code rejects 12 – normally, it would seem, accepted as the median age for the onset of puberty – on the ground that it would be illogical to set the age limits so high that half the individuals in the class defined would fall outside the rationale for its definition.

4.13

Although age limits in this area are necessarily arbitrary, the age in this country of 15 on one view seems particularly difficult to justify. It cannot, on any view, be related to the onset of puberty and it exposes, theoretically at least, the 18 year old boy to penal servitude for life if he has intercourse with a girl nearing her 15th birthday. This, of course, is the position although the girl may have been the instigator of the intercourse and will escape scot free. Moreover, as we shall see in a moment, under our existing law it is no defence for the boy to plead in such circumstances that he genuinely believed the girl to be older that she was and this even in circumstances where a jury would be entitled to conclude that he had reasonable grounds for his belief and may have been misled by her. No doubt, prosecutorial discretion and flexible sentencing can, and probably does, avoid the grosser injustices which such a law could produce: nonetheless, its retention on the statute book in this form is at least questionable. At the same time, we recognise the practical problems involved in actually lowering an age limit of this nature, at a time when many parents are understandably concerned by the perils to which children are exposed to-day.

The difficulty, of course, in having two “age bands” for offences of this nature is that there is bound to be a sharp “lurch” from one range of penalties to another, no matter where the age is fixed. Thus, the concern that might legitimately be voiced at exposing a young person to a sentence of penal servitude for life for intercourse at the upper end of the scale, just short of 15, must be balanced by the concern that would equally be felt by providing a maximum sentence of 5 years penal servitude for a mature man who had intercourse with a girl of 13. Accordingly, if it were thought desirable to fix the age for the more serious offence at a more realistic and appropriate level, such as 13, one would also have to consider the desirability of increasing the maximum penalty for the lesser offence to, say, 10 years.

We do not know whether the age limits fixed by the 1935 Act are giving rise to problems in practice. We welcome views on the matter generally and we would be particularly concerned to ascertain whether there is a justification for the age limit of 15 which may have escaped us. We would also be concerned to know how the law is operating in practice. It may be that the queries we have raised as to the appropriateness of the age limits are academic. There are, as we have said, sound pragmatic reasons for leaving them unaltered.

4.14

Surprisingly enough, the age limit for sexual conduct with young girls falling short of vaginal sexual intercourse, i.e. 15, is lower than in the United Kingdom, where it is the same as for unlawful carnal knowledge, i.e. 16. This is another, and even more puzzling, consequence of the 1935 legislation, the general policy of which was, of course, to increase the age of consent for heterosexual intercourse.⁹

While no one would wish to criminalize teenage “petting” between the ages of 15 and 17, it might seem unjustifiable to allow all sexual conduct short of vaginal sexual intercourse between older men and girls of this age. As we have had occasion to point out, prosecutions resulting from teenage sex only arise in practice when the girl becomes pregnant, so that the criminalisation of teenage “petting” is more theoretical than real. It might be considered desirable, in these circumstances, having regard to the need to protect girls of this age from older men, to make sexual activity other than sexual intercourse criminal where there is a significant age difference between the under-age girl and the older man, but no relationship based on authority or care. The contrary argument would be that the present age limit is not presenting any problems in practice and that the risk arising from such conduct between older men and young girls will be met by our proposal that it would be an offence for a person in a position of authority to engage in such acts. Again we welcome views.

4.15

The next question that arises is as to whether the law should provide a defence to charges of this nature where the man is genuinely mistaken as to the age of the girl. In the case of the carnal knowledge offences, the position at common law was that a man who mistakenly believed, even on reasonable grounds, that the girl was over the relevant age, had no defence.¹⁰ The proviso to section 5 of the Criminal Law Amendment Act 1885, however, allowed a defence where the man had reasonable cause to believe that the girl was above the age of 16 (then, as we have seen the age of consent in Ireland). This proviso was removed, without any debate, in the 1935 Act. In England, in 1922, an attempt had been made to remove it which resulted in a legislative compromise known as “the young man's defence”. This provides that a man charged with such an offence has a defence if he is under 24 and proves that he believed on reasonable grounds that the girl was aged 16 or over, provided that he had not been previously charged with a “like” offence.

The dilemma posed where a court fixes a necessarily arbitrary age limit of this nature has led to much discussion among commentators. Generally speaking, in the case of serious crime, our law requires proof of mens rea which, for the purposes of this discussion, can be crudely and somewhat inaccurately described as an intention to commit the acts which make up the offence with which a person is charged. Under the present law, the offences we are considering can be committed by a person who has no intention of committing them. That, at first sight, would appear to be a serious defect in the law. It has been pointed out, however, that one should perhaps distinguish in this context between cases in which the accused simply does not

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address his mind in any way to the question of the girl's age and those in which he does so but is mistaken, on reasonable grounds, as to her age. It is obviously the second category of cases that gives rise to concern.

In England, the Criminal Law Revision Committee have recommended the abolition of “the young man's defence” and, given that it was clearly a flawed and unsatisfactory compromise in the first place, it has little to commend it. Consistently with our view that, while age limits for the victims are unavoidable, age limits for the accused present major and avoidable difficulties, we do not recommend its adoption. The Criminal Law Revision Committee have proposed in its place a general defence of mistake as to the girl's age, not dependant on the age of the accused.¹¹

4.16

The Model Code provides that

The sharp distinction drawn here – confining absolute liability to the more serious crime – has much to commend it. However, if the age were to be fixed higher – e.g. at 13 or upwards – the reasons for making such a distinction are less coercive. Thus, under the English existing and proposed law, the defence is available throughout the spectrum, for the obvious reason that in the lower age reaches it would be next to impossible for the accused plausibly to claim that he mistakenly thought the girl to be over 16. A passage in the commentary on the Model Penal Code is nonetheless of considerable interest:

This is an impressive argument which requires careful consideration. It could, however, be said that the same man who engages in consensual intercourse with young girls without even enquiring as to their age is at least displaying recklessness if, basing his judgment on purely physical considerations, he takes the risk that they may be under-age. Society's prohibition is based on considerations of emotional rather than of physical maturity. To change the present absolute offence and provide a defence based on physical appearance would turn the complainant into an exhibit as well as a witness and reduce the protection afforded at present to the more physically mature complainant by making a prosecution in respect of her exploitation “defendable” as distinct form a prosecution in respect of exploitation of a girl who “looks her age”. It could, no doubt, be urged that sexual offences with young persons belong to so serious a category of crime that the legislature is fully justified in making them absolute offences. It should also be said that we are not aware that the present law has in practice produced any cases of serious injustice. We await views, however, as to whether there is indeed room for an improvement in the law.

4.17

If the law were changed, a further question would arise as to how the mens rea is to be defined. We have considered similar problems in our Consultation and Discussion Papers on Receiving Stolen Property, Rape and Malicious Damage. Again, we have to consider whether a defence of this nature should be subjective or objective. A subjective defence would result in an acquittal where the accused, in the opinion of the judge or jury, genuinely believed the girl to be over the requisite age, although there were no reasonable grounds for that belief. This is the position recommended by

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the Criminal Law Revision Committee and it will be noted at once that it closely parallels the approach to a similar problem in rape favoured by a majority of the House of Lords in Morgan¹⁴ In the case of rape, the issue is, of course, different, namely, as to whether the woman was consenting to the intercourse. It will be recalled that the majority opinion in the House of Lords was that, where the accused genuinely believed that the woman was consenting, the fact that there were no reasonable grounds for that belief was irrelevant. An objective defence would only allow of an acquittal where the accused genuinely believed that the girl was over the relevant age and there were reasonable grounds on which he could hold that belief. It will be recalled that the Criminal Law (Rape) Act 1981 in this jurisdiction provided a compromise between the subjective and objective positions: the accused is entitled to be acquitted if he genuinely believed the woman was consenting, but in arriving at a conclusion as to whether he did so believe, the court is entitled to take into account whether there were reasonable grounds on which he could hold such a belief. Our provisional view is that a similar approach should be adopted to the problem under consideration, but we of course welcome views as to whether this achieves the correct balance. We would also favour a provision, again similar to that which we have proposed in the cases of Receiving Stolen Property and Malicious Damage, which would treat a reckless indifference on the part of the accused as to whether the girl was under or over age as providing the necessary mens rea.

