Vetting (2024) PDF

Vetting and Spent Convictions Early Child Care 3 Community Youth Work 4 Social Care 2  Principles underpinning ‘Vetting’ Children, young people and vulnerable adults are entitled to protection from harm. Persons who may have committed crimes, or are before t...

Vetting and Spent Convictions Early Child Care 3 Community Youth Work 4 Social Care 2  Principles underpinning ‘Vetting’ Children, young people and vulnerable adults are entitled to protection from harm. Persons who may have committed crimes, or are before the courts, should be treated with fairness and confidentiality. Social inclusion recognises the role of education in the re-integration of offenders into society through education/employment opportunities. The seriousness of the offence and its relevance with reference to the educational course/employment applied for must be considered. Each organisation must adopt its own policy and standards in relation to child protection. Prior to the commencement of the Act NON STATUTORY VETTING  Vetting Prior to the commencement of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012) there was no general legal/statutory requirement that employees working in areas such as youth work, social care, teaching etc must have clearance from the Gardai.  Exceptions Section 26 of the Sex Offenders Act 200 1 makes it an offence for a sex offender to "apply for work or to perform a service (including State work or service) which involves having unsupervised access to, or contact with children or mentally impaired people without telling the prospective employer or contractor that you are a sex offender".  Exceptions The legal obligation to obtain a vetting disclosure has been extended to employees covered by the Private Security Services Act 2004 (for example, bouncers, nightclub security staff, etc.) and applicants for taxi licences. The Child Care (Special Care) Regulations 2004 , the Child Care (Placement of Children in Foster C are) Regulations 1995 and the Child Care (Placement of Children with Relati ves) Regulations 1995 provided for the vetting of those involved in  Child Care (Pre-School Services) (No 2) Regulations 2006 8(2) A person carrying on a pre-school service shall ensure appropriate vetting of all staff, students and volunteers who have access to a child – (a) by reference to past employer references in particular the most recent employer reference, in respect of all staff , and (b) by reference to references from reputable sources, in respect of all students and volunteers, and  Management and Staffing Article 8(2) continued (c) by acquiring Garda vetting from An Garda Síochána when An Garda Síochána have set down procedures to make such vetting available, and (d) in circumstances where Garda vetting is not available for staff, students and volunteers who have lived outside the jurisdiction, by ensuring that these persons provide the necessary police vetting from other police authorities. (3) Such vetting procedures shall be carried out prior to any person being appointed or assigned or being allowed access to a child in the pre-school service.  CHILD CARE ACT 1991 (EARLY YEARS SERVICES) REGULATIONS 2016 9(2) A registered provider shall ensure that each employee, unpaid worker and contractor is suitable and competent taking into consideration the nature of the needs of children, including by- (c) consideration of the vetting disclosure received from the National Vetting Bureau of the Garda Síochána in accordance with the Act of 2012 in respect of the person, and (d) ensuring, insofar as is practicable, that where a person has lived in a state other than the State for a period of longer than 6 consecutive months, he or she provides police vetting from the police authorities in that state. (3) The procedures specified in paragraph (2) shall be carried out prior to any person being appointed, assigned or allowed access to or contact with a child attending the pre-school service  What happened prior to the introduction of the Act? Registered organisations who employed individuals or engaged volunteers who had access to children or vulnerable people submitted requests to the Garda Central Vetting Unit on a voluntary basis. DISCUSSION AROUND THE INTRODUCTION OF STATUTORY VETTING  The Constitutional Referendum on the rights of the Child Recall the issues raised when looking at the rights of the child under Irish law. The original Government’s wording would have provided amongst other matters for: ‘Legal authority for the collection and exchange of information relating to the risk or actual occurrence of child sexual abuse.’ Not included in the Thirty-First Amendment of the Constitution November 2012  JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN INTERIM REPORT September 2008 Unanimous Recommendations to establish a statutory scheme: (a) for the vetting of all persons involved in working in any capacity with children; (b) for the statutory regulation of the manner in which information in relation to records of criminal prosecutions, criminal convictions and ‘soft’ information may be collated, exchanged and deployed by An Garda Siochana or other Statutory Agencies for the purpose of ensuring the highest standards of child protection within the State; and  Unanimous Recommendations continued (c) to require that all agencies, organisations, bodies, clubs, educational and childcare establishments and groups working with or involved with children ensure that all of those working under their aegis either in a paid or voluntary capacity with children are subject to vetting. 2. The Committee recommends that the proposed legislation should have due regard for the protection of the constitutional rights of any persons who may be affected by this proposed law reform. 3. The Committee recommends that the Government direct that the relevant legislation be prepared for early consideration by the Houses of the Oireachtas in the parliamentary session commencing 24 September 2008 and ending prior to Christmas 2008. NATIONAL GARDA VETTING BUREAU (CHILDREN AND VULNERABLE PERSONS) ACTS 2012- 2016 National Vetting Bureau Act 2012 Scheme for the Bill published in July 2011 National Vetting Bureau (Children and Vulnerable Persons) Bill 2012 published 18th July 2012 National Vetting Bureau (Children and Vulnerable Persons) Act 2012, signed by the President 26th December 2012 The Act was commenced on the 29th April 2016, alongside the Criminal Justice (Spent Convictions) Act 2016.  