Mandatory Civil Reporting (RoI)

A. Protections for Persons Reporting Child Abuse Act, 1998

Section 3(1) of the Act provides that a person shall not be liable in damages in respect of the communication, whether in writing or otherwise, to a member of the Garda Síochána or to a designated member of a Health Board of his or her opinion that a child has been sexually abused, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.

The Act would clearly protect the communication by an intermediary of what he learned from a victim to a member of the Garda Síochána or to a designated member of Tusla. Other than those mentioned in Section 3, the Act does not protect communications made to any other persons, or made in Northern Ireland.

Should a respondent become aware that an allegation has been transmitted other than to a member of the Garda Síochána or to a designated member of a Health Board, he or she may consider that their good name has been injured and have grounds for taking an action for defamation against any person making such a communication.

Qualified privilege:

The common law confers a protection known as “qualified privilege” on communications made by persons who have a right or a duty to make them, or who have an interest in protecting another person. 

It would be necessary to know the circumstances of the allegation before acting on the basis of any qualified privilege  and in any case to act in accordance with natural justice. 

DoES, Child Protection Guidelines and Procedures for Post-Primary Schools, 2004, p. 7 — Section 1.4: 

“Qualified privilege arises where the person making the communication has a duty to do so, or a right, or interest to protect the child and where the communication is made to a person with a similar duty, right or interest. The person making the report, acting in loco parentis, would be expected to act in the child’s best interests and in making the report would be regarded as acting in such a manner. 

Privilege can be displaced only where it can be established that the person making the report acted maliciously. Furthermore, those reporting a child’s disclosure or concerns about a child’s behaviour or welfare are not regarded as making an allegation as a matter of charge, but simply carrying out their duty in good faith. They are not accusing or bringing a charge.”

B. Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012

The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 creates an offence of withholding information regarding certain arrestable offences against children and vulnerable persons. The Act applies to all, but it is of particular relevance to those working with children and vulnerable persons.

Section 2 of the Act requires a person— 

• who knows or believes that a Schedule 1 offence has been committed, and

• who has information which he or she knows or believes might be of material assistance in the case 

• to report that knowledge or belief to a member of the Garda Siochána. 

A “Schedule 1 offence” means an offence that is an arrestable offence and is specified in Schedule 1 of the Act. The specified offences against children and vulnerable adults are generally of a more serious nature. They include offences such as murder, assault, false imprisonment, rape, sexual assault and incest. Acts of ‘gross indecency’, for example, are not included.  The role of the accused vis-à-vis the victim may be relevant, e.g. a person in authority, such as a teacher, would be liable for a greater sentence in respect of an offence on a pupil.  

An offence under the Act is committed when a person who knows or believes that one or more of these specified offences has been committed by another person against a child or vulnerable adult, and the person has information which they know or believe might be of material assistance in securing apprehension, prosecution or conviction of that other person for that offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

The offence applies to a person acquiring information after the passing of the Act on 18th July 2012 and it does not apply to the victim. The offence exists even if the information acquired is about an offence which took place prior to the Act being enacted, and even if the child or vulnerable adult is no longer a child or vulnerable adult. 

There are various defences to the offence. They are to do with the circumstances where the child or vulnerable adult made the person acquiring the information aware of their wish for the Garda Síochána not to be informed, or when certain persons or certain professionals hold the reasonable view that the Garda Síochána should not be informed. These defences are subject to various factors however and the Act and/or a solicitor should be consulted on all of the defences and the exact details thereof.

C. Section 14, Children First Act, 2015

Mandated persons are, in principle, required to report any knowledge they might acquire in the course of their specified employment or profession to Tusla, the Child & Family Agency . This is known as mandatory reporting.

Mandated Persons are those who, in the course of their professional work, have ongoing contact with children and / or families and who are in a key position to protect children from harm. They include teachers, doctors, nurses, priests, Gardaí, foster carers, some child safeguarding personnel, youth workers and people in several other professions. See the complete list in Schedule 2 of the Act.