4.18

The question of drunkenness also inevitably arises in the context of this defence. We have pointed out on more than one occasion (most recently in our Report on Malicious Damage) that this whole problem of drunkenness as a defence will have to be ultimately addressed by us, but is probably best considered in the context of the criminal law as a whole. The Commission are at present considering, as part of their next programme of law reform, a project for the codification of the entire criminal law and that would seem to be the appropriate context in which this subject, along with other general questions of criminal responsibility, should be examined in depth.

4.19

The present law appears deficient in other respects:

Apart from these deficiencies, there will be a further lacuna if the judgment of the European Court in Norris v Ireland¹⁵ is given effect. Homosexual activity among males and females between the ages of 15 and 17 will be lawful, unless new offences are created.

4.20

The first of these difficulties could be met by providing higher penalties in the case of a person in a position of authority over the other participant or significantly older than him or her. We think that there would be general agreement as to the desirability of such a distinction being drawn by the law. However, while there should be no insurmountable difficulty in defining in this context who “persons in authority” are, establishing a difference in ages sufficient to attract liability for an offence or greater penalties is far more problematical. While fixing an age limit in the case of the victim also presents difficulties, since whatever age is chosen, it is bound to appear to some extent arbitrary, that is an inescapable feature of the sort of law with which we are concerned. It seems to us, however, that such problems should be avoided wherever possible, and, accordingly, we would not favour the creation of a necessarily arbitrary age band between victim and offender which would involve the incurring of liability or the infliction of greater penalties.

4.21

The second difficulty can be met by providing that any person who engages in sexual intercourse with another person between these ages is guilty of an offence, irrespective of their sex. It would, of course, follow that where a girl had intercourse with a boy between the ages of 15 and 17, the girl would be guilty of an offence and, where she was in a position of authority in relation to the boy, e.g. a school teacher, would be liable to the high penalties.

While this latter consequence might be considered reasonable, some would have serious reservations as to whether in the case of sexual intercourse with very young people, say between the ages of 8 and 15, the girl or boy should also be liable to criminal prosecution. An attempt to make the girl liable in such circumstances as an accomplice was rejected in Tyrrell,¹⁶ Lord Coleridge CJ declaring:

There are undoubtedly arguments for maintaining the law as it is. Section 3 of the Criminal Law Amendment Act, 1935 provides that on a trial for rape of a girl between 15 and 17 years of age, the jury may convict the accused of carnal knowledge under s2 of that Act if not satisfied that he is guilty of rape. If the proposed alteration were made, a jury so finding could be perceived, in effect, as finding the complainant guilty of the same offence as the accused. Under the law of rape as it stands with its subjective approach to the guilt of the accused, a jury can acquit an accused of rape and convict him of the lesser offence while still being satisfied that the girl did not consent to sexual intercourse. Fear of being disbelieved is a very real element in discouraging some bona fide victims of rape from coming forward. If a fear of being exposed or of being perceived as exposed to criminal liability were added to existing fears, one could, for the best possible motives, create a highly

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unwelcome deterrent. The imposition of equal criminal liability where, for example the girl is very young and the man significantly older might be perceived as unfair and unduly severe on the girl. An exceedingly high premium would be placed on the use of prosecutorial discretion. Prosecutorial discretion appears to cope well with the anomalies that undoubtedly arise from time to time under the present law and our provisional view is that the law should remain as it is.

4.22

If an offence based on abuse of authority were introduced, it would render incest to that extent less necessary and relevant an offence. We welcome views as to its retention as a specific offence, independent of the ordinary criminal law, e.g. for brothers and sisters.

It would also seem desirable that it should be an offence when a person in authority sexually exploits a girl between the ages of 15 and 17. At present, provided there is no sexual intercourse or buggery, any other consensual heterosexual activity is permissible with girls of 15 and 16. While girls of that age should be better able to cope than younger girls, nonetheless they are still vulnerable, particularly within the family.

4.23

There remains the question of homosexual activity. At the time this Paper is written, it seems probable that a decision will be taken in the relatively near future to introduce legislation bringing our law into conformity with the ruling of the European Court of Human Rights in Norris v Ireland.

In Norris v Attorney General,¹⁷ the Supreme Court by a majority decision rejected the challenge by the plaintiff to the constitutionality of ss61 and 62 of the Offences Against the Person Act 1861 and of s11 of the Criminal Law Amendment Act 1885 which render criminal acts of buggery and gross indecency between male persons, whether committed consensually or otherwise. However, in Norris v Ireland, the European Court of Human Rights found that the retention on the statute book of these offences constituted a breach by the State of Article 8 of the European Convention of Human Rights. In reaching its decision, the Court noted that:

Following the decision, the Government announced that the implications of the judgment of the Court of Human Rights were being considered in the Department of Justice. At the time this Paper is written, there has been no announcement as to the form any legislation which might be thought to be necessary in the light of the decision might take. The Commission assumes, however, that the State will wish to continue as a party to the Convention

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and accordingly the Paper proceeds on the hypothesis that the sections referred to in Norris v Attorney General will in due course be repealed and replaced.

4.24

In considering what legislation should be introduced in this area, the Commission finds it instructive to refer to one of the judgments delivered in the Supreme Court in Norris v Attorney General. In the course of his dissenting judgment, Henchy J said:

4.25

In the view of the Commission, this passage forms the essential framework within which any new legislation must be enacted. It may be said at the outset that it would be clearly insufficient to leave the impugned offences on the statute book while providing that a congenital disposition to homosexuality should be a defence. Apart from other objections, it would obviously be difficult to prove or disprove the presence or absence of such a disposition. We think the proper approach is to treat consensual homosexual activity as prima facie lawful, but to provide for carefully defined circumstances in which, for diverse reasons, it should be unlawful. This, of course, is the manner in which the law at present approaches consensual heterosexual activity. The difficulty which has to be confronted is whether the exceptions in the case of homosexual conduct should be different from those in the case of heterosexual conduct and, in particular, whether the age at which the criminal law ceases to regulate sexual conduct should be any different in the case of homosexual acts.

In this context, it should be noted that Henchy J, in listing the criteria which he considered could be relevant in determining whether homosexual acts should be made criminal, referred to the maintenance of the family and the

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upholding of the institution of marriage. The learned judge almost certainly did not intend to convey in this passage that homosexual activity by married persons should be rendered criminal. It would clearly be illogical and anomalous for the criminal law to outlaw homosexual activity by a married person on the ground that it is damaging to the institution of marriage but to permit adultery which is also seriously damaging. It would seem that the references to the protection of marriage and the family refers to the desirability of confining homosexual activity to adults, thereby enabling the young to develop as heterosexuals without being diverted into homosexuality.

4.26

We accordingly approach our consideration of this area of the law on the basis that

In considering whether a different age should be fixed at which consensual homosexual activity ceases to be criminal, the approach to the problem in other jurisdictions should be noted.

4.27

In England and Wales, the Sexual Offences Act 1967, which implemented the recommendations of the Wolfenden Committee on Homosexual Offences and Prostitution, provided that homosexual acts between consenting adults in private were not to be criminal. Adults were persons who had reached the age of 21, at that stage the age of majority in many other important areas of the law. In X v The United Kingdom,²¹ the European Court of Human Rights had to consider a complaint by the applicant that the fixing of the homosexual age of consent at 21 rather than at 18 was an interference with the applicant's right to privacy and that the fixing of different ages of consent for homosexual and heterosexual relations constituted discrimination under Article 14. The European Commission of Human Rights rejected the complaint and the following passage in their decision is of interest:

4.28

It is interesting to note that subsequently the Policy Advisory Committee recommended²³ that eighteen rather than twenty-one should be the age of consent for homosexual relations and the Criminal Law Revision Committee²⁴ adopted their advice without further discussion.

J Clifford Hindley has analysed the findings of the Policy Advisory Committee in some detail.²⁵ Whereas ten of the Committee were in favour of eighteen as the age of lawfulness and five in favour of sixteen as the appropriate age, two of that ten would have supported sixteen as the correct age had there been in addition a special offence relating to the abuse of authority or “special relationships” in the Committee terminology.

