by Robbie Slattery July-19-2019 in Healthcare Law, Litigation & Dispute Resolution, Commercial & Business, Dispute Resolution & Litigation
The Children First Act 2015 was a ground breaking piece of legislation which, for the first time, put the Children First guidance document on a statutory footing. Children First sets out a number of guidelines and procedures in the sphere of child protection, with particular emphasis on the correct processes for dealing with child protection concerns.
Recently, Tusla has begun for the first time to maintain a publicly available register of organisations and businesses which are not in compliance with the obligation under the 2015 Act to maintain a Child Safeguarding Statement. Therefore, businesses and other organisations should be aware of that obligation and arrange for the preparation of a Child Safeguarding Statement if required.
Obligation to implement
The obligation to implement a Child Safeguarding Statement arises where an organisation provides a 'relevant service'. In this context, a 'relevant service' means any of the activities specified in Schedule 1 of the 2015 Act. Some of those services are ones where the requirement to have a Child Safeguarding Statement may be relatively intuitive, such as an early years’ service, a school centre of education, a hospital, hospice or healthcare centre or any of the types of premises which provide statutory services to children.
Other considerations
However, some of the types of services which are also captured by the definition may be less obvious. For instance, a Child Safeguarding Statement is required for any organisation which provides educational, research, training, cultural, recreational, leisure, social or physical activities to children or care or supervision to children. Clearly, this part of the definition has the potential to be broad and will encompass services provided by a wide range of businesses, whether as their primary service or as incidental services.
Further, any work which includes the provision of advice or guidance services (including by means of electronic or interactive communications) which involves contact with children or transport services provided to children may also be captured.
Child Safeguarding Statement
Where an organisation provides relevant services, a statutory obligation to undertake a risk assessment and prepare a Child Safeguarding Statement will arise. The requirements of the Child Safeguarding Statement are specific. The Child Safeguarding Statement must specify “the service being provided and the principles and procedures to be observed to ensure as far as practicable, that a child, while availing of the service, is safe from harm”. In particular, the Child Safeguarding Statement must specify procedures for items including:-
- Managing any risk which has been identified;
- For the recruitment and selection and, if applicable, investigation of members of staff who work with children;
- The provision of information to staff and, if necessary, instruction and training;
- Reporting to Tusla if and when required;
- Appointing a ‘relevant person’ for the purposes of the 2015 Act.
All services must also nominate a ‘relevant person’ to manage the Child Safeguarding Statement and be the person who communicates with Tusla in relation to the Child Safeguarding Statement.
Clearly, therefore, any business which believes it may be captured by the definition of a 'relevant services' should ensure that it has performed this statutory risk assessment and Child Safeguarding Statement. The contents of those documents must be carefully prepared in order to ensure compliance with the statutory requirements set out above.
Non-Compliance
The importance of complying with these statutory obligations is underlined by the specific provisions in the 2015 Act which deal with non-compliance. Where a business fails to provide a copy of their Child Safeguarding Statement to Tusla or members of the public or a parent of a child who avails of the relevant services, Tusla may serve a written notice requiring that a copy of the Child Safeguarding Statement is provided. If this is not done within the prescribed time period specified by Tusla in any individual case, Tusla may serve a non-compliance notice on the business concerned. Whilst there is provision for the recipient of a non-compliance notice to appeal that to the District Court it is difficult to envisage that such an appeal would be successful in circumstances where no Child Safeguarding Statement had previously been prepared by that organisation. Reputational harm may arise from this – Tusla maintains a register of the recipients of non-compliance notices containing the names of organisations which do not have the same in place.
Protection for Child Protection Reports
It is important to bear in mind that the 2015 Act provides certain insulation from liability when Mandated Persons report concerns of risk of harm, or harm to a child directly to Tusla. Further, there are also more general protections from liability for persons who make reports of child protection concerns to authorities once the report is made in good faith - see the Protections For Persons Reporting Child Abuse Act 1998. These provisions are designed to ensure that
Action Points
Clearly, businesses should consider whether any of the services which they provide to in the course of their operations may be considered to be a 'relevant services' within the meaning of the 2015 Act. If that is the case, it is important that the required statutory risk assessment and Child Safeguarding Statement are prepared as soon as possible.
For further information on the statutory obligation to undertake a risk assessment and preparing a Child Safeguarding Statement, please contact Robbie Slattery rslatter@hayes-solicitors.ie
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About the Author
Robbie Slattery
Robbie is a partner in the Commercial & Business team at Hayes solicitors. Robbie advises on items such as shareholder agreements, share purchase agreements, joint ventures, business sales and business purchases. Robbie also advises on commercial litigation with a particular focus on high value, multi-party litigation, for corporate clients, State entities, charities and private individuals, both on the Plaintiff and Defence side.