Sorting the wheat from the chaff: Children First Act 2015, Section 10, Child Safeguarding

The proverbial phrase "separate the wheat from the chaff" may not be terribly meaningful to you — unless you happen to be a grain farmer. Then, it is good to know that chaff is the husk surrounding a seed, and that it is generally thrown away.

In cereal crops like rice, barley, oats, and wheat, the seed — the part of the plant that we eat — is surrounded by a husk. This waste material has been called chaff since the twelfth century at least, but the word has a long history as a metaphor meaning "objects and ideas of little or no value," as well.

How’s this relevant?

Well, section 10 of the Children First Act 2015 basically asks you this: is your organization part of the wheat (of value, for growth) or the chaff (of little or no value when it comes safeguarding children)?

First, let’s circle back a moment and have a look at the Children First Act 2015, that was enacted at the tail end of 2015, and which is to be commenced.

For me, the single key provision can be found at s.10:

Let’s look at that sentence for a moment:

Seems straightforward enough, doesn’t it?

In this our next essay, we’re going to look at what the s.10 duty actually means in practice.

"A PROVIDER..."

A Provider

"...OF A RELEVANT SERVICE..."

Let’s unpack that a bit:

“Provider” means, in relation to a relevant service, a person-

A relevant service

Obviously this begs the question what is a relevant service?

A relevant service is set out at Schedule 1 of the Act.

The first part mainly deals with what I will call educational, healthcare and statutory care service providers:

The next group to which ‘relevant service’ provides is what I loosely call statutory inspectorates, ombudsmen, and counsellors:

And the final grouping, and which arguably covers the greatest number of organisations, as it covers pretty much any activity involving children, whether paid or unpaid:

Schedule 1, section 5 (a), and 5 (b) of the Children First Act 2015 comprises the most far-reaching embrace of the type of work or activity which requires that an organisation carrying out that work or activity must comply with the obligations mandated by the Children First Act 2015.

In short, if, through your organization with whom you work of volunteer, you provide activities to children that have educational, research, training, cultural, leisure, social or physical activities, then you and your work in that organization will fall squarely into the type of service providers that must comply with this legislation.

Coming back to the statutory definition of a provider, the legislation breaks down the relationship between the organization and the person dealing with a child into three discrete areas:

(1) EMPLOYMENT RELATIONSHIP

of the three relationships defined here, the employment relationship is probably the one that most people would naturally presume brings into it the highest obligations and requirements.

(2) CONTRACT FOR SERVICES RELATIONSHIP

It is important that the legislation specifically calls out the relationship for contractors that provide services to children on behalf of other organisations.

Now, why is this important?

To my mind what this specifically suggests is that:

It is worth reminding ourselves of what a “person” is in the legislation. Suffice to say there is a fair amount of consideration required in digging into the people that the legislation specifically excludes from its remit; and we’ll explore this in another essay in due course.

(3) PERMISSION (VOLUNTARY) RELATIONSHIP

The definition of “provider” under (b) (iii) is of critical importance.

The notion of permission (as contrasted with the (1) employment relationship and (2) sub-contracted services relationship) brings into the remit of the legislation any and all volunteers who undertake any work or activity falling within the definition of the relevant service being provided to children.

It is interesting that the actual use of the word volunteer is avoided. Quite why this was done is probably some form of legal issue. However, the permission piece succinctly captures what is required in terms of the volunteers relationship.

"...SHALL ENSURE..."

This means that there is no choice in the matter. It must be done. To ensure that something happens is to “make certain” that it happens.

"...AS FAR AS PRACTICABLE..."

Now here’s an interesting phrase, straight out of Legal 101.

WHAT ON EARTH DOES 'AS FAR AS PRACTICABLE' ACTUALLY MEAN IN THE REAL WORLD?

Well, to put it another way, it means to do everything that another person, in a similar position of responsibility, would think it is practicable to do, or practicable not to do.

How does the Board of Directors decide what, in their circumstances, is  practicable?

Here's the rub: if a particular Board of Directors and / or Committee cannot afford to implement a control measure, the Board of Directors and / or Committee should not engage in the activity that gives rise to that hazard or risk.

This phrase deserves an essay in its own right, so to do a deep-dive on getting a handle of what ‘as far as practicable’ means for your organization, keep an eye out here on the blog for more later this week.

What is especially important, in my view, is the absence of the test of reasonableness in deciding whether or not something is practicable to do in ensuring the protection and care of children who receive services provided by an organisation to whom the Children First Act 2015 applies.

"...THAT EACH CHILD AVAILING OF THE SERVICE FROM THE PROVIDER..."

Pretty much self-explanatory.

"...IS SAFE FROM HARM WHILE AVAILING OF THAT SERVICE."

Where do you start here?

Keeping a child safe from harm while availing of an organisation’s service that it provides to children is, in my view, the outcome of all of the hard work that the organization has put into ensuring that it has, and implements, its safe processes with the recruitment of adult volunteers work with children in that organisation.

Section 10 of the Children First Act 2015 is, arguably, the most significant and far reaching legislative requirement for any sports club, charity, of voluntary organization that works with children, in any way, in Ireland.

In my view there is going to be a separation of the ‘wheat from the chaff’ as regards the implementation of section 10 of the children first act 2015 by sports clubs, charities and voluntary organisations in Ireland today.

Many and, if not most, sports clubs, charities, and voluntary organisations will probably continue to keep their corporate heads firmly embedded in the sands.

But for organisations headed by management and boards of directors who understand the implication of section 10 of these children first act 2015, the future is different.

By accepting and indeed embracing section 10, these organisations deliberately set themselves apart from the chasing pack of sports clubs, charities, and voluntary organisations operating in the same sector as themselves.

How so?

Let’s take the choice between two apparently similar voluntary organisations working with children.

Let's assume that one of the two organisations places a far higher degree of importance on the welfare of children than does the other organization.

Over time, the organization that prioritises the safeguarding and welfare of children will win more funding, more volunteers, more fans and, ultimately, serve more powerfully and effectively the interests of children than the other organisation that fails to prioritise the implementation of section 10 of the Children First Act 2015.

S.10 CHILDREN FIRST & ITS COUNTERPART IN THE NATIONAL VETTING BUREAU ACT 2012

Reflecting on the importance of section 10 of the children’s first act 2015, I immediately also think of another key piece of Irish legislation, namely the National Vetting Bureau Act 2012. In that act, there is one section that is, to my mind at least, has a similarly ground-breaking impact to like section 10 in the Children First Act 2015.

PERSONAL CRIMINAL LIABILITIES FOR DIRECTORS & OFFICERS

Section 28 of the National Vetting Bureau Act creates personal criminal liabilities for the directors and officers of organisations that are required to carry out criminal background checks on volunteers in Ireland, in circumstances where the body corporate (club/charity/voluntary organization) of which the directors and officers belong to, have failed to comply with the vetting legislation.

Both section 10 Children First Act 2015 and section 28 National Vetting Bureau Act 2012 are game-changers in my view.

We will come back again to section 10 Children First Act 2015 again, but I hope you will be able to join me in our next essay, where we look at the personal criminal liabilities falling on the shoulders of Directors and Officers of voluntary organisations, where their club / charity / voluntary organization breaches the National Vetting Bureau Ac; with a particular focus on section 28. 

In the meantime, let me ask you this: when it comes to safeguarding children, is your sports club, charity or voluntary organization part of the wheat, or part of the chaff?