1. "AS FAR AS PRACTICABLE"
Section 10 of the Children First Act 2015 creates a statutory duty upon organisations that provide services to children to ensure that those children are kept safe from harm while availing of the service provided by the organisation. In this essay we provide guidance on the interpretation and application of the standard of care imposed on a "duty-holder" (i.e. the organisation or person who the legislation imposes a statutory duty upon). In particular:
- We look at how the standard of care is an objective (not subjective) test.
- We explore the absence of the "test of reasonableness" in assessing the meeting of the objectivity test, and the implications of this absence.
- And we consider best practice ways of identifying and assessing risk controls: their availability, their feasibility, their suitability.
- There's a useful hypothetical case study (of a football club called Any Club FC) of the application of taking steps ‘as far as practicable’ under s.10 Children First Act 2015.
- We also take a detailed look at the definition of ‘as far as practicable’, along with the process for evaluating the application of the definition in a particular organisation.
- Finally, we set out some of the significant factors the Board needs to take into account & weigh up when assessing suitable risk controls, as it carries out its duty to ensure that the children to whom it provide services are kept safe from harm.
2. LET’S TALK STANDARD OF CARE
Under s.10 Children First Action 2015, a provider of a relevant service shall ensure, ‘as far as practicable’, that each child availing of the service from the provider is safe from harm while availing of that service.
This essay therefore considers the standard of provision for the care and protection and welfare of children that an organisation (as embodied by the Board of Directors and / or Committee) will be expected to meet under the Children First Act 2015 that was enacted at the tail end of 2015 (and Regulations likely to issue in due course).
‘As far as practicable’ is used to qualify the obligation of the duty-holder under s.10 Children First Act 2015, in terms of the standard of provision for the care and protection and welfare of children and certain other duties in the Children First Act.
3. PROVIDER BEWARE! PRACTICABILITY, NOT REASONABLENESS, IS KEY
One particularly important caveat at this point.
The phrase ‘as far as practicable’ is missing one key word that makes a seismic difference in understanding the impact of the phrase.
That word?
‘Reasonably’.
4. 'AS FAR AS PRACTICABLE' IS A SPECIFIC STANDARD OF CARE.
Adding the word ‘reasonably’ so that it becomes ‘as far as reasonably practicable’, would have qualified, to a significant degree, the level of the high standard of practicability to which a duty-holder under section 10 of the Children First Act 2015 would have been obliged to be held.
The absence of the word reasonably means that the only question to which the duty holder must address himself is this: is it practicable to take the step or measure in meeting the standard of care for the provision of the care and protection and welfare of children to whom that organisation provides relevant services?
It's worth looking at what another ground-breaking piece of Irish legislation requires in the context of health and safety at work:
In the Safety, Health & Welfare at Work Act 2005, there are, by contrast, an express calling out of the 3 qualifying duties. I'm including this here simply to illustrate the contrast with the statutory duty on obligations created by s.10 Children First Act 2015:
The 3 x Practicability Duties in Safety, Health & Welfare at Work Act 2005
5. ESTABLISHING WHAT ‘AS FAR AS PRACTICABLE’ LOOKS LIKE IS AN ‘OBJECTIVE’ TEST
An ‘objective’ test in establishing what is ‘as far as practicable’
What is ‘as far as practicable’ is determined objectively.
(As opposed to it being determined ‘subjectively’, i.e. the duty-holder basically saying that they’re satisfied with their standard of care, and therefore they reckon that they’ve met the standard, simply because they say that they have).
Meeting the test of objectivity means that a Board of Directors and / or Committee must meet the standard of behaviour expected of a person in another well run Board of Directors and / or Committee’s position and who is required to comply with the same duty.
There is only one element to what is ‘as far as practicable’.
The Board of Directors and / or Committee must consider what can be done - that is, what is possible in the circumstances for ensuring that each child availing of the service from the provider is safe from harm while availing of that service.
Now, had the obligation on the duty-holder been to take steps only ‘as far as reasonably practicable’ (as opposed to what the legislation actually requires, which is to take steps simply ‘as far as practicable’), then the duty-holder would, in assessing whether it was practicable to take certain steps, have been obliged to consider whether it is reasonable, in the circumstances, to do all that is possible.
This would have meant that what can be done should be done unless it would be reasonable in the circumstances for the The Board of Directors and / or Committee to do something less.
But the absence of the word ‘reasonably’ to qualify the obligation to take steps ‘as far as practicable’, means that the legislators have imposed a significantly higher duty on the organisations to which the legislation applies.