Hindley proceeds to analyse the medical evidence furnished to the P.A.C. The majority view was against sixteen and in favour of eighteen but the Royal College of Psychiatrists, which seemed to the author “to have been the only institutional submission to discuss seriously the question of maturation in young people and its bearing on the age of consent”,²⁶ came out in favour of the age of sixteen for male homosexuals. They referred to the argument that sex at the age of sixteen is likely to have less traumatic potential for a young man than for a young woman (who runs the risk of an unwanted pregnancy). While acknowledging that biological development is somewhat slower in boys than in girls, and that homosexual relationships may be more difficult to maintain (particularly in the face of society's disapproval), they on balance rejected the idea that homosexual seduction at a later stage could reverse a person's basic sexual orientation which is settled early in life. They considered that the Wolfenden legislation had largely undermined the moral argument against homosexual practices, and that stigmatisation of homosexuals caused distress and increased the risk of blackmail. They concluded that the age of consent should be the same for heterosexual and homosexual practices.²⁷

Hindley also refers to the following:

4.29

In X v Federal Republic of Germany,²⁹ the European Commission of Human Rights considered and rejected a claim that a provision of the German Criminal Code rendering a man over the age of eighteen who committed an indecent assault on a man under twenty-one liable to punishment was contrary to the Convention. The Commission noted that at the time of the application, masculine homosexuality was no longer criminal in the Federal Republic and said that:

4.30

The Law Reform Commission of Victoria has the following to say on these questions:

4.31

It may finally be noted that homosexual relations are permitted in the following countries at the following ages:

4.32

The age at which the criminal law should cease to regulate consensual sexual activity is, as we have said, not a topic on which a body such as the Commission can offer any particularly informed view. It is, however, clear

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that any law which discriminates between heterosexual and homosexual activity in this context at the very least requires justification. Anomalous distinctions of this nature between the rights of men and women should, if possible, be avoided. We have been unable to discover any compelling argument for fixing the age at which homosexual consensual conduct should be permitted at, for example, 18 or 21 while maintaining the age in respect of heterosexual activity at 17. Our provisional conclusion is that, assuming the age for consensual heterosexual activity remains at 17, no case has been established for fixing a higher age for homosexual activity. We welcome views.

4.33

As we have already said, our approach is to impose the same constraints on homosexuals and heterosexuals. Clearly all homosexual activity with children under 15 or by persons in authority with children between the ages of 15 and 17 should be proscribed. The question remains as to whether there should be an offence for homosexuals which mirrors the present offence of unlawful carnal knowledge of girls between the age of 15 and 17. We accept that the primary motivation behind the creation of the latter offence was the protection of young girls from unwanted pregnancy. Nevertheless, in the light of the age of consent in other jurisdictions and of our desire to impose the same constraints on homosexuals and heterosexuals, we propose the creation of the appropriate “mirror” offence for homosexuals, i.e. engaging in anal penile penetration where one of the parties is over the age of 15 but under the age of 17. The alternatives would be to legalise consensual buggery with boys between 15 and 17, or to prohibit all homosexual conduct between those ages. The first would mean a significantly lower age for consensual buggery than in many other countries and would probably be an impractical recommendation. It could also have implications for the spread of AIDS. The second would unreasonably discriminate between heterosexual and homosexual activities. In making our tentative proposal, however, and in equating anal with vaginal intercourse for that purpose, the Commission does not intend to diminish or alter the significance of vaginal sexual intercourse in any other context. Again, to preserve consistency in the treatment of heterosexual and homosexual activity, it should be an offence for acts of a homosexual nature to be committed by a person in authority with persons over the age of 15 but under the age of 17.

D: Provisional Recommendations

4.34

Our provisional conclusions may, accordingly, be summarised as follows:

FOOTNOTES TO CHAPTER 4

CHAPTER 5: EVIDENCE: (1) THE COMPETENCE OF CHILDREN AS WITNESSES

5.01

In this chapter, we consider the present law as to the competence of children to give evidence, a matter obviously of crucial importance in prosecutions for alleged sexual abuse of children. However, while we are examining the question in the context of the criminal law, it should be remembered that many of the problems considered are common to both criminal and civil litigation. It is also as well to stress at the outset that because of the general requirement of the law that all oral evidence must take the form of sworn evidence, the competence of children as witnesses has generally been determined by a judicial assessment as to whether they know the nature and consequences of an oath. Manifestly, that is not the only criterion by which the competence of any one, adult or child, to give evidence can be ascertained. Having set out the present law, we accordingly go on to examine the general question as to whether there should be a specific threshold requirement as to competence in the case of children. We then proceed to consider, on the assumption that there should be such a threshold, how competence is to be determined in the case of children. This in turn necessitates a critical examination of two requirements of the present law, i.e. the requirement that in certain circumstances the evidence of a child be corroborated before it is accepted and the general requirement that oral evidence should only take the form of sworn evidence.

A: THE PRESENT LAW

General Principles

5.02

The competence of a child to give sworn evidence “is a question, not of age, for there is no precise limit of age fixed by any rule within which the evidence of children on oath is to be excluded, but it is a question of the intelligence and actual mental capacity of the child witness, its sense and

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reason of the danger and impiety of falsehood.¹”²

In R v Brasier,³ in 1779, the relevant principles at common law were first clearly laid down. The court was unanimously of opinion that:

In Brasier, the oath was understood as an appeal to God to witness the truth of what was being said, in the belief that lies would be met with divine retribution. Therefore it was considered appropriate in later cases for the trial judge to enquire of a child whether he or she had a belief in God and in the religious consequences of lying. At times, however, the enquiry tended to concentrate on, or limit itself exclusively to, the question whether the child had a consciousness of the moral obligation to tell the truth.

5.03

In England the issue came to a head in R v Hayes⁴ in 1976. There the enquiry in relation to a boy of 12 had involved his being asked if he had religious instruction at school, to which question he shook his head. Then the judge said: “You don't? Do they teach you about the Bible? Have they told you about God or Jesus?” The boy answered “No”. The judge asked: “Do you know what I mean by God? Have you heard of God? The boy replied “No”.

Later the following series of questions and answers took place:

Q. Do you think there is a God? A. Yes.

Q. You know what it means to tell the truth, don't you? A. Yes.

Q. You know it's important to tell the truth? A. Yes.

Q. Not to tell lies. You understand that it is important particularly today when you are here? A. Yes.

Q. Will you promise before God that you will tell the truth? A. Yes.

Q. And you will stick to that? A. Yes.

The boy was then permitted to take the oath.

The Court of Appeal, Criminal Division, held that the boy's evidence had properly been admitted. Bridge LJ delivering the judgment of the Court, said:

Commenting on this approach, Ryan and Magee observe that:

Conducting the Enquiry

5.04

The enquiry by the judge as to whether the child has the capacity to give sworn evidence must take place before the jury. In R v Dunne⁷ in 1929, a child of seven in a prosecution for incest had been brought to the judge's chambers for the purpose of examining her capacity to understand the nature of the oath. The Court of Criminal Appeal quashed the defendant's conviction, which had been supported by the child's evidence. Lord Hewart CJ said:

5.05

The same view was taken by the Court in R v Reynolds⁹ in 1950, where, in a charge of indecent assault against an 11-year-old child who was attending a school for mentally handicapped children, the chairman of Quarter Sessions had ordered the jury to retire while evidence about the child was being given by a school attendance officer on the issue of whether she was possessed of sufficient intelligence to justify the reception of her unsworn evidence. The Court of Criminal Appeal held that this evidence should have been given in the presence of the jury and that accordingly the conviction should be quashed.

Lord Goddard CJ said:

Expert Testimony as to the Child's Mental Capacity

5.06

In R v Reynolds¹¹ the Court of Criminal Appeal also addressed the question whether a witness (expert or otherwise) may be called to assist the court in determining the child's mental capacity. What Lord Goddard CJ went on to say on the admissibility of this evidence is of some interest:

Unsworn Testimony by Children

5.07

It is useful at this point to note that the unsworn evidence of children may be heard by the court in some circumstances.

Section 30 of the Children Act 1908¹³ enables the court to hear the unsworn evidence of a child “of tender years” who is “tendered as a witness”, even though of opinion that the child cannot understand the nature of the oath, if the court is of opinion that the child is “possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth”.

