This second of two semi-plenary sessions comprised a presentation by Niamh McKeague of the Garda SiochÃ¡na Ombudsman Commission (GSOC) followed by a Q&A; session from the floor with Ms. McKeague and Michael Oâ€™Neill BL, Legal Advisor to the GSOC. The session was chaired by Sophie McGuinness of the Office of the Ombudsman for Children.
Ms. McKeague began by outlining the functions and processes of the GSOC as provided for by the Garda SÃochÃ¡na Act 2005
. The GSOC began to operate in May 2007 and can consider complaints relating to Garda conduct (including breach of discipline), investigate any practice, policy or procedure of the GardaÃ with a view to reducing the level of complaints relating thereto, and consider matters referred by either the Garda Commissioner or the Minister for Justice.
After outlining the remit, functions and processes of the GSOC Ms. McKeague proceeded to provide a number of statistics about the Commissionâ€™s work up to the end of January 2008. From its establishment to the end of January 2008 the Commission had received over 2000 complaints, just under 2% of which had come from children and young people. The Act provides that a complaint may be made by any member of the public and does not impose any age-related standing requirements for complainants, therefore children are eligible to submit complaints to the commission. It was on the appropriate way to deal with such complaints, and the particular challenges arising therefrom, that the remainder of the presentation focused. More information on the GSOC is available here
Ms. McKeague firstly considered the challenge of deciding on the definition of â€˜childâ€™ for the purposes of the GSOC â€“ although the Act does not prohibit children from complaining, it does not offer any substantive guidance on the particular challenges connected thereto. Having considered the various ages by which childhood is defined in different instruments (UNCRC â€“ 18; Non Fatal Offences against the Person Act 1997 â€“ 16;12 for criminal responsibility) the GSOC decided to treat all complainants under the age of 18 as child complainants in order to ensure that, as much as possible, potentially vulnerable complainants would be identified and appropriately dealt with. In this connection she also noted the commitment of GSOC to providing appropriate training to GSOC staff and the cooperation between GSOC and the Office of the Ombudsman for Children in equipping the GSOC to deal with child complainants.
Ms. McKeague then addressed two particular challenges to the GSOC in dealing with child complaints. The first related to information and the provision of information to certain parties once a complaint had been lodged. She noted the importance of making it clear to child complainants that GSOC can not guarantee the absolute confidentiality of complaints, particularly since s. 103
requires that all interested parties be kept informed about the progress and results of an investigation. In this context, interested parties might, she reflected, sometimes include parents of the child complainant. The issues surrounding information are further complicated by s. 81
of the Act which prohibits the disclosure of information to anyone where such disclosure may have a harmful effect. Although certain bodies are exempted from causing harmful effect through receipt of information, the HSE and parents are not included in this list. Thus, the investigators must make a case by case determination of whether or not disclosure of information to a non-exempted party such as parents or the HSE might have a harmful effect and advise the individual commissioners in each case as to whether or not they can sanction release of information. The disclosure of information in violation of s. 81 can result in criminal sanctions and can therefore cause significant difficulties for investigators working in the GSOC.
Ms. McKeague also considered the difficulties relating to duty of care. While all parties accept that there is a duty of care to children, certain structures involve numerous actors all of which may have a duty of care but where there is no clear delineation of whether one partyâ€™s duty stops and anotherâ€™s begins. In this context she referred specifically to the area of child protection and the Children First
strategy in which parents, the HSE and an Garda SÃochÃ¡na are all relevant actors. Children First
has been incorporated into the Garda code, therefore a question arises as to whether or not a member could be investigated for and found to have engaged in dereliction of duty for not acting in a particular way in relation to a child and the difficulties that would pose in a situation where there is no clear delineation of duties between the three main actors.
Finally Ms. McKeague reflected on the usefulness of meaningful communication and co-operation between GSOC and various different bodies in developing a policy relating to child complainants and considering the manner in which the questions that arise in the early stages a new scheme can be resolved in a manner that ensures the paramouncy of the childâ€™s best interests.