Contrast this lack of the reasonableness test, with what the obligation on the duty-holder would have looked like had there been a qualified obligation upon the duty-holder so that they are obliged to only do take steps ‘as far as reasonably practicable’.
In that case (had there been a test of reasonableness inserted):
- 1. The Board of Directors and / or Committee would first be obliged to consider what can be done - that is, what is possible in the circumstances for ensuring the care and protection and welfare of children who the provide services to.
- 2. They would then have to consider whether it is reasonable, in the circumstances to do all that is possible.
It is this second step, which is missing from the obligation on the duty-holder under section 10 of the Children First Act 2015, that, my view, elevates significantly the standard of care to which the duty-holder will be held.
6. WHAT CAN BE DONE, MUST BE DONE – IMPACT OF THE ABSENCE OF THE REASONABLENESS TEST
The absence of the reasonableness test means that the statutory duty to take steps as far as is practicable ensuring the care and protection and welfare of children who the organisation provide services to, cannot be watered down or lessened by the introduction of the question as to whether the taking and implementation of those steps satisfied the test of reasonableness in all the circumstances.
7. WHAT CAN BE DONE, MUST BE DONE
If it is reasonable in the circumstances for the Board of Directors and / or Committee to do something less than that which is practicable to do, then the section 10 obligation has been breached.
Simply put, the question of whether it is reasonable, or not, to take a step or introduce a measure to ensure the care and protection and welfare of children, is irrelevant.
What is relevant is this: is it practicable to take those steps or introduce those measures?
Because if it is practicable, even if the organization considers that step on measure to be unreasonable, then the duty holder is required under section 10 of the children first at 2015 to take those practicable steps or implement the practicable measures.
Anything less is, in my considered opinion, a breach of the new statutory duty created by section 10 of the Children First Act 2015
8. CAN’T IMPLEMENT A RISK CONTROL MEASURE? STEP ASIDE PLEASE
Here’s the rub.
If a Board of Directors and / or Committee of an organisation, to which s.10 of the Children First Act 2015 applies, cannot afford to implement a control, the Board of Directors and / or Committee should not engage in the activity that gives rise to that hazard or risk.
9. THE OPERATION OF ‘AS FAR AS PRACTICABLE’ – AN EXAMPLE
Any Club FC provides football to approximately 250 children under the age of 18. All the coaches are volunteers, primarily drawn from the pool of parents whose children play in the club. There is an annual subscription for the children to pay as membership of Any Club FC.
The volunteer Board of Directors and volunteer Committee are vaguely aware that they have a set of policy and procedures that talks about the steps they should take to safely recruit any new adult getting involved in the club.
The reality on the ground is that there simply isn’t the time, or the willpower, to actually follow through on what’s required. It’s the same small number of people doing the vast majority of work in running the club, and to be honest it seems to them like it’s complete overkill going through all this paperwork.
10. GETTING FROM WHERE THEY ARE, TO WHERE THE CLUB NEEDS TO BE
In this case, the club:
- Attends a children’s welfare training course, and reads up on its own Code of Ethics, and realises that it’s operating a long way short of best practice in how the club recruits new mums and dads into coaching the children in the club.
- The club identifies the risks, which are that people who shouldn’t be given unsupervised access to children, obtain that unsupervised access. The risks are assessed as having at least a moderately high likelihood of occurring if risk controls are not implemented and maintained.
- The committee determines the requirements for safe volunteer recruitment under the Children First Act 2015 (and other relevant legislation and non-statutory guidelines, including their own Code of Ethics) and obtains information from relevant codes of practice about the various ways of minimising the likelihood or degree of harm.
The option of automating the process through governance, risk and compliance software is considered, that does not have the risks, or has in place means for minimising the risks to the lowest level is considered. Another option includes taking a more rigorous approach to the paper and Excel-based recruitment of volunteers. These various measures will need to be supported by appropriate systems of work, training and supervision.
Both the Board of Directors, as well as the committee, identifies which of the options are available and suitable for use in the circumstances and the degree to which they will individually or together eliminate or if that is not possible minimise the risks so far as is practicable. Again, both the Board and the Committee, considers whether particular risk controls may introduce other hazards or increase other risks.
Stopping the activity of recruiting volunteers at all would eliminate the risk of the wrong people getting unsupervised access to children, however, this option is not a realistic alternative as the recruitment of volunteers to make the club run on a week to week basis is an integral and necessary step in the successful running of a sports club.