National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 This Act is one of a group of Acts included in this collective citation, to be construed together as one ( Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (4/2016), part 3). The Acts in this group are: National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (47/2012) Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (4/2016), part 3  National Vetting Bureau Act 2012 The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 introduces compulsory vetting of employees and volunteers for the first time in Ireland, establishes the procedures for vetting such employees by an Garda Siochana and the sanctions for failing to properly vet employees.  National Vetting Bureau Act 2012 Purpose of Act The purpose of this Act is to provide a legislative basis for the vetting of persons who seek positions of employment relating to children or vulnerable persons.  National Vetting Bureau Act 2012 Part 1- General and Preliminary Part 2- National Vetting Bureau Database System Part 3- Procedures for Vetting Disclosures Part 4- Miscellaneous Schedule 1 – Part 1- Relevant Work or Activities relating to children – Part 2- Relevant Work or Activities relating to Vulnerable Adults Schedule 2- Organisations required to notify specified information to Bureau  Definitions “harm ”, in relation to a person, means exploitation or abuse, whether physical, sexual or emotional of the person  Definitions continued specified information”, in relation to a person who is the subject of an application for vetting disclosure, means information concerning a finding or allegation of harm to another person that is received by the Bureau from— (a) the Garda Síochána pursuant to an investigation of an offence or pursuant to any other function conferred on the Garda Síochána by or under any enactment or the common law, or  Definitions continued in respect of the person and which is of such a nature as to reasonably give rise to a bona fide concern that the person may— (i) harm any child or vulnerable person, (ii) cause any child or vulnerable person to be harmed, (iii) put any child or vulnerable person at risk of harm, (iv) attempt to harm any child or vulnerable person, or (v) incite another person to harm any child or vulnerable person;  ‘Relevant Organisations’ “relevant organisation” means a person (including a body corporate or an unincorporated body of persons)— (a) who— (i) employs (whether under contract of employment or otherwise) any person to undertake relevant work or activities, (ii) enters into a contract for services with any person for the provision by that person of services that constitute relevant work or activities,  Relevant Organisations (iii) permits any person (whether or not for commercial or any other consideration) to undertake relevant work or activities on the person’s behalf (iv) is a provider of courses of education or training, including internship schemes, for persons and, as part of such education or training or scheme, places or makes arrangements for the placement of any person in work experience or activities where a necessary part of the placement involves participation in relevant work or activities,  Relevant Organisations but does not include an individual who does any of the matters referred to in subparagraphs (i) to (iv) in the course of a private arrangement, (b) who carries on the business of an employment agency within the meaning of the Employment Agency Act 1971 for the employment of persons to undertake relevant work or activities, (c) established by or under an enactment (other than the Companies Acts) whose functions include the regulation, registration, licensing or other authorisation (howsoever described) of persons who undertake relevant work or activities, or (d) who represents for the purposes of the vetting procedures under this Act, another person, trade, profession or body, organisation or group or other body of persons that undertakes relevant work or activities  Vulnerable Person vulnerable person” means a person, other than a child, who— ( a) is suffering from a disorder of the mind, whether as a result of mental illness or dementia, ( b) has an intellectual disability, ( c) is suffering from a physical impairment, whether as a result of injury, illness or age, or ( d) has a physical disability, which is of such a nature or degree— – (i) as to restrict the capacity of the person to guard himself or herself against harm by another person, or – (ii) that results in the person requiring assistance with the activities of daily living including dressing, eating, walking, washing and bathing.  National Vetting Bureau Act 2012 Who is affected and how? Under the Act, relevant organisations which permit or arrange for any person to undertake work with children or vulnerable persons shall not be permitted to employ or engage such persons unless the organisation has received a vetting disclosure from the Garda Vetting Bureau. The legislation applies to a wide range of organisations including commercial entities, voluntary bodies, sporting organisations and organisations in the health sector. The legislation does not apply to individuals who provide occasional assistance on a voluntary basis at community and sporting events.  National Vetting Bureau Act 2012 It will be an offence for a person to fail to comply with the duty to properly vet individuals engaged to perform relevant work or activities relating to children, however it will be a defence for a person to show that he or she did not know, or could not have been expected to know that the work or activity in which the person was engaged constituted relevant work or  Prosecutions? Children’s care home operator faces ‘fa lsified’ Garda vetting process Being prosecuted under the Child Care (Standards in Children's Residential Centres) regulations and the Child Care Act 1991, as amended.  Requirements on relevant organisations All relevant organisations must be registered with the Garda Vetting Bureau Office. The organisation must also nominate a “liaison person” who is responsible for co-ordinating the organisation’s vetting applications and that person themselves must be the subject of a vetting disclosure from the Bureau. The Bureau may refuse to register a person as a liaison person if it considers them to be unsuitable as a result of the vetting process. The organisation will then be obliged to vet all of its future employees who work with children or vulnerable persons prior to commencing employment. