The Children First Act 2015 was fully commenced in December 2017. The Act (available on www.irishstatutebook.ie) places a legal obligation on mandated persons to report child protection concerns at or above a defined threshold to Tusla – the Child and Family Agency. Mandated persons are people who have contact with children and/or families and who, because of their qualifications, training and/or employment role, are in a key position to help protect children from harm. GPs are mandated persons. GPs have two main legal obligations under the Act:

• To report the harm of children above a defined threshold to Tusla
• To assist Tusla, if requested, in assessing a concern which has been the subject of a mandated report (mandated assistance).

The Children First: National Guidance for the Protection and Welfare of Children 2017, the most recent version of this guidance document (see www.tusla.ie/publications) is intended to assist people in recognising child abuse and neglect, and in reporting reasonable concerns to Tusla. It also sets out the statutory responsibilities for mandated persons and organisations under the Children First Act.

Chapter 1 of the guidance is intended to be read by all people who come into contact with children. It states that a person should always inform Tusla when they have reasonable grounds for concern that a child may have been, is being, or is at risk of being abused or neglected. It is not necessary for a person to prove that abuse has occurred to report a concern to Tusla. All that is required is that you have reasonable grounds for concern. It is Tusla’s role to assess concerns that are reported to it.

Chapter 3 outlines the legal obligations that have been placed on mandated persons by the Children First Act 2015. GPs should read this chapter of the guidance for details about your responsibilities under the Act for reporting mandated concerns and how to make the report. 

Legal obligations

As a mandated person, under the legislation you are required to report any knowledge, belief or reasonable suspicion that a child has been harmed, is being harmed, or is at risk of being harmed. The Act defines harm as assault, ill-treatment, neglect or sexual abuse, and covers single and multiple instances. The four types of abuse outlined in the guidance are neglect, emotional abuse, physical abuse and sexual abuse.

The guidance states that the threshold of harm, at which you must report to Tusla under the Children First Act, is reached when you know, believe or have reasonable grounds to suspect that a child has been, is being, or is at risk of being ill-treated to the point where the child’s health, development or welfare have been or are being seriously affected, or are likely to be seriously affected.

If you have a concern about a child but are in doubt about whether your concern reaches the legal definition of harm for making a mandated report, Tusla can provide advice in this regard. You can find details of who to contact to discuss your concern on the Tusla website (www.tusla.ie). If your concern does not reach the threshold for mandated reporting, but you feel it is a reasonable concern about the welfare or protection of a child, you should report it to Tusla under this guidance.

Retrospective allegations

The reporting requirements under the Children First Act apply only to information that you, as a mandated person, received or became aware of since the Act came into force, whether the harm occurred before or after that point. However, if you have a reasonable concern about past abuse, where information came to your attention before the Act and there is a possible continuing risk to children, you should report it to Tusla under this guidance. 

If you as a GP receive a disclosure from a patient that they were abused as a child, you should report this to Tusla, as the alleged abuser may pose a current risk to children. 

Sexual abuse

As all sexual abuse falls within the category of seriously affecting a child’s health, welfare or development, you must submit all concerns about sexual abuse as a mandated report to Tusla. There is one exception, which deals with certain consensual sexual activity between teenagers.

Under the Criminal Law (Sexual Offences) Act 2006 the legal age of consent is 17 years. While a sexual relationship where one or both parties is under 17 years of age is illegal, when making a mandated report to Tusla, it might not be regarded as child sexual abuse. 

There are some exemptions from reporting underage consensual sexual activity under section 14(3) of the Children First Act 2015. If you are satisfied that all of the following criteria are met, you are not required to make a report to Tusla: 

• The young person(s) concerned are between 15 and 17 years old 
• The age difference between them is not more than 24 months 
• There is no material difference in their maturity or capacity to consent 
• The relationship between the people engaged in the sexual activity does not involve intimidation or exploitation of either person 
• The young persons concerned state clearly that they do not want any information about the activity to be disclosed to Tusla.

In effect, this means that if all of the above criteria are met, you as a mandated person do not have to report consensual sexual activity between older teenagers as sexual abuse to Tusla. 

Concerns that arise outside of professional duties

The legal obligation to report under the Act applies only to information that you acquire in the course of your professional work or employment. It does not apply to information you acquire outside your work, or information given to you on the basis of a personal rather than a professional relationship. While the legal obligation to report only arises for employment or professional duties, you should comply with the requirement of this guidance to report all reasonable concerns to Tusla.

How to report

Section 14 of the Children First Act 2015 requires mandated persons to report a mandated concern to Tusla “as soon as practicable”. You should submit a report to Tusla using the report form, which is available on www.tusla.ie If you feel the concern may require urgent intervention to make the child safe, section 14(7) of the Act allows you to alert Tusla of the concern in advance of submitting a written report. You must then submit a mandated report to Tusla on the report form within three days. If you think the child is in immediate danger and you cannot contact Tusla, you should contact the Gardaí.

Informing the family

The Children First Act does not require you to inform the family that a report under the legislation is being made to Tusla. However, it is good practice to tell the family that a report is being made unless doing so would: 

• Place the child at further risk 
• Impair Tusla’s ability to carry out a risk assessment.

Failure to make a report

The new Act does not impose criminal sanctions on mandated persons who fail to make a report to Tusla. However, there are a number of administrative actions that Tusla could take if, after an investigation, it emerges that you did not make a mandated report and a child was subsequently left at risk or harmed. Tusla may: 

• Make a complaint to the Fitness to Practise Committee of the Irish Medical Council
• Pass information about your failure to make a report to the National Vetting Bureau of An Garda Síochána. This information could therefore be disclosed to your current or future employers when you are next vetted.

Mandated assistance

All mandated persons can be asked by Tusla to provide any necessary and proportionate assistance to aid Tusla in assessing the risk to a child arising from a mandated report. You must comply with this request, regardless of who made the report. Mandated assistance may include a request to supply further information over the phone, produce a verbal or written report or attend a meeting.

The Data Protection Acts of 1988 and 2003 do not prevent the sharing of information on a reasonable and proportionate basis for the purposes of child protection. Section 17 of the Children First Act makes it an offence for you to disclose information to a third party which has been shared by Tusla during the course of an assessment, unless Tusla has given you written authorisation to do so. If you are required to share information with Tusla when assisting in the assessment of risk to a child, you are protected from civil liability.

Other relevant legislation

Child Care Act 1991

Under this Act, Tusla has a statutory responsibility to promote the welfare of children who are not receiving adequate care and protection

Protections for Persons Reporting Child Abuse Act 1998

This Act protects you if you make a report of suspected child abuse to designated officers of Tusla, the HSE or to members of the Gardaí as long as the report is made in good faith and is not malicious. This legal protection means that even if you report a case of suspected child abuse and it proves unfounded, a plaintiff who took an action would have to prove that you had not acted reasonably and in good faith in making the report. If you make a report in good faith and in the child’s best interests, you may also be protected under common law by the defence of qualified privilege.

Criminal Justice Act 2006 

Section 176 of this Act created an offence of reckless endangerment of children. This offence may be committed by a person who has authority or control over a child or abuser who intentionally or recklessly endangers a child by: 

• Causing or permitting the child to be placed or left in a situation that creates a substantial risk to the child of being a victim of serious harm or sexual abuse
• Failing to take reasonable steps to protect a child from such a risk while knowing that the child is in such a situation.

Criminal Justice (Withholding of information on offences against children and vulnerable persons) Act 2012 

Under this Act, it is a criminal offence to withhold information about a serious offence, including a sexual offence, against a person under 18 years or a vulnerable person.