A significant report by the National Women’s Council (NWC), highlighting the urgent need for reforms across the justice system for survivors reporting domestic and sexual abuse was published on Wednesday 3 May 2023.
The report calls for a “comprehensive review and reform” of the in-camera rule in family courts, as well as mandatory domestic violence training for relevant professionals, including social workers, the judiciary and court-appointed experts.
Tusla’s handling of child sex abuse
Since June 27th 2022 Tusla has a new procedure called the Child Abuse Substantiation Procedure (CASP). It is for use by social workers who carry out what is called a “substantiation assessment”, to conclude if child abuse has happened or not.
What’s actually happening is that the perpetrators are being given information ahead of Garda investigations that enables them to be well prepared for Garda interviews about the allegations.
“Yet the very fact of this early and seemingly unilateral engagement by the Child and Family Agency with the person the subject of the abuse allegation, without Garda involvement, raises the very real spectre of such persons learning all of the details of the allegations against them and thus attending any Garda interview which may take place in due course armed in advance with detailed information,” the report says.
The majority of mothers contacting Ireland’s leading advocacy group for mothers of children in state care, the Alliance of Birthmothers Campaigning for Justice say that Tusla used domestic violence as an excuse to take their children into care.
The report points out that Tusla social workers often don’t understand the trauma associated with domestic violence.
“We heard of people feeling belittled, stupid and guilty for staying for so long in a home in which domestic and/or sexual violence was taking place, and so being [held] responsible for letting that situation persist,” the report says.
“Victims understood that the Child and Family Agency’s primary focus must clearly be upon the needs of a child or children, yet they nonetheless anticipated a supportive response as victims themselves. Instead, we were told on numerous occasions that they found themselves held responsible for a failure to protect a child or children of the relationship and ultimately felt that they were themselves the wrongdoer, being left fearful that an application would be made to take that child or children from them and placed into the care of the Child and Family Agency. Such an experience runs entirely contrary to long-standing international research which makes it clear that a key principle in child protection is the protection of the adult victim in domestic violence situations. This research, unfortunately, has also tended to support our experience that victims are undermined and blamed for a failure to offer protection to their children,” the report explains.
Rather than removing a child from a protective parent, Tusla has the power to apply for a barring order against the perpetrator of violence and allow the child to remain safely in their home. Tusla is not doing this: “But if the aim is to ensure that the child is protected from violence by not residing in the same home as the alleged perpetrator, then that end may be achieved by the use by the Child and Family Agency of its Section 11 powers to apply for a Barring Order which, if granted, would enable a child to live at home with the protective parent.”
The report recommends “that the Child and Family Agency review and adapt its practices in relation to the utilisation of Section 11 of the Domestic Violence Act, 2018 which enables it to bring applications itself for Barring Orders and for Emergency Barring Orders under the Act.”
In camera rule
Disclosures of abuse in the family law court cannot be passed on to the Gardaí without the permission of the court.
“Once proceedings have commenced, however, it would appear that the Child and Family Agency cannot, because of the in camera rule, disclose any documentation to an Garda Siochána without the consent of the court,” the report says.
The issue of unqualified people writing expert reports for the family law courts with recommendations that are often accepted by judges has been the subject of a recent RTÉ Primetime Investigates documentary.
This issue has also been raised in the Dáil by Deputy Bernard Durkan.
The report recommends “that all persons assigned to undertake expert reports in both private family and public child care proceedings have completed accredited and ongoing training in the area which they purport to have an expertise. In view of the considerable importance attributed in many courts to the views of such experts, it is also imperative that the basis for their expertise be made known to the court and to all parties to the civil proceedings in which they are engaged and, thus, that training, qualifications and affiliations to bodies and organisations be set out in their reports for court.“
NWC Director Orla O’Connor said: “It’s really positive that an increasing number of women are reporting domestic and sexual violence incidents to authorities, but unfortunately these legal systems don’t recognise or engage with each other.
This places a significant burden on victims to connect and inform the three processes. Victims can be in different courts process simultaneously, for example giving evidence against the perpetrator in the criminal process and at the same time negotiating in civil courts on child access. Currently the responsibility is on the victim to bring relevant information between the systems and there is no acknowledgement of the trauma this is causing for victims. It is vital that the legal process does not further traumatise people who have experienced domestic and sexual violence. If we are serious about achieving a victim centered approach then a comprehensive and wholistic approach is needed across the three systems and involving the courts, legal professionals, guards and Tusla.”
One of the report authors Ellen O’Malley-Dunlop said:
“The report is a call to action to address the unique needs of victims of domestic and sexual violence within the court system. It is vital that any changes stem from a victim-centered approach, which is at the forefront of our recommendations. Having a wraparound system of both court and non-court support for victims throughout the entirety of the legal processes is vital in developing a system which doesn’t cause additional stress and difficulties to victims of domestic and sexual abuse.”
The report is available on this link