Children First Act 2015

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Children First Act 2015.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

2.. Definitions

2. In this Act—

“Agency” means the Child and Family Agency;

“authorised person” has the meaning assigned to it by section 15(1);

“child” has the same meaning it has in section 2 of the Child Care Act 1991;

“child safeguarding statement” has the meaning assigned to it by section 11(1);

“enactment” means a statute or an instrument made under a power conferred by statute;

“harm” means, in relation to a child—

(a) assault, ill-treatment or neglect of the child in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare, or

(b) sexual abuse of the child,

whether caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances, or otherwise;

“Implementation Group” has the meaning assigned to it by section 20;

“ill-treatment” means, in relation to a child, to abandon or cruelly treat the child, or to cause or procure or allow the child to be abandoned or cruelly treated;

“mandated person” means a person who is a person specified in Schedule 2;

“mandated report form” has the meaning assigned to it by section 14(6);

“Minister” means the Minister for Children and Youth Affairs;

“neglect” means, in relation to a child, to deprive the child of adequate food, warmth, clothing, hygiene, supervision, safety or medical care;

“prescribed” means prescribed by regulations made by the Minister under section 3;

“relevant service” means any work or activity specified in Schedule 1;

“sectoral implementation plan” has the meaning assigned to it by section 27(1);

“sexual abuse” means, in relation to a child—

(a) an offence against the child, specified in Schedule 3,

(b) F1[…]

(c) F1[…]

“welfare” includes, in relation to a child, the moral, intellectual, physical, emotional and social welfare of the child.

3.. Regulations

3. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4.. Service of notices

4. (1) A notice that is required to be served on a person under this Act shall be addressed to the person by name and may be so served in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a pre-paid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(2) For the purposes of this section, a company within the meaning of the Companies Acts shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons, shall be deemed to be ordinarily resident at its principal office or place of business.

5.. Expenses

5. The expenses incurred by the Minister or any other Minister of the Government in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

6.. Guidelines

6. (1) The Minister may issue guidelines for the purpose of providing practical guidance to persons in respect of the protection and welfare of children.

(2) The Minister shall publish guidelines issued under subsection (1) in such manner (including on the internet) as he or she considers appropriate.

(3) Any guidelines that have been issued by the Minister before the commencement of this subsection for the purpose of providing practical guidance in respect of the protection and welfare of children, and that are in force immediately before that commencement, shall, on such commencement, be deemed to be guidelines issued under subsection (1).

7.. Best interests of child

7. The Agency shall, in performing a function under this Act, regard the best interests of the child as the paramount consideration.

PART 2 Child Safeguarding Statements

8.. Definitions for purposes of Part 2

8. In this Part—

“advance notice” shall be construed in accordance with section 12(2);

“contract of employment” means—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“non-compliance notice” means a notice served by the Agency under section 12(6);

“personal relationship” has the same meaning as it has in section 3 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012;

“provider” means, in relation to a relevant service, a person—

(a) who provides a relevant service, and

(b) who, in respect of the provision of such relevant service—

(i) employs (whether under contract of employment or otherwise) one or more than one other person to undertake any work or activity that constitutes a relevant service,

(ii) enters into a contract for services with one or more than one other person for the provision by the person of a relevant service, or

(iii) permits one or more than one other person (whether or not for commercial or other consideration and whether or not as part of a course of education or training, including an internship scheme) to undertake any work or activity, on behalf of the person, that constitutes a relevant service;

“register of non-compliance” shall be construed in accordance with section 13(1);

“relevant person” means a person who is appointed by a provider of a relevant service to be the first point of contact in respect of the provider’s child safeguarding statement.

9.. Application of Part

9. A person who would but for this section be regarded as a provider of a relevant service shall not be a provider for the purposes of this Part if the relevant service being provided by the person concerned is—

(a) undertaken in the course of a family relationship, where the work or activity is undertaken solely for the benefit of a child or other family member of the person,

(b) undertaken in the course of a personal relationship for no commercial consideration, or

(c) undertaken on an occasional basis only for no consideration at a school, sports or community event or activity.

10.. Child safeguarding

10. A provider of a relevant service shall ensure, as far as practicable, that each child availing of the service from the provider is safe from harm while availing of that service.

11.. Risk assessment and child safeguarding statements, etc.

11. (1) Where a person proposes to operate as a provider of a relevant service, he or she shall, within 3 months from the date on which he or she commences as such a provider—

(a) undertake an assessment of any potential for harm to a child while availing of the service (in this section referred to as a “risk”),

(b) prepare, in accordance with subsection (3), a written statement (in this Act referred to as a “child safeguarding statement”) specifying 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, and

(c) appoint a relevant person for the purposes of this Part.

(2) A person who, immediately before the commencement of this section, was operating as a provider of a relevant service shall, not later than 3 months from the date of such commencement—

(a) undertake an assessment of any risk,

(b) prepare, in accordance with subsection (3), a child safeguarding statement, and

(c) appoint a relevant person for the purposes of this Part.

(3) A child safeguarding statement shall include a written assessment of the risk and, in that regard, specify the procedures that are in place—

(a) to manage any risk identified,

(b) in respect of any member of staff who is the subject of any investigation (howsoever described) in respect of any act, omission or circumstance in respect of a child availing of the relevant service,

(c) for the selection or recruitment of any person as a member of staff of the provider with regard to that person’s suitability to work with children,

(d) for the provision of information and, where necessary, instruction and training, to members of staff of the provider in relation to the identification of the occurrence of harm,

(e) for reporting to the Agency by the provider or a member of staff of the provider (whether a mandated person or otherwise) in accordance with this Act or the guidelines issued by the Minister under section 6,

(f) for maintaining a list of the persons (if any) in the relevant service who are mandated persons, and

(g) for appointing a relevant person for the purposes of this Part.

(4) A provider of a relevant service shall ensure that the child safeguarding statement being prepared by the provider has due regard to, and is in accordance with, any guidelines issued by—

(a) the Minister under section 6, and

(b) the Agency concerning child safeguarding statements.

(5) A provider of a relevant service shall furnish a copy of the provider’s child safeguarding statement—

(a) to members of staff of the provider, and

(b) on request—

(i) to a parent or guardian, as the case may be, of a child availing of the relevant services,

(ii) to the Agency, or

(iii) to members of the public.

(6) As soon as may be after the preparation of a child safeguarding statement or any review of it, the provider shall display the statement in a prominent place where the relevant service concerned relates or is provided, or both, as may be appropriate.

(7) Subject to subsection (8), a provider of a relevant service shall, at intervals of not more than 24 months, undertake a review of the provider’s child safeguarding statement and the first such review shall be undertaken not more than 24 months from the date on which the first child safeguarding statement was prepared under subsection (1) or (2), as the case may be, and displayed under subsection (6), and any subsequent review shall be undertaken not more than 24 months from the date when the last review was undertaken.

(8) A provider of a relevant service shall review a child safeguarding statement prepared under this section as soon as practicable after there has been a material change in any matter to which the statement refers.

(9) Any of the following matters may be prescribed:

(a) the form of a child safeguarding statement;

(b) the matters to be included in a child safeguarding statement;

(c) the procedures to be followed by a provider of a relevant service in respect of a review, by the provider, of a child safeguarding statement.

(10) In this section “member of staff” means, in relation to a provider, a person referred to in sub paragraph (i), (ii) or (iii) of paragraph (b) of the definition of “provider” as set out in section 8.

12.. Non-compliance with request to furnish child safeguarding statement

12. (1) Where, pursuant to a request made by the Agency under section 11(5)(b)(ii), a provider of a relevant service fails to furnish the Agency with a copy of the provider’s child safeguarding statement, the Agency may, by notice in writing served on the provider—

(a) inform the provider of such failure,

(b) require the provider, within such period as may be specified in the notice, to furnish the Agency with a copy of the provider’s child safeguarding statement, and

(c) inform the provider that failure to furnish the Agency with the child safeguarding statement within the time specified in the notice may result in the provider being served with a non-compliance notice.

(2) Where a provider of a relevant service fails to comply with a requirement made by the Agency under subsection (1)(b), the Agency shall, by notice in writing served on the provider (in this section referred to as an “advance notice”) inform the provider that it is proposing to serve a non-compliance notice on the provider.

(3) The advance notice shall—

(a) inform the provider of the failure to furnish the child safeguarding statement concerned to which the notice relates,

(b) specify the period within which the child safeguarding statement shall be furnished by the provider,

(c) inform the provider that failure to furnish the child safeguarding statement within the period specified may, subject to subsection (5), result in the provider being served with a non-compliance notice, and

(d) inform the provider that he or she may make representations to the Agency in accordance with subsection (4).

(4) A provider who is served with an advance notice may, within 14 days of the receipt of the notice, make representations in writing to the Agency in respect of the proposed non-compliance notice.

(5) The Agency shall have regard to any representations made to it under subsection (4) in assessing whether to proceed with the service of the non-compliance notice.

(6) The Agency shall, subject to subsection (5), serve a non-compliance notice on a provider of a relevant service who fails to furnish the Agency with a child safeguarding statement within the period specified in the advance notice and the notice shall inform the provider concerned of the matters specified in subsections (7) and (8).

(7) A non-compliance notice shall come into effect 21 days from the date of service of the notice unless an appeal is brought by the provider under subsection (8) .

(8) A provider who is served with a non-compliance notice may, within 21 days of the date of service of the notice, appeal the non-compliance notice to the District Court.

(9) The jurisdiction conferred on the District Court under this section shall be exercised by a judge of that court for the time being assigned to the District Court district in which the person on whom the non-compliance notice is served ordinarily resides or carries on any profession, business or occupation.

13.. Register of non-compliance

13. (1) The Agency shall establish and maintain a register of non-compliance notices (in this Act referred to as the “register of non-compliance”).

(2) As soon as may be after a non-compliance notice comes into effect pursuant to section 12, the Agency shall enter the particulars of the non-compliance notice on the register of non-compliance.

(3) Subject to subsection (4), an entry made in respect of a non-compliance notice shall be removed from the register of non-compliance upon receipt by the Agency of the child safeguarding statement to which the entry relates or upon being satisfied that a child safeguarding statement is no longer required, as may be appropriate, whichever is the earlier.

(4) A person who is the subject of a non-compliance notice may at any time apply to the Agency to have the entry concerned removed from the register of non-compliance and the Agency may, if it considers it appropriate to do so, remove the entry.

(5) The register of non-compliance shall be made available for inspection by members of the public at all reasonable times at the principal office of the Agency.

PART 3 Reporting

14.. Mandated persons

14. (1) Subject to subsections (3), (4), (5), (6) and (7), where a mandated person knows, believes or has reasonable grounds to suspect, on the basis of information that he or she has received, acquired or becomes aware of in the course of his or her employment or profession as such a mandated person, that a child—

(a) has been harmed,

(b) is being harmed, or

(c) is at risk of being harmed,

he or she shall, as soon as practicable, report that knowledge, belief or suspicion, as the case may be, to the Agency.

(2) Where a child believes that he or she—

(a) has been harmed,

(b) is being harmed, or

(c) is at risk of being harmed,

and discloses that belief to a mandated person in the course of the mandated person’s employment or profession as such a person, the mandated person shall, subject to subsections (5), (6) and (7), as soon as practicable, report that disclosure to the Agency.

(3) A mandated person shall not be required to make a report to the Agency under subsection (1) where—

(a) he or she knows or believes that—

(i) a child who is aged 15 years or more but less than 17 years is engaged in sexual activity, and

(ii) the other party to the sexual activity concerned is not more than 2 years older than the child concerned,

(b) he or she knows or believes that—

(i) there is no material difference in capacity or maturity between the parties engaged in the sexual activity concerned, and

(ii) the relationship between the parties engaged in the sexual activity concerned is not intimidatory or exploitative of either party,

(c) he or she is satisfied that subsection (2) does not apply, and

(d) the child concerned has made known to the mandated person his or her view that the activity, or information relating to it, should not be disclosed to the Agency and the mandated person relied upon that view.