Section 30 goes on to provide that a person is not liable to be convicted of the offence unless the unsworn testimony given on behalf of the prosecution is “corroborated” by some other material evidence in support thereof implicating the accused.

The Relationship Between the Enquiries as to Capacity to Give Sworn and Unsworn Evidence

5.08

The relationship between the enquiries carried out by the court as to the child's capacity to give sworn and unsworn evidence, respectively, was addressed by the Court of Criminal Appeal in AG v O'Sullivan¹⁴ in 1930.

In this case the appellant had been convicted of attempted sodomy on the basis, in part, of the sworn evidence of a boy aged about ten years. This evidence had been received without protest during the trial.¹⁵ Counsel for the appellant, on appeal, argued that under section 30 of the 1908 Act (as amended) the court should have held a preliminary examination to satisfy itself that the child, whom it was proposed to examine on oath, was competent to give evidence at all and if so whether he could do so under oath. He contended that the definition of “child” in section 131 of the Act indicated that a child under 14 years should be regarded as being “of tender years”.

The Court of Criminal Appeal rejected these contentions. Kennedy CJ, delivering the judgment of the Court, said bluntly that counsel for the appellant had “quite misread”¹⁶ section 30.

This passage may give rise to some difficulty in its practical application. It fails to address the question of what should be done in a case where under the law as it stands the child is sworn and gives his evidence but during cross-examination his capacity to give sworn evidence is successfully challenged. If the judge is to “strike out the evidence and withdraw it from the jury”, is there any procedure for saving the evidence under section 30, and treating it as unsworn testimony, assuming, of course, that the child fulfils the requirements of section 30 so far as unsworn testimony is concerned? To allow the child's evidence to stand, thus retrospectively recharacterised, might raise constitutional difficulties.

B : SHOULD THERE BE A THRESHOLD REQUIREMENT AS TO COMPETENCE?

General Considerations

5.09

The issue to be considered goes deeper than the adequacy of the present test of competence, based on capacity to understand the nature of the oath. A more fundamental policy question is whether there should be any threshold requirement of competence for children.

It may be thought to be self-evident that courts should always satisfy themselves as to the competence of children to give evidence. But this does not mean that children should be subjected to a distinctive test as to competency. It is useful to note Wigmore's proposal to abolish competency requirements for children:

We should at this point make it clear that, in determining what principles as to competence should apply, we are not affected by any argument based on the need to change the principles because this would increase the number of successful prosecutions. The short answer to such an argument is that pragmatism is no substitute for justice. It is obvious that any relaxation of the present restrictions on evidence may well increase the level of convictions; but, unless the particular relaxation is justified on principle, it would be quite wrong to introduce such a change.

Some Preconceptions Examined

5.10

Before we proceed further we consider it necessary and useful to examine and confront some preconceptions about the reliability of the evidence of young children.

(a) That children's intellectual and memory immaturities make them unreliable witnesses

5.11

Children's intellectual and cognitive development does not proceed in a steady linear way. There are very considerable differences among children within the same age range. Thus, predictions based on age-related competence are very difficult to make. Even children as young as three or

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four, if questioned appropriately, can show impressive perceptual and memory skills and can make reliable witnesses.

With regard to memory, older children perform better at memory tasks then younger children, but not in all circumstances. Younger children may remember events but have difficulty retrieving these events from memory. Prompts and cues will significantly improve their recall. But while questioning may improve their recall this may be accompanied by more errors. The errors will tend however to be in relation to peripheral rather then central events. Since memory depends on specific skills for recall as well as general cognitive development, a child may perform inconsistently from one task to another. When events are familiar and important to a child, recall is good. Children's spontaneous recall improves steadily with age. For younger children it is the completeness of their account not the accuracy that is deficient. For all ages the number of errors and fabrications remains low and does not increase for the younger age groups. Like adults, children remember central events better then peripheral events. Their recall of persons or incidental detail is less accurate. Children may experience difficulty putting events in the order in which they occurred. However, for events of central importance, even very young children can record them in the correct temporal sequence. Children's memory deteriorates when they are asked to use internal cues that require systematic searches of their memory or to recall only those items that fit specific criteria, (for example asking a child how many times or in what circumstances did her father put his finger inside rather then outside her vagina). Sensitive and appropriate questioning techniques can significantly improve a child's recall. The most productive interviewing techniques include establishing a rapport with the child, encouraging the recall sequence to begin prior to the critical incidence and allowing children to recall at their own pace. The most non-productive interviewing techniques include the interviewer reaching premature conclusions and through a series of legal questions and suggestions attempting to get the child to conform to that belief. Careful questioning, particularly when the material is familiar to them, can result in children's recall that is equal to or better than adults.

With regard to identity recall, the research is more limited. The available research suggests that children typically report very little information on the physical appearance of an unfamiliar person but that the detail they report is accurate. Being questioned about detail can increase the risk of inaccurate recall but this is true of adults too. Children's ability to make identifications from photographs or identification parades is not good. But again adults are also liable to be misled in this kind of task.

(b) That children are highly suggestible

5.12

There is little evidence to support the belief that children of five or older are more suggestible then adults. Suggestibility is not solely related to age. Age differences in suggestibility between children and adults may not be found if an event is understandable and interesting to both adults and children

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and if their memory for it is equally strong. But if delay weakens a child's memory relative to an adult's, age differences in suggestibility may be found. In that case the remnants of the event in the child's memory may not be strong enough to resist suggestions especially from authoritative others.

Adults and children are much less suggestible regarding the details of central rather then peripheral events. Children as young as three years will resist suggestions that try to alter their memory for central events. Children are much less suggestible regarding events that are familiar and lie within their own range of experience. When children yield to suggestion it may represent their willingness to comply with a powerful adult rather than representing a real change of mind. Children are likely to later revert to the truth or will simply be unsure of the correct answer. This implies that even if children have been coached in their evidence or if their evidence has been distorted by leading questions it is likely that later questioning immediately preceding or during the trial will expose the problem.

Young children may be easily misled by the status or authority by the person questioning or making the suggestion. But these status effects are at least equally strong for adults. The desire to conform socially can also influence a child particularly the very young age groups and make them more liable to suggestions. But studies show that conformity effects are stronger for peripheral rather then central events. The risks of suggestion through leading questions may be higher for cognitively sophisticated children who understand the subtler nuances of language. A child whose memory for an event is strong will be more resistant to suggestions then a child whose memory for the same event is weak. The problem of children's suggestibility could be largely resolved by reducing the number of interviews a child is subjected to. Some children report after repeated interviews with different lawyers that they no longer had any independent memory of the events that transpired. A video-taped recording of the child's first and all subsequent interviews could be scrutinized for evidence of the child yielding to suggestion.

(c) That children are unable to distinguish between fantasy and reality

5.13

Children do not consistently confuse fantasy with realities. It is very unusual for children to fabricate completely a series of events or to fantasize about a sexual assault. The few documented cases reveal a host of undesirable interviewing practices. Children do sometimes recall details that were not actually part of an event, a phenomenon known as “elaborated recall”. However this may be a greater problem with adults and older children who tend to draw inferences from what they experience. For example, adults are more likely than young children to recall that a room became dark when told that a light-switch was turned off.

(d) That children lie about sexual abuse

5.14

The widespread belief that children lie about sexual abuse was largely

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based on the belief that sexual abuse was rare and when it occurred was perpetrated by pathological strangers. The data now available on the incidence of child sexual abuse, particularly intra-familiar abuse, seriously undermines that belief. Recent developmental studies indicate that children who recant their disclosures or change their stories generally do so not because they are lying but because of family pressure, faulty interviewing practices and undue delays in investigating and bringing their cases to trial. There is some evidence that parents involved in bitter custody disputes may fabricate stories of child sexual abuse. Proper investigative procedures together with children's difficulties in sustaining a coaxed story should reveal those false allegations. In addition recent developmental studies indicate that children of three years or less are incapable of systematic lying due to their limited cognitive resources. The research commissioned by the Badgley Committee on Sexual Offences Against Children and Youth in Canada showed that the vast majority of sexual assaults on children were considered by the police to be “founded” and that the reports of young children were typically perceived by the police to be both truthful and sufficiently detailed. “It would appear that, at least in the context of child sexual abuse, the requirement of corroboration for a very young child's testimony has traditionally been based on both untested and unfounded assumptions about the intrinsic reliability of children's evidence”.²¹

5.15

The reviews of the psychological evidence have come to broadly similar conclusions regarding children's competence as witnesses:

5.16

Although expressing caution about relying on the uncorroborated evidence of children under five, the Hederman Report concluded that:

5.17

Finally, an American legal researcher, on the basis of his review of current research has concluded:

5.18

We do not consider it desirable to remove completely a competence test for children, though we accept that this test need not have to be a distinctive one. Several options present themselves. We will set them out in turn, considering their respective strengths and weaknesses, before finally stating our conclusions.