Having:
- identified what can reasonably be done,
- weighed up the degree and likelihood of harm
- weighed up how far a control may minimise risk
Any Club FC decides to introduce a new governance, risk and compliance software platform which has come onto the market that automates the process of recruiting volunteers in a transparent, tamper-proof way. This option eliminates the risky existing process where everything is done by paper and reliant on the postal system. It also increases accountability and both good governance and data protection practices, while also it reduces the places (email, SMS, physical files, Word documents, Google Docs, Excel documents) where the data is stored, which will minimise the risk of potential data protection breaches.
Although the software is more expensive than the status quo (on which there is little or no budget at present), the option chosen by the Board and Committee provides significant child protection and welfare benefits and also increases administrative efficiency in the running of Any Club FC. Given the severity of harm and likelihood of it occurring, the costs are considered unlikely to be grossly disproportionate to the risk. If a new governance, risk and compliance software platform with improved design controls was not suitable or available, Any Club FC could opt to attempt to tighten up their processes on paper. This would also go some way (but not all the way) to minimising the identified risks so far as is practicable.
After Board consideration, Any Club FC installs the new governance, risk and compliance software platform according to the manufacturer’s instructions and provides its workers with relevant training on the safe operation and maintenance. The effectiveness of the risk controls are reviewed after an agreed period in consultation with the Board of Directors and Committee.
11. HOW IS ‘AS FAR AS PRACTICABLE’ DEFINED?
In this context, as far as practicable means that which is, or was at a particular time, able to be done to ensure the protection and care of children to whom an organisation provides relevant services, taking into account and weighing up all relevant matters including:
- the likelihood of the hazard or the risk concerned occurring
- the degree of harm that might result from the hazard or the risk
- what the person concerned knows, or ought reasonably to know, about the hazard or risk, and ways of eliminating or minimising the risk
- the availability and suitability of ways to eliminate or minimise the risk, and
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk
What is meant by "practicable" has been considered in a number of UK and Irish cases:
Lee v Nursery Furnishings Ltd [1945] 1 All ER 387
Lord Goddard LCJ accepted the meaning of practicable as being capable of being carried out in action and feasible.
Adsett v K & L Steel Founders and Engineers Ltd [1953] 1 All ER 97
The UK Court of Appeal referred with approval to the definition of practicable in Webster’s Dictionary of ‘possible to be accomplished with known means or known resources’.
Knight v. Demolition and Construction Co. Ltd. [1953] 1 WLR 981, Parker J after reviewing the definitions set out in Lee and Adsett stated:
"In other words, the test here has nothing to do with whether it is reasonably practicable, but merely whether it is possible and practicable in that sense" [emphasis added].
The Irish courts have considered the phrase "as far as practicable" in the context of considering what circumstances might make it “impracticable” to obtain a search warrant from a judge of the District Court. See the Irish Law Reform Commission report into search warrants.
In the case the court considered Article 16.2.3 of the Constitution which provides that the ratio between the number of members to be elected to Dáil Éireann at any time for each constituency and the population of each constituency as ascertained at the last preceding census shall “as far as practicable be the same throughout the country.”
The High Court, in O'Donovan v Attorney General [1961] IR 114
Budd J cited the English case Lee v Nursery Furnishings Ltd in which Goddard LJ interpreted “practicable” as defined in the Oxford English Dictionary as “capable of being... carried out in action... feasible.”
Budd J held that, in relation to Article 16.2.3°, “practicable” means “so far as that is capable of being carried into action in a practical way, having regard to such practical difficulties as exist and may legitimately, having regard to the context and provisions of the Constitution generally, be taken into consideration.”
He added that it does not involve “taking mere matters of convenience into consideration.”
The Supreme Court cited this definition of “practicable” with approval in McC v Eastern Health Board when interpreting “as soon as practicable” under section 8(1) of the Adoption Act 1991.
12. HOW TO DETERMINE WHAT IS PRACTICABLE – THE PROCESS
To identify what is or was practicable, all of the relevant matters must be taken into account and weighed up and a balance achieved that will provide the highest level of protection that is possible in the circumstances.
Remember, due to the absence of the reasonableness test, while some matters may be relevant to what can be done, the question of whether it is reasonable to do so is irrelevant.
