Committee Reports::Report - Report of the Select Committee on Social Affairs on Non-Fatal Offences against the Person in respect of Children::01 May, 1997::Report

1.1In accordance with paragraph (17) of its Orders of Reference (see Appendix 1 to this Report), the Select Committee on Social Affairs may discuss and draft proposals for legislative changes and new legislation for recommendation to Ministers.

1.2This Report accordingly recommends legislative changes to the Minister for Justice and is addressed to Mr Austin Currie T.D., Minister of State at the Department of Justice, at the Department of Education and at the Department of Health with special responsibility for children.

2. Background

2.1In May, 1996, the Select Committee on Social Affairs undertook an examination of the subject of non-fatal offences against the person in respect of children, that is to say, actions of a physical or non-physical nature which are harmful to the welfare of children.

2.2The Select Committee placed particular emphasis on the review of existing law, the repeal of outdated law and the introduction of new offences in respect of non-physical actions such as intimidation, bullying, corporal punishment, slapping and other forms of chastisement.

2.3The Select Committee sought proposals from suitably qualified persons to assist and advise it in its work and engaged the services of Ms. Mary Ellen Ring B.L. and Ms. Emily Egan B.L. for this purpose. The Select Committee is grateful to Ms. Ring and Ms. Egan for their assistance in the production of this Report.

2.4In carrying out its work and in the preparation of this report, the Select Committee has had regard, inter alia, to-

•the Constitutional obligations on the State in relation to the protection of children

•the United Nations Convention on the Rights of the Child ratified by the State in 1992

•the Report of the Law Reform Commission on Non-Fatal Offences against the Person

3. Summary of Recommendations

3.0Arising from its consideration of the matter, the Select Committee has formulated four principal recommendations and has prepared a draft Bill giving effect to these. Each of the recommendations is outlined briefly in this chapter and the draft Bill is set out at Appendix 3 to this Report. Chapters 4 to 7 of this Report contain the detailed recommendations of the Select Committee together with commentary thereon.

4.1Section 27 of the Offences against the Person Act, 1861, as amended, relates to the abandonment of children under the age of two years:

“27. Whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for the term of five years.”.

4.2This provision has been superseded by the offence of cruelty under section 12 of the Children Act, 1908 (as amended by section 4 of the Children Act, 1957) and is also comprehended by the revised offence of cruelty proposed later in this Report.

4.3As recommended by the Law Reform Commission, the provision should be repealed as provided for in section 4 of the draft Bill contained in Appendix 3 to this Report.

5.1Section 4(1)(d) of the Summary Jurisdiction over Children (Ireland) Act, 1884 relates to the sentencing of children to physical punishment:

“(d) Where the child is a male the court may, instead of any other punishment, adjudge the child to be, as soon as practicable, privately whipped with not more than six strokes of a birch rod by a constable, in the presence of an inspector or other officer of police of higher rank than a constable, and also in the presence, if he desires to be present, of the parent or guardian of the child.”.

5.3In addition to the repeal of this particular statutory provision for whipping, the Select Committee proposes that all other such provisions for whipping be discontinued also as provided for in sections 4 and 7 of the draft Bill contained in Appendix 3 to this Report.

6.1Section 12 of the Children Act, 1908 relates to offences of cruelty to children and is contained, for ease of reference, in Appendix 4 to this Report.

6.2.1The commission of offences of cruelty should not be confined to persons over the age of 17 years as this threshold excludes cruelty by peers, siblings and babysitters.

6.2.2The circumstances in which cruelty offences may be deemed to be committed should, in addition to the more formal circumstances of custody, charge or care, be extended to include informal situations where a child comes within the “control” of persons such as bus drivers, school wardens, etc. without being specifically entrusted with the care of the child.

6.2.3The range of cruelty offences should be extended to include sexual assault in keeping with the provisions of the Child Care Act, 1991.

6.2.4The effects of cruelty, in addition to physical and mental injury, should also include the effects on the emotional and mental health and general wellbeing of the child. Such effects may be extremely difficult to prove but, in the case of a child who suffers emotional or mental abuse, it should be clearly stated in the statute that such cruelty is covered by the criminal code.

6.2.5Maximum penalties require to be updated : £1,000 and/or one year imprisonment (on summary conviction) and £10,000 and/or ten years imprisonment (on conviction on indictment).

6.2.6Ill-treatment should be expressed to include bullying, frightening or threatening behaviour. The proposed inclusion of such specific instances of bullying in statute law is necessary to clearly establish the offence in the case of serious bullying by older children or peers, and, because it will also be necessary to show that the behaviour caused, or was likely to cause, unnecessary suffering or injury to the child, less serious or minor instances of such behaviour will therefore be excluded.

6.2.7Pending the abolition of the distinction between felony and misdemeanour, cruelty should be classified as a felony so that the Garda powers of arrest in relation to felonies may thus apply.

6.3Section 12 of the Children Act, 1908 should be repealed in favour of these recommendations as provided for in sections 4 and 5 of the draft Bill contained in Appendix 3 to this Report.

7.1In addition to the common law defence of “reasonable chastisement”, section 37 of the Children Act, 1908 relates to the right of parents, teachers etc. to administer punishment:

“37. Nothing in this part of this Act shall be construed to take away or affect the right of any parent, teacher, or other person having lawful control or charge of a child or young person to administer punishment to such child or young person.”.

7.2A paragraph to be written outlining the rationale of the Select Committee in coming to its decision (see below) in this matter.

7.3The Select Committee recommends the repeal of this measure and also the abolition of the common law defence of reasonable chastisement as provided for in sections 4 and 6 (Option B) of the draft Bill contained in Appendix 3 to this Report and that the Government adopt the recommendation of the Law Reform Commission on the implementation of a major program for positive parenting.

8. Conclusion

8.1During the period in which the Select Committee has been examining the subject of non-fatal offences against the person in respect of children, Bills containing proposals to give statutory effect to a number of recommendations contained in this Report have been published by the Government, namely, the Children Bill, 1996 and the Non-Fatal Offences against the Person Bill, 1997.

8.2The Select Committee welcomes these proposals as a commitment to the greater protection by the State of the welfare and safety of children and urges that full priority be afforded to the enactment of all of the measures recommended in this report.

8.3The legislative changes contained in this report are formally recommended by the Select Committee to the Minister for Justice and are addressed also to Mr Austin Currie T.D., Minister of State at the Department of Justice, at the Department of Education and at the Department of Health with special responsibility for children.

DÁIL ÉIREANN

TUARASCÁIL ón Roghchoiste um Ghnóthaí Sóisialta ar Chionta Neamh-Mharfacha in aghaidh an Duine maidir le Leanaí

REPORT of the Select Committee on Social Affairs on Non-Fatal Offences against the Person in respect of Children