The Options Considered:

(a) Prescribing a Specific Minimum Age for Competence

5.19

According to this option, the legislation would prescribe a specific minimum age competence. Below this age, children could not give sworn evidence; above this age children would be competent unless the court held otherwise.²⁶

An advantage of this approach would be the degree of certainty it would introduce, as well as bringing a greater sense of realism into the process since there is something unconvincing about a rule which cannot say clearly that a one-year-old child, for example, is not a competent witness.

5.20

There are, however, significant disadvantages to prescribing a specific minimum age for competence. Most obviously, there would be much debate as to what age should constitute the dividing line. That debate would reveal

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the futility of attempting to state when children acquire competence when what is at issue is whether this child has acquired competence. Whatever age is prescribed, there will always be some children who mature at a faster or slower pace than the norm. As regards children of slower pace there would not be a problem, since the court would be able to examine them for competence; but children developing at a faster pace than the norm would be excluded merely because other children tend to acquire competence at a later age. This would defeat the whole purpose of providing a legislative test for competence.

5.21

Another complicating factor, militating against the prescription of a specific minimum age, is that the empirical research relating to children indicates that competence is a contextual rather than an absolute quality:

(b) Letting Experts Decide

5.22

According to this option, the task of determining a particular child's competence would be discharged by an expert. We have seen that psychologists have for many years played an important role in a number of continental European countries in relation to the question, inter alia, of the child's competence. One Australian commentator has observed that leaving the determination of the issue of the competence of a child under the age of eight years to a pre-trial clinical evaluation by experts:

The objection to this approach is that it would enable experts to usurp the decision-making role of the court.³⁰ A via media would enable the court to have access to such expert assessment, but leave the ultimate decision as to competence to the court. This would already appear to be the position under present law; indeed, we have already noted that in an English decision³¹ in 1950, the Court of Criminal Appeal had no objection to the admissibility of evidence by a school attendance officer on the question of the child's capacity to give evidence.

(c) Letting the Court Continue to Decide

5.23

The third option would let the court continue to determine the competence of child witnesses. This option clearly suffers from none of the deficiencies of the other options.³² Two possible disadvantages, however, present themselves. First, the matter is one in relation to which the court has no particular expertise thus increasing the likelihood of subjective and widely varying determinations. Second, the court is involved in a tiresome exercise every time it is proposed that a child should give evidence. As to the first of these disadvantages, the reply must be that the whole of the judicial process involves the court – judge and jury – making findings on matters of considerable scientific complexity. As to the second, we do not consider that it amounts to a serious objection. Judicial enquiries are the hallmark of a sensitive and sophisticated system of justice.

Provisional Recommendations

5.24

We have come to the conclusion that the first of these three options should be rejected. It would do little good, and would be likely to do harm unless the minimum age were reduced so low that it would lose all efficacy. As to the second option, we would not support the proposal that the function of assessing a child's competence to give evidence should be handed over to experts. However, we believe that, in appropriate cases, experts could give useful evidence in this question for the guidance of the court. As we shall see, this appears to be the position already.³³We are of the view that the best approach is to continue to reserve to the court the task of making the ultimate decision as to competence, and we so recommend. This does not mean, however, that the present manner in which the court discharges the task should continue to apply; it is to that question we now turn.

C: HOW SHOULD COMPETENCE BE DETERMINED?

The Approach in Other Jurisdictions

5.25

At present, as we have seen, the court determines a child's competence to give sworn evidence by assessing his or her ability to understand the oath. This approach has come under attack in other jurisdictions. In Spencer's view, the distinction between a child's sworn and unsworn evidence “is now a distinction without difference. Yet on this technicality often turns the possibility of convicting a child molester.”³⁴

(a) CANADA

5.26

The Badgley Committee³⁵ concluded that “the legal tests for the reception of children's evidence either upon oath [sworn] or not upon oath [unsworn] had come very close together in practice, notwithstanding that the corroboration requirements are completely different depending on whether the child gives sworn or unsworn evidence. The Committee consider this an arbitrary distinction”. The Canadian Law Reform Commission was also

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critical of the use of the oath by courts as an indirect test of children's competence to give evidence.

(b) AUSTRALIA

5.27

A sustained assault on the distinction perceived between sworn and unsworn evidence has come from the Law Reform Commission of Australia, who describe it as “far from satisfactory”.³⁶ Their analysis merits extended quotation:

5.28

Several Australian States – Queensland, Western Australia, Tasmania, Victoria and New South Wales – permit a child to give unsworn evidence if he or she is of sufficient intelligence to justify the reception of the evidence and to understand the duty of speaking the truth.

5.29

In South Australia the Oaths (Children) Amendment Act 1985 provides that the unsworn testimony of a child may be received in court proceedings where the person authorised to administer the oath is satisfied that the child is of sufficient intelligence to justify the reception of evidence and that the child understands the duty of speaking the truth and the child promises “to tell the truth at all times”. A child is defined as a person under the age of 12 years.

Among three Bills introduced into the South Australian Parliament in December 1987 was the Evidence Act Amendment Bill. This Bill deals with the competence of children to give evidence before the courts. It lowers the age for a child to give evidence on oath to 7 years, as compared with 10 years under current law. It also allows for the evidence of young children under 12 years to be admitted as if it were under oath where a judge is satisfied the child can:

The effect of this new provision will be to allow more children to give evidence in court, and for such evidence to be treated on an equal basis with the evidence of adults.

The Bill also provides for a support person to be present while the child is giving evidence. Under the amendments, certain out-of-court statements of a child may also be admissible, provided the child would be available for cross-examination on the contents of the evidence.

5.30

In New South Wales the Oaths (Children) Amendment Act 1985 provides that the evidence of a child may be received in court proceedings where the court, Justice of the Peace or person authorised to administer an oath is satisfied that:

The child may be asked whether or not he will make the promise, expressed as “I promise to tell the truth at all times in this court.”³⁹ If he gives an affirmative response, this will suffice.⁴⁰

A child who, having made this declaration, wilfully –

knowing the evidence or statement to be false, is deemed to be guilty of perjury if the giving of the evidence or the making of the statement, had it been upon oath, would by law have been perjury.⁴¹

5.31

The Law Reform Commission of Australia is not happy with a requirement as to intelligence either. They consider that:

When they came to report, they recommended a competence test for witnesses of any age which provides that:

(c) U.S.A.

5.32

The general rule is that “[a] child of any age who possesses the requisite characteristics may testify. There is no minimum age below which children are automatically disqualified from service as witnesses”.⁴⁴ To be competent, a child must possess sufficient intelligence to understand the obligation to tell the truth,⁴⁵ have “sufficient power of recollection to enable [him or her] to remember a perceived event at trial”,⁴⁶ and be able to communicate in an intelligible manner.⁴⁷

The approach of the courts in the last century was well captured in the following passage from the United States Supreme Court decision in Wheeler v United States:⁴⁸

5.33

The trend in the present century has been towards the removal of testimonial disabilities.⁴⁹ Rule 601 of the Federal Rules of Evidence (which became effective on 1 July 1975) goes so far as to provide that “[e]very person is competent to be a witness”. This does not mean what it appears to say however: the court is free to exclude a patently incompetent child on the basis of lack of minimum credibility or lack of relevancy.⁵⁰ In United States v Lightly,⁵¹ it was accepted that the words of Rule 601 should be read subject

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to the gloss that a witness is not presumed competent if he cannot be shown to have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully”.