No single matter determines what is (or was at a particular time) practicable to be done for ensuring that each child availing of the service from the provider is safe from harm while availing of that service
13. FACTORS TO TAKE IN ACCOUNT & WEIGH UP
- The likelihood of the hazard or the risk concerned occurring
- Degree of harm that may result if the hazard or risk eventuated (Knowledge about the hazard or risk; Knowledge about ways of eliminating or minimising the risk)
- Ways of eliminating or minimising risks – the hierarchy of risk controls (Availability and suitability of ways to eliminate or minimise risks; Cost of eliminating or minimising the risk)
The Board of Directors and / or Committee should consider all of the facts and identify and consider everything that may be relevant to the hazards, risks or means of eliminating or minimising the risks.
14. KNOWLEDGE ABOUT THE HAZARD OR RISK
It is practicable for a Board of Directors and / or Committee to:
- Proactively take steps to identify hazards within their organisation before they cause a potential risk of harm to the safety and welfare of children to whom they provide services. This should be done before the activity is undertaken or the circumstances occur that result in the risk.
- Understand the nature and degree of any harm that an identified hazard may cause, how the harm could occur, and the likelihood of the harm occurring.
- To consider and understand, within the available state of knowledge, how they can cause or prevent hazards and risks in the implementation of safe volunteer recruitment processes.
15. KNOWLEDGE ABOUT WAYS OF ELIMINATING OR MINIMISING THE RISK
Regulations and Codes of Practice made under existing statutory and non-statutory requirements around the welfare and protection of children, may identify ways to eliminate risks to the safety and welfare of children, so far as is practicable, and will also guide the Board as to if it is not practicable to minimise risks (referred to as control measures).
Code of Ethics can also be evidence to show what is practicable (so guess what? If a particular step is included in your own Code of Ethics, and you're not following it, that's pretty much a slam-dunk piece of evidence that your organisation is failing to do everything practicable in its power to keep the children safe from harm while availing of your service.
16. THE HIERARCHY OF RISK CONTROLS
The ways of eliminating or minimising risks are ranked from most effective and reliable to the least effective and reliable (known as the hierarchy of risk controls) and are described below.
17. HIERARCHY OF RISK CONTROLS (1): AVAILABILITY, FEASIBILITY AND SUITABILITY OF WAYS TO ELIMINATE OR MINIMISE RISKS
This part requires a consideration of not only what is available, but also what is suitable for the elimination or minimisation of risk.
A risk control that may be effective in some circumstances or environments may not be effective or suitable in others.
17.1. AVAILABILITY
Equipment or software to eliminate or minimise a hazard or risk is regarded as being available if it is provided on the open market, or if it is possible to manufacture it.
17.2. FEASIBILITY
A work process (or change to a work process) to eliminate or minimise a hazard or risk is regarded as being available if it is feasible to implement.
17.3. SUITABILITY
A way of eliminating or minimising a hazard or risk is regarded as suitable if it:
- is effective in eliminating or minimising the likelihood or degree of harm from a hazard or risk;
- does not introduce new and higher risks in the circumstances; and
- is practical to implement in the circumstances in which the hazard or risk exists.
The ways of controlling risks are ranked from the highest level of protection and reliability to the lowest. This ranking is known as the hierarchy of risk control. A Board of Directors and / or Committee should work through this hierarchy to choose the control that most effectively eliminates or minimises the risk in the circumstances.
The Board of Directors and / or Committee must eliminate risks to the welfare of children so far as is practicable. If there are no available or suitable ways to eliminate a hazard or risk, then the Board of Directors and / or Committee must consider all available and suitable ways to minimise risks, so far as is practicable by:
- substituting a hazard with something, or a number of things, that gives rise to a lesser risk
- isolating the hazard from any children exposed to it
- implementing recruitment risk controls
If there is a remaining risk, it must be minimised so far as is practicable by implementing administrative controls, and if a risk still remains, then suitable other measures should be taken.
How far a control may minimise risk, on its own or together with other controls, should be considered when weighing up what can be done.
Some of the controls may lower the likelihood of harm, others may lower the degree of harm that may result, and some may lower both.
18. HIERARCHY OF RISK CONTROLS (2): COST OF ELIMINATING OR MINIMISING THE RISK
Although the cost of eliminating or minimising risk is relevant in determining what is practicable, there is a clear presumption in favour of the safety and welfare of children ahead of cost.
The cost of eliminating or minimising risk must only be taken into account after:
- identifying the extent of the risk (the likelihood and degree of harm)
- identifying the available ways of eliminating or minimising the risk.
