Tusla – Register for Non-Compliance

The recent RTÉ Prime Time investigates special focussing on the “Hyde and Seek” cheche chain, aired on Wednesday, 24th July 2019 demonstrated a significant failing in the standard of care expected from a childcare provider. This documentary has received much public attention and resulted in protests outside the Hyde and Seek creche chain’s Drumcondra premises on Friday, 26th July 2019.

Considering this recent documentary focussing on the standard of care in the childcare profession, it is of relevance to highlight that Tusla has recently implemented the Register of Non-compliance with Child Safeguarding Statement requirements, as set out in s. 13 of the Child First Act 2015, that was commenced in December 2017. The Child First Act 2015 put the “Children First: National Guidance for the Protection and Welfare of Children” on a statutory footing. Through the Act several specific groups of professionals and organisations providing services to children have statutory obligations placed upon them. The Tusla website states that the 2015 Act is intended to:

• “Raise awareness of child abuse and neglect
• Provide for mandatory reporting by key professionals
• Improve child safeguarding arrangements in organisations providing services to children
• Provide for cooperation and information-sharing between agencies when Tusla – Child and Family Agency, is undertaking child protection.”

Section 11(1) of the 2015 Act sets out the requirement to undertake a risk assessment and prepare a Child Safeguarding Statement within three months of establishment as such a provider. This obligation to prepare a Child Safeguarding Statement falls on all providers providing what can be considered “relevant services” under Schedule 1 of the 2015 Act. The definition of relevant services is wide ranging and, as set out in schedule 2 s. 5., these services may include the following:

“Any work or activity which consist of the provision of

• educational, research, training, cultural, recreational, leisure, social or physical activities to children,
• care or supervision of children,  
• formal consultation with, or formal participation by, a child in respect of matters that affect his or her life whether or not for commercial or another consideration.”

Section 11(1) sets out that a Child Safeguarding Statement should “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”.

Section 11(3) builds upon the statement made in s.11(1) stating the requirements for what exactly is to be included in such a statement:

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

• to manage any risk identified,
• 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,
• 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,
• 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,
• 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 ,
• for maintaining a list of the persons (if any) in the relevant service who are mandated persons, and
• for appointing a relevant person for the purposes of this Part.”

The Act further sets out that the statement must be displayed in a prominent place and provided to the members of staff of the provider and on request to any parent or guardian of a child who recently availed of the services, the Agency or a member of the public. A review of the statement must take place as soon as practicable following any action occurring that would mandate the requirement of such a review and if no such action has occurred the statement is to be reviewed on a twenty-four-monthly basis.

Section 12 of the 2015 Act sets out the enforcement proceedings for non-compliance with s. 11. Under s. 12 a notice will be served on any service provider who fails to furnish the Agency with a copy of the statement following a request. The notice will require them to furnish the Agency with a copy of the statement within a set period of time, specified in the notice, and failure to do so will result in the provider being serviced with a non-compliance notice.  Section 13 of the Act sets out the obligation for the establishment of a Register of Non-compliance Notices.

TUSLA CHILD SAFEGUARDING STATEMENT COMPLIANCE UNIT

The Tusla Child Safeguarding Statement Compliance Unit (CSSCU) is a dedicated unit set up to implement the provision of s. 11 of the 2015 Act,  operate and maintaining the required Register of Non-Compliance Notices under s.13 of the 2015 Act and carry out the enforcement process leading up to being placed on the register under s.12. The register will be publicly available online and in the Tusla Child Safeguarding Statement Compliance Unit Office. It is noted on the Tusla website that the register will be updated monthly on the first day of each month. The responsibility for the maintenance of the registrar lies with the Head of Registrations and Regulatory Enforcement Children’s Services Regulation, Tusla. Queries in respect of the register can be made to csscu@tusla.ie or 061-461720/061-461738. 

CONCLUSION

In conclusion, in light of the recent publicity received by child care providers it is of the utmost importance that any provider providing a service to children, that falls within the wide definition of a relevant service under schedule 2 of the Act, carry out a risk assessment and prepare a child Safeguarding Statement. A failure to prepare such a statement, as a relevant service provider, will place them at risk of being served with a notice under s.12 of the 2015 Act and eventually placed on the public Registrar of Non-compliance Notices.

ABOUT THE AUTHOR

Denise Kirwan is Partner in Charge of the Child and Family Law department at Comyn Kelleher Tobin. Denise specialises in advising State bodies on extremely sensitive issues arising from applications under the Child Care Act.

This information is for general guidance and it is not intended to be professional legal advice. For further information, contact Denise or a member of the CKT Child and Family Law team.