At State level, some jurisdictions follow the example of Rule 601, sometimes modified by express statutory language⁵² drafted on the lines broadly similar to Lightly. Others⁵³ require that a child understand the nature of an oath (or affirmation) as a condition of competence. A third group⁵⁴ of States prescribes a minimum age – usually between ten and fourteen – below which children are presumed incompetent but enabling them to testify where the trial judge determines, after questioning,⁵⁵ that they possess capacity. In States adopting this approach “the great majority”⁵⁶ of children over the age of five are found competent to testify.

5.34

A significant development has taken place in the past few years. The American Bar Association's National Legal Resource Center for Child Advocacy and Protection proposed that:

Legislatures in “a growing number”⁵⁸ of States have enacted statutes on those lines. An important caveat should however be noted. Professor Myers counsels that whether these statutes will completely eliminate the traditional judicial role:

The role of interpreters should also be noted. In 1979, the New Jersey Supreme Court, in State ex rel RR,⁶⁰ held that some young children may adopt such unusual speech patterns or engage in such idiosyncratic gestures as to warrant the use of an interpreter. Normally the interpreter should be an individual with no interest in the outcome of the case; but, said the court, it was recognized that situations might arise where it was necessary to appoint an “interested” interpreter, such as a person related to the witness or having an interest in the case. However, it noted that there was agreement in the decisions on this matter that such an “interested” person:

(d) SCOTLAND

5.35

The position as regards the competence of children “appears to be somewhat uncertain”.⁶² Up to recently it was assumed that very young children were to be regarded⁶³ as incompetent unless the judge formed the view that they had sufficient understanding to appreciate the duty to speak the truth. The Scottish Law Commission endorsed such an interpretation as recently as 1980. However, the Commission stated this year that they had:

The decision as to whether a child should be put on oath is one for the judge's discretion, depending on the child's maturity and intellectual capacity. It seems that twelve years affords a rough dividing line; the issue is one of little controversy, however, since in Scotland a child's evidence is entitled to be treated in “exactly the same way”⁶⁵ regardless of whether or not it is given on oath. In general, the oath is not taken from persons under 17.

The Requirement as to Corroboration

(a) The Present Law

5.36

Corroborative evidence is credible evidence which supports or confirms the evidence of the complainant against the accused and is independent of the complainant's evidence.⁶⁶

There can be no conviction without corroboration on the unsworn evidence of children of tender years. In the case of sworn evidence, the jury must be warned of the dangers of convicting on the uncorroborated evidence of:

“A child's sworn evidence may thus require corroboration for one or more reasons, either because it simply is the evidence of a child or additionally because he is the victim of a sexual assault or an accomplice.”⁶⁸

It will be recalled that in relation to rape and allied offences we have already recommended⁶⁹ that there should be no requirement of corroboration; nor

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should the trial judge be required to warn the jury of the danger of convicting where there is no corroboration.

(b) Criticism of the Present Law

5.37

A significant body of research is now available which shows that many of the assumptions pertaining to the special corroboration requirements for children's evidence are largely unfounded. This evidence has been reviewed in a number of recent Reports⁷⁰ and has resulted in a move away from mandatory corroboration requirements in many countries. The Law Reform Commission of Victoria has proposed the abolition of the corroboration requirements.⁷¹ Section 34 of the Criminal Justice Act, 1988 in England has abolished the corroboration requirement for child witnesses as have the New South Wales⁷² and Queensland⁷³ Governments. Southern Australia⁷⁴ has also abolished the corroboration requirement. The matter is still under review in Canada and Western Australia. All States in the U.S.A. have now abolished the corroboration requirement for child witnesses.

At present the judge is required to warn the jury of the danger of convicting the accused on the uncorroborated evidence of a child. This mandatory warning has been abolished in several jurisdictions.

Many statutes provide that the judge should retain the discretion to comment upon the reliability of the child's evidence where the circumstances make comment appropriate. Some proposals for reform have suggested that the judge should not be permitted to comment in this way. However, that would be contrary to the general rule which permits a judge to comment on the evidence in any case, not just in cases involving children and sexual offences. It is the responsibility of a judge to use this discretionary power to ensure that an accused gets a fair trial.

The substance of all the arguments against abolishing the mandatory warning to the jury is that children are so inherently unreliable and their witnessing abilities so frail that the procedures and rules that apply to adult witnesses are not sufficient and that further safeguards are required.

5.38

The arguments in favour of abolishing the requirement to warn are as follows:

The Badgley Committee agreed with what they called the “common-sense” approach to witness credibility espoused by Mr Justice Dixon of the Supreme Court of Canada [now Chief Justice of Canada]:

(c) Provisional Recommendations

5.39

Whatever test of competence may be adopted we find the present warning requirement unnecessary. Once any person, of whatever age, is found to be competent, he or she is competent and no special conditions should apply to his or her evidence.

Accordingly, we provisionally recommend the abolition of the corroboration and warning requirements, whatever option is adopted for assessing competence.

The Requirement that Evidence be Given on Oath

(a) Options

5.40

Three options present themselves:

(b) The Options Considered

OPTION 1

5.41

The oath, swearing, false witness and perjury (with both its moral and criminal sanctions), are all entities and concepts familiar to Irish people. A religious sanction is superimposed on the sanction afforded by the common law offence of perjury. The ability to understand the meaning of an oath is employed as the test of competence for a young witness before he or she is sworn. It is this function with which we are particularly concerned in this Report. If the attainment of this same level of competence could be ascertained by means not necessarily dependent on a belief in God or a knowledge of religious precepts, there is no logical reason why this means should not be universally adopted, particularly as a person who objects to being sworn on the grounds of absence of belief or who has a religious objection to taking an oath can give evidence, having solemnly affirmed under the Oaths Act, 1888. Nobody in the State is required to believe in any God and we see no reason why the evidence of a young, ignorant or unbelieving but competent witness should have any less weight or efficacy than the evidence of a young, believing, competent witness. In fact, the present dispensation might have difficulty in surviving constitutional scrutiny.

OPTION 2

5.42

It is perfectly possible in law to have twin, co-existing tests of competence, or reliability. In fact, that is the situation for adults at the moment under the Oaths Act. Under this option, one would be promoting the ability to affirm, using an appropriate formula, for the young as well as for adults. It would be preferable for all if one could simply opt to affirm rather than have to proclaim an absence of belief or an objection to taking the oath. At the same time, a person wishing to call on God to witness the truth of what he or she is saying would still be able to do so if the oath option were preferred.

The argument against this option is that, given the fact that religious practice and awareness of the significance of an oath are such a feature of Irish life, many jurors consciously or unconsciously would attach greater weight to sworn evidence than to affirmed evidence. This perception would not necessarily be alleviated by the judge's holding the adjudication on competence in the absence of the jury or by subsequent judicial warning against making a distinction between the two methods of assessing competence.

OPTION 3

5.43

Under this option the oath would be replaced by a form of affirmation for all made after an adjudication on competence on lines similar to those suggested by the Australian Law Reform Commission, i.e. an approach which ascertains the potential witness's cognitive ability. This option has the great attraction of absolute universality. Furthermore, it is not new law as any person, not being of tender years, can affirm, albeit after proclaiming objection to the oath. The objection to this option is the fact that the oath would not be available to those who wished to call on God to witness the truth of their evidence.

(c) Provisional Recommendations

5.44

It must be remembered that we are examining this question in the relatively limited context of child sexual abuse. While our provisional conclusion is in favour of option 3, it would clearly be anomalous and unjustifiable to confine the proposed alterations in the law to prosecutions for child abuse. At the same time, to propose such a change in the criminal law generally is probably outside the terms of the matters referred to us by the Attorney General, even more so if we were to extend the enquiry, as we logically should, to the desirability of retaining the oath in all other forms of litigation.

However, as it happens, the Commission's first programme of law reform expressly commits the Commission to examining the question of the desirability of retaining the oath for witnesses and for jurors. Accordingly, while, as we have said, our provisional preference is for option 3, we propose, having received submissions from interested bodies, to accompany our final Report with a separate Report which will contain our proposals as to the retention of the oath for witnesses and for jurors in all proceedings, criminal and civil.

FOOTNOTES TO CHAPTER 5

CHAPTER 6: EVIDENCE: (2) EXPERT WITNESSES IN CHILD ABUSE CASES

A. The General Law

6.01

As a general rule, a witness is not permitted to state an opinion unless he or she is an expert in the subject matter of his or her evidence.¹ In McFadden v Murdock,² Pigot CB adopted the language used in Starkie's text³ to the effect that:

The Chief Baron went on to say:

6.02

Conversely, matters of human nature and behaviour within the limits of normality are not susceptible to expert evidence, according to a number of English decisions. In R v Turner,⁵ the English Court of Appeal, Criminal Division, held that the trial judge in a murder prosecution had rightly refused to admit evidence of a psychiatrist, designed to help the jury to accept as evidence the defendant's account of what had happened and to seek to explain to them why the defendant had, as he claimed, been provoked. Lawton LJ delivering the judgment of the Court, said:

The Court distinguished the Privy Council decision in Lowery v The Queen⁷ where the evidence of a psychologist on the issue of credibility had been held admissible. The evidence was designed to throw light on the respective qualities of dominance and submission in the personalities of two co-defendants charged with murder. The case of one of the defendants, Lowery, was that the other defendant, King, had committed the murder, and furthermore that Lowery himself was not the sort of person who would have committed the murder. The Privy Council held that King was entitled to adduce the psychologist's evidence as being relevant and necessary to his case, which involved negating what Lowery had claimed.

Lord Morris, on behalf of the Judicial Committee, said:

In Turner, the Court of Appeal, Criminal Division, adjudged Lowery to have been decided on its special facts. The Court did:

6.03

In A & BC Chewing Gum,¹¹ the Queen's Bench Division, in a prosecution under the Obscene Publications legislation, had held that the evidence of psychiatrists was admissible at common law and under the legislation, to show what sort of effect certain cards distributed in chewing gum packets, would have on children of different ages, what it would lead them to do, and whether what they were led to do was a sign of corruption or depravity. Lord Parker, CJ said:

6.04

In Toohey v Metropolitan Police Commissioner¹³ the House of Lords held that medical evidence was admissible on the question whether an hysterical condition on the part of the alleged victim of assault was the result of an assault or, on the other hand, did the alleged victim make a false allegation of assault.

Lord Pearce said:

In the New Zealand Court of Appeal decision of The Queen v B¹⁵ in 1987, McMullin J interpreted Toohey as an authority for the proposition that:

6.05

An Australian commentator has summarised the position of expert evidence in relation to child sexual abuse as follows:

Whether the Irish Courts would follow this approach is not certain. It may be that they would prefer to leave open, as the New Zealand Court of Appeal did in The Queen v B,¹⁸ the possibility that, in future, experts in child psychology will be able to provide evidence that persons subjected to sexual abuse act in particular ways and that these actions amount to supporting evidence of sexual abuse. However, the “child sexual abuse syndrome” as yet lacks clear scientific empirical validation.

B. Expert Testimony in Child Abuse Cases

6.06

Expert testimony is increasingly used to assist the courts in cases involving sexually abused children, though more so in civil rather than criminal proceedings. In the U.S. the use of expert testimony from psychiatrists, psychologists and social workers relating both to the child victim and the accused is one of the most controversial and significant innovations in the courts there. The expert witness testimony can have different functions:

Advantages

6.07

At present a child's competence is assessed by a judge questioning the child. Expert testimony could sometimes assist the court in this respect.

6.08

Without expert testimony a child's reactions (for example delayed disclosure and recantation) can be misinterpreted by a jury. The expert witness by sharing information with the jury can give them an informed framework in which to judge the case.

Thus, in State v Myers,²² for example, the Minnesota Supreme Court had no hesitation in accepting an expert's testimony on the general characteristics apparent in sexually abused children. It stated:

The court went on to observe that:

6.09

Expert testimony as to typical reactions to child sexual abuse may satisfy the corroboration requirements of a child hearsay statute.²⁷ For example, expert testimony could be used to explain why and how a child's unusual behaviour was consistent with behaviour one might see in an abused child. This evidence, together with any physical evidence of the abuse, could be used as corroboration, justifying admission of the child's out-of-court statement under a statutory hearsay exception.

Not all courts confer a carte blanche on evidence of this type. In Bussey v Commonwealth,²⁸ for example, the Supreme Court of Kentucky held that the trial court should not have admitted psychiatric evidence of the “child sexual abuse accommodation syndrome” in a prosecution of a father, since the syndrome as described could have been caused by the prior sexual abuse of the child by her uncles, in respect of whom there was accusatory testimony (of unstated weight). The court also noted that the prosecution had made no attempt to establish the credibility of this syndrome as a concept generally accepted in the medical community.

6.10

Specific expert testimony called “statement analysis” is widely used by the German courts. Expert witnesses who have a special expertise analyse children's statements using a set of specific criteria to establish the consistency

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and credibility of the statements. The courts follow those expert opinions in more than 90% of cases of child sexual abuse. And where statements were judged as truthful by the expert, the perpetrator was convicted in 95% of cases. To date no convicted defendant was found to be innocent by the later discovery of conflicting evidence.²⁹

Disadvantages

6.11

It usurps the role of the judge and jury, whose function it is to assess the truthfulness of witnesses. In Turner³⁰ fears were expressed that if such evidence were admitted “trial by psychiatrists would be likely to take the place of trial by jury and magistrates”.³¹

6.12

In the adversarial system, expert witnesses can be called by the defence and by the prosecution.

6.13

Expert testimony on the child sexual abuse syndrome has met with a mixed reception in American courts. One of the difficulties arises from the fact that the child sexual abuse syndrome is very loosely defined. For example, the range of children's behaviourial and emotional reactions to sexual abuse is very wide. A certain combination of reactions may be “typical” of child sexual abuse victims, it may even strongly suggest that sexual abuse has occurred, but it cannot be reliably diagnostic of sexual abuse. A child may show many of the behavioural and emotional reactions typical of a sexually abused child, e.g. sleep disturbance, enuresis, lowered school performance, fears and phobias, but these may be caused by other factors in the child's life and do not point to child sexual abuse without other evidence. In general, expert evidence that certain behaviours (for example delayed disclosure, recantation) are not inconsistent with abuse is admissible in most American courts. However, “syndrome testimony”, i.e. expert opinion that a particular child has been sexually abused because his or her behaviour is

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consistent with the child sexual abuse syndrome has generally been rejected.

6.14

Expert opinion vouching for the complainant's credibility has also generally been rejected by American courts. But expert testimony enhancing the complainant's credibility (for example by explaining the complainant's unusual behaviour) is generally admissible.

6.15

There is a growing body of empirical and clinical research on child development in general and on sexually abused children in particular. Expert witnesses have a valuable role in assisting the courts by bringing such knowledge before them. Some of the problems, e.g. the multiple interviews of children by experts called by the defence and the prosecution, could be avoided if expert witnesses were called by the court rather than by the defence and the prosecution. This already happens in civil proceedings. The judge in criminal proceedings has the same power, though this is rarely exercised, to call a witness who has not been called by either of the parties. If both the prosecution and the defence agree to a court-appointed assessor this would require no change in current law. But it would require a significant change in the law if the parties were to be forbidden to call their own experts when an expert witness was appointed by the court. Moreover, in civil cases, the judge sometimes has the option of appointing an assessor who is not a witness but sits with him on the bench to help him assess the expert evidence. This may also be possible in a criminal court.

Under existing law, expert evidence as to the child's competence is admissible. As for the other types of expert evidence, a fine line has to be drawn between evidence that will assist the jury to make its decision and evidence that will usurp or unduly prejudice the jury. The Scottish Law Reform Commission concluded:

C Provisional Recommendation

6.16

We provisionally recommend that expert evidence be admissible as to competence and as to children's typical behavioural and emotional reactions to sexual abuse.

