In this essay we take a look at a couple of situations that the vetting legislation specifically says fall outside of the remit of the vetting legislation. We look at family relationships, personal relationships, and also occasional assistance given by individuals. We look at the different tests for each of these 3 categories, and conclude by noting that, ultimately, it will be the courts that decide the full reach (whether intended, or unintended) of the vetting legislation.
SECTION 3 EXCEPTIONS - OVERVIEW
The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, in dealing with the applicability of Garda vetting, create broad carve-outs / exceptions to the following 3 groups of people, when those 3 groups are involved in the provision of relevant services or activities to children or vulnerable persons.
Namely, the exceptions to the vetting legislation involve relevant work or activities undertaken in the course of:
- 1. A family relationship (whether for commercial consideration, or not)
- 2. A personal relationship (so long as not for commercial consideration)
- 3. Occasional assistance by an individual (for no commercial consideration, and not in 5 specified activities)
Quick side-note: this section – section 3 of the vetting legislation – was updated in 2016 to include people involved employed by the state examinations board in certain circumstances.
SECTION 3 CARVE-OUTS
Ok so this is pretty clear, a straightforward statement to tell us who the vetting legislation is specifically not intended to cover.
Let’s look further into the situations which the legislators reckon shouldn’t fall into the remit of the law:
Well let’s remind ourselves what ‘relevant work’ means and what is meant by a ‘family relationship’.
Remember from Number 27 of our 34 Terms You Should Know essay that the notion of relevant work or activities, is the 'umbrella' provision which covers all relevant work which the Act is intended to cover, but which is then split out into the two main branches, namely work or activities relating to children, and relating to vulnerable persons.
So what does ‘undertaken in the course of mean’?
And what then is meant by a ‘family relationship’?
WHAT A ‘FAMILY RELATIONSHIP’ MEANS
So we’re looking at:
- A relationship
- Between 2 persons
- Who live in the same household and who
- Treat each other as though they were members of the same family
There are a number of objectively assessable criteria that need to be satisfied here, but the important terminology in this definition is:
“and treat each other as though they were members of the same family”.
But what does ‘a relationship’ mean?
And does ‘as though they were’ members of the same family mean that they don’t actually have to be members of the same family, simply that they have to ‘treat’ one another as if they were family members?
Seems very wooly and unclear to me.
Between 2 persons is easy enough to understand, but what about ‘who live in the same household’.
What happens with 2 people who are in a relationship, who treat each other as though they were members of the same family, but who do not live in the same household?
What’s that? Never going to happen you say?
Well what about separated or separating families?
Of particular note for the Family Relationship section 3 (1) (a) exception, is the fact that commercial consideration is specifically allowed to pass between the parties.
By ‘allowed’, what I mean is this.
The carve-out in section 3 (1) (a) for Family Relationships differs from the two other carve-outs
- Personal Relationship: s.3 (b) (1); and
- (Occasional) Assistance by an Individual (s.3 (b) (2))
both of which specifically state that when there is commercial consideration passing between the parties providing the relevant work or activities, and the recipients, then in that case the section 3 carve-outs no longer apply; and the vetting legislation requirements kick in.
WHAT A ‘PERSONAL RELATIONSHIP’ MEANS
Let’s see what else the law-makers think should fall outside of the operation of the vetting legislation:
Under s.3(2), “personal relationship” means a relationship between or among friends and a friend of a member of an individual’s family shall be regarded as being a friend of the individual also.
Let’s look at that a little closer.
How does someone actually tell if their relevant work or activities is being undertaken in the course of a personal relationship? Well it’s about:
- A relationship
- Between or among friends
- And a friend of a member of an individual’s family shall be regarded as being a friend of the individual also:
Confusing? It is to me!
What about ‘for no commercial consideration’?
First, what’s consideration?
Well at law for a contract to come into existence, there needs to be 3 general elements in place (this a non-exhaustive list):
- First, an offer.
- Second, acceptance by an offer.
- Third, consideration i.e. something passing from the person accepting the offer, to the person making the offer.
So why would the legislators use such a seemingly old, archane word as ‘consideration’?
Can’t they call a spade a spade, and just say ‘money’?
Well, as it turns out, ‘consideration’ includes not merely money.
But remember it’s not merely for ‘consideration’ but for ‘commercial consideration’.
So if money – or something else that can be classified as commercial consideration – is being exchanged, then where relevant work or activities are being carried out, the s.3(1)(b) Personal Relationship Exclusion falls away, and the vetting legislation will kick into effect.
Some people will call this absurd.
Remember, however, that what is being looked at here again is the crux of the relationship between the parties.
As soon as the provision of the relevant work or activities moves outside of the scope of the purely familial or personal relationship based, and strays into the territory of commerce, then at that stage, the lines become blurred. And what the law says is this: blurred lines in this area just aren’t good enough.