The costs of implementing a particular control may include costs of purchase, installation, hosting, maintenance and operation of the control measure and any impact on productivity as a result of the introduction of the control measure.
A calculation of the costs of implementing a control measure must take into account any savings from fewer non-compliance issues, potentially improved productivity and reduced turnover of volunteers.
In identifying whether a particular expenditure is practicable in the circumstances, the duty- holder must consider:
- the likelihood and degree of harm of the hazard or risk; and
- the reduction of the likelihood and/or degree of harm that will result if the control measure is adopted.
19. THE MORE LIKELY THE HAZARD OR RISK, THE LESS WEIGHT TO BE ATTRIBUTED TO COST OF RISK ELIMINATION
The more likely the hazard or risk is, or the greater the harm that may result from the hazard, the less weight should be given to the cost of eliminating the hazard or risk.
The cost of risk control options, individually and together, may be relevant when deciding which of the available options are practicable, in a number of ways.
If there are a number of options available for eliminating or minimising a risk that achieve the same level of reduction in likelihood or degree of harm, the Board of Directors and / or Committee may choose to apply a number of the least costly options. Using more expensive risk control options may not be required to minimise a risk that is low in likelihood or severity of harm.
Cheaper, available and suitable options may be used instead of a costlier option that may further minimise the risk or severity of harm, where the cost of the costlier option is grossly disproportionate to the risk. This will only apply where the cost is high and the likelihood or degree of harm is low.
Choosing a low-cost option that provides less protection simply because it is cheaper is unlikely to be considered a practicable means of eliminating or minimising risk.
If the degree of harm is significant (e.g. adults getting unsupervised to children is at least moderately likely, where those adults have not gone through the organisation’s volunteer recruitment process) then it is unlikely that the cost of implementing available and suitable safety measures to eliminate or minimise the risk would ever be so disproportionate to the risk to justify a decision not to do so.
When all’s said and done, it may be reasonable to expect (and require) the Board of Directors and / or Committee to eliminate the risk by ceasing the relevant activity if, after all ‘affordable’ control measures have been considered, there remains a significant risk of serious harm occurring to the children availing of the service that the organization provides.
Or, in other words: if you can’t afford to protect again the risk, then your organization may have to cease carrying out its primary activity.
20. NO EXCUSES
Where the cost of implementing risk controls is grossly disproportionate to the risk then you might think this would mean the use of those controls is not reasonable.
However, as discussed, there is no reasonableness test in assessing whether an organisation has taken all the steps ‘as far as practicable’ to ensure that each child availing of the service from the provider is safe from harm while availing of that service.
Put another way, cost cannot be a reason given by the Board of Directors and / or Committee to excuse itself from doing anything to minimise the risk so far as is practicable.
21. CAPACITY TO PAY NOT RELEVANT
The question of what is ‘practicable’ is to be determined objectively, and not by reference to the the Board of Directors and / or Committee’s capacity to pay or other particular circumstances.
Let me just repeat that sentence: the question of what is ‘practicable’ is to be determined objectively, and not by reference to the the Board of Directors and / or Committee ’s capacity to pay or other particular circumstances.
A Board of Directors and / or Committee cannot expose people to a lower level of protection simply because it is in a lesser financial position than another Board of Directors and / or Committee .
If there are for example two sports clubs, and in both Club A and Club B, both Boards of Directors and / or Committees are faced with the same hazard or risk in similar situations, the Club A Board of Directors and / or Committee cannot expose the children in their club to a lower level of protection simply because it is in a lesser financial position than Club B’s Board of Directors and / or Committee .
(Well, they can choose to do so, but that choice makes them in breach of their fundamental duty to ensure the safety and welfare of children to whom they provide services).
If there are options available for eliminating or minimising a risk that achieve the same level of reduction in likelihood or degree of harm, the Board of Directors and / or Committee may choose the least costly option.
However, choosing a low cost option that provides less protection simply because it is cheaper is unlikely to be considered a practicable means of eliminating or minimising risk.
The costs of implementing a particular control may include costs of purchase, installation, maintenance, operation of the control measure and any impact on productivity as a result of the introduction of the control measure.
Note: I am indebted to the Australian government’s work safety department for their crystal clear exposition of the practical meaning of “as far as reasonably practicable” in the context of their health and safety legislation, from which I have drawn heavily here to tease out the application of the phrase "as far as practicable" (excluding the test of reasonableness) to the protection and welfare of children as envisaged by the Irish legislation).