FOOTNOTES TO CHAPTER 6

CHAPTER 7: EVIDENCE: (3) MAKING IT EASIER FOR CHILDREN TO GIVE EVIDENCE

A. General

7.001

Concern has frequently been expressed regarding the trauma or secondary victimization that sexually abused children are said to suffer by their involvement in the criminal justice system. There are occasional reports in the media of children breaking down in court and being unable to give or continue their evidence. There are claims by some experts in mental health that children may sustain serious psychological harm as a consequence of participating in the legal process.¹

These considerations may profoundly influence the number of cases of reported child sexual abuse which eventually reach the courts. Families of sexually abused children may be reluctant to submit their children to further stress and trauma. Prosecutors may also be concerned that particular children would be too intimidated by the court process and as a consequence may not continue the investigation and prosecution of those cases.

Some experts take a different view, believing that court involvement is not necessarily traumatic and may even be therapeutic for some children.²

7.002

The problem is that much of the evidence for both positions remains at an anecdotal and descriptive level. There is very little empirical evidence on the short-term and in particular the long-term psychological effects on children of giving evidence in court. What studies exist are often flawed by methodological weaknesses. For example, one study showed that children who gave evidence in court were more psychologically disturbed than those children who did not. But the researchers admitted that the cases that went to court were probably more serious then those that did not and that the families of the court group were more disturbed.³

One carefully controlled study found that sexually abused children who testified in court were more psychologically disturbed than sexually abused children in similar circumstances who did not give evidence. That study is not yet completed so there is no data on how long-term the psychological disturbance is. Neither is it clear if a certain sub-group of children may benefit from testifying. The authors from that study concluded:

These considerations have led to a variety of changes in many jurisdictions in the practices and procedures that are designed to make it easier for children to give evidence. Some measures do not require legislation and raise no issues of principle. Other measures would require legislation or changes in rules of court. We will later examine various proposals aimed at making it easier for children to give evidence.⁵ Before we do, we will examine the Rule against Hearsay and the constitutional implications of some of these proposals, which together form the legal backdrop against which the proposals are made.

B. The Rule Against Hearsay

(i) The Present Law

(a) The general principles

7.003

Strictly speaking this section deals, however briefly, with the rules of evidence which exclude out-of-court statements, including hearsay. The above heading is convenient, familiar to lawyers and shorter. The Commission has published a Working Paper⁶ and a Report⁷ on the Rule against Hearsay. The Report was confined to civilcases (as were the recommendations in the Working Paper). The Commission, referring to the differing standards of proof in the criminal and civil regimes, were reluctant to make recommendations for criminal cases without first seeing how the abolition of the rule would operate in civil cases. Leaving aside the standard of proof and the danger inherent in admitting hearsay in a criminal trial, the considerations are much the same in civil and criminal proceedings. In fact the Commission has recommended a relaxation of the rule, albeit with

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stringent safeguards, where it relates to business records in its Report on Receiving Stolen Property.⁸

In its Report on Hearsay in Civil Cases the Commission says:

The effect of the Rule against Hearsay in the present context is that, “in the case of child sexual abuse where a child tells a parent or other third person that he or she has been sexually interfered with in some way, .... the parent or other person cannot tell the court what the child said in order to help prove that the assault occurred. When the child is later interviewed by a police officer ...., [the police officer] can[not] give evidence of what the child said in that interview”.¹⁰

(b) Exceptions at common law

7.004

There are, however, a number of exceptions to this rule. Evidence of what a person said may be adduced if part of the res gestae,¹¹ i.e. it becomes relevant and admissible because of its contemporaneity with the matters under investigation, e.g. remarks of a child who is being abused by her father overheard by her mother. In Ratten v R,¹² Lord Wilberforce, delivering the opinion of the Judicial Committee of the Privy Council, having reviewed all the authorities, stated:

It may be that a generous application of the Ratten test could lead to a more indulgent application of the res gestae test in relation to complaints by young victims in the aftermath of a sexual assault. Before the decision in Ratten, the authorities insisted that the words should be strictly contemporaneous or spoken immediately after the event. Thus in R v Bedingfield,¹⁴ where the deceased came out of her room with her throat cut and said “See what Bedingfield has done to me”, this evidence was not admitted as it was not contemporaneous. Whether our courts would be disposed to develop the concept of “excited utterances” as far as the courts in the United States¹⁵ is, however, far from certain.

7.005

Statements concerning the maker's contemporaneous physical sensations or emotion or state of mind may also be admitted.

Statements of this nature are admissible only as evidence of the existence of the declarant's state; they have no further evidential efficacy. Thus, if a child said to a doctor that he or she experienced pain at a certain location or was fearful, the doctor could give evidence that the child said this, but the doctor would not be permitted to include evidence of what the child said as to the cause of the pain or fear.

7.006

An important related rule of evidence should be noted here. This relates to complaints in sexual cases. Evidence of such a complaint is admissible in order to show the consistency of the conduct of the complainant with his or her evidence,¹⁶ and not merely to rebut the suggestion of consent. The exception applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when it is made at the first opportunity after the offence which reasonably offers itself.¹⁷

The particulars of the complaint thus admitted in evidence are admissible “merely to show consistency with the complainant's account, i.e. to buttress the credit of the complainant”¹⁸ and they are not evidence of the facts related in the complaint. Thus, the recent complaint rule is not an exception to the hearsay rule but rather an exception to the rule making prior consistent statements of a witness inadmissible.

It should be noted that evidence of this type does not amount to corroboration “because corroboration must come from a source independent of the witness to be corroborated”.¹⁹

(c) Some Statutory Exceptions Depositions under Sections 7 and 14 of the Criminal Procedure Act, 1967

7.007

Under Section 7 of the Criminal Procedure Act, 1967 either the prosecutor or the accused may call any witness on sworn deposition as part of the preliminary examination of a case in the District Court.

Section 14 provides in addition that, either on the application of the prosecution or the accused, if a justice is of the opinion that a prospective witness is unable to attend, or may be prevented from attending to give evidence at the trial, and that it is necessary, in the interests of justice, to take his evidence by way of sworn deposition, he may order accordingly.

Section 15 provides that a deposition, taken under section 14 or under section 7, may be read as evidence at the trial of the accused, if it is proved that the deponent (the person who made the deposition) is dead or otherwise unable to attend or prevented from attending, that the deposition was taken in the presence of the accused, and that an opportunity was given for cross-examination of the deponent. However, if a deposition was taken under section 7 on the prosecution's application, it cannot be read at the trial unless the accused consents (something he is unlikely to do). A deposition taken under section 14 may not be read unless the trial judge considers that not to do so would not be in the interests of justice.

Depositions under Section 28 and Section 29 of the Children Act 1908

7.008

These sections allow a justice to take a deposition of a child (aged 7–15) or young person (15–17) if their attendance at court would involve “serious danger to their life or health”. This deposition would be admitted at the trial of the accused if the court were satisfied by the certificate of a doctor, provided that the accused or his counsel or solicitor had, or might have had, if he chose to be present, an opportunity of cross-examining the victim making the deposition.

(ii) The Law in Other Jurisdictions

(a) U.S.A.

7.009

Rule 801(c) of the Federal Rules of Evidence defines hearsay²⁰ as:

A “statement” in this context means “an oral or written assertion or .... non-verbal conduct of a person, if it is intended by him as an assertion”.²¹ Thus, for example, pointing may amount to an assertion if it is so intended by the person pointing.

A non-assertive utterance is not hearsay, and thus generally is admissible if relevant. This type of utterance may be verbal, as, for example, an exclamation of joy, annoyance or fear. The issue is of some importance in relation to child sexual abuse. In In re Penelope B.,²³ in 1985, the Washington Supreme Court stated:

In this case the behaviour of the child, aged five, with anatomically correct dolls was held to be non-assertive conduct. This embraced the words that she had used at the time.²⁴

7.010

There are several cases in which out-of-court assertions are not excluded by the hearsay rule.²⁵ Thus, for example, Rule 801(d)(1)(A) of the Federal Rules of Evidence provides that an out-of-court statement is not hearsay if:

Conversely, Rule 801(d)(1)(B) provides that prior consistent statements may be offered to rebut an express or implied charge against a witness of recent fabrication or improper influence or motive. This provision is of growing importance in child sexual abuse proceedings.²⁶

7.011

There are numerous exceptions to the Rule against Hearsay. The Federal Rules of Evidence list twenty-nine. In practice, however, only about a dozen of these arise with any frequency.²⁷ As regards child witnesses this list can be reduced to seven:²⁸