ASSISTANCE GIVEN BY AN INDIVIDUAL
S.3(1)(c) is a crucial part of the legislation.
- Giving of assistance
- By an individual
- On an occasional basis and
- For no commercial consideration
- At a school or
- At a sports event or sports activity or
- At a community event or community activity
OTHER THAN (which means ‘except when’)
Such 'other than' assistance (which is precluded) includes anything that can be interpreted as:
- Coaching children or vulnerable persons, or
- Mentoring children or vulnerable persons, or
- Counselling children or vulnerable persons, or
- Teaching children or vulnerable persons, or
- Training children or vulnerable persons
So, under the legislation, where an individual occasionally gives assistance for no commercial consideration at a school, or a sports/community event or activity, then, strictly so long as that assistance avoids (1) coaching, (2) mentoring (3) counselling, (4) teaching or (4) training children or vulnerable persons, then that individual would not be required to go through the vetting legislation.
Which begs the question, if an individual is satisfied that the requirements that allow them to help, how do they know if they fall into the ‘other than’ prohibition?
Remember now that what I call the ‘Section 3 Other Than Prohibition’ says that even if you’re only helping occasionally at a school/sports/community event or activity, you’re brought back into the remit of the legislation where that occasional help involves coaching, mentoring, counselling or teaching children or vulnerable persons.
And you have to ask, I feel, how many school, sports or community events or activities don't involve actually coaching, mentoring, counselling, teaching or children of vulnerable persons?
The answer? Clearly, a lot!
But there's going to have be a line drawn between school, sports or community events or activities that do involve coaching, mentoring, counselling or teaching children or vulnerable persons; and those that don't.
Ultimately that's an exercise in objective risk assessment.
Let’s just pause here a moment.
This Section 3 Other Than Prohibition may not have been the specific intention of the people writing the legislation.
But at face value, that’s what the legislation currently states.
Nevertheless, to give an indication about the state of play in this area, some organisations today state “Under the National Vetting Bureau Act 2012 - sect 3 (1) (c) it states, persons giving of assistance on an occasional basis (i.e. at training sessions, competitions, national squad etc) and for no commercial consideration at an event would not be required to be vetted”.
This is incorrect in my view, as the advice in this case simply fails to include what I call the ‘Section 3 Other Than’ prohibition (so long as that assistance avoids (1) coaching, (2) mentoring (3) counselling, (4) teaching or (4) training children or vulnerable persons).
Or put another way, if giving of assistance on an occasional basis at a training event, competition or national squad level involves coaching / counselling / mentoring or teaching work with children or vulnerable persons, then the Section 3 Other Than prohibition specifically kicks in to exclude the operation of the Section 3 permission for occasional assistance.
So while it is certainly true to say that occasional volunteering will not be subject to the vetting regime, that is only the case where that occasional volunteering falls outside of the examples given in the Section 3 Other Than prohibition.
One other caveat in this area: the test of the lack of commercial consideration passing between the parties is important and should not be overlooked or brushed aside.
Of interest here is the fact that at least one major sporting organization is advising its members that despite the ‘Section 3 Other Than’ prohibition set out in the legislation, in their view it is permissible to allow ‘guest’ coaches to work in supervised roles with children.
This is apparently down to the discretion of the club, so long as a number of conditions are met such that they are for example: known to the club, only do so e.g. 3 times a year, be of 18 years of age, have completed a vetting application form (i.e. commenced the process), signed various Ts&Cs, and be under the supervision of a vetted volunteer.
In many ways this is an eminently common sense approach to the involvement of occasional guest coaches.
It gives a useful checklist for a local organization to measure itself against as well.
And it would appear to be a line that has some form of institutional / establishment support as well.
The problem, at least as I see it, is that the legislation does not allow for this interpretation.
If it did allow for this, surely the legislators would have said as much, in an extension of the Section 3 Other Than Prohibition?
I think in that case the legislators would have said something like this:
Accurate interpretation of the legislation is clearly going to be of fundamental importance.
THE ULTIMATE ARBITERS
Ultimately, it won’t be organisations, or indeed the new National Vetting Bureau who decide on the correct interpretation of the operation of the legislation, but it’ll be the courts; with a judge, dealing with an alleged breach, and the consequences of that alleged breach.
It is at that point then that particularly close scrutiny will be applied to the approach being taken in the section 3 exclusions from vetting.
Familiarity with, and an understanding of, the exclusions to the National Vetting Bureau Acts legislation is therefore going to be increasingly important.
This essay is for general information purposes only and does not constitute legal or other professional advice.
Specific legal advice from a firm of solicitors should always be sought on the application of the law in any particular situation.
Whilst all reasonable endeavours have been made to ensure the accuracy of the content, no liability whatsoever is accepted for any omissions or errors or for any action taken in reliance of the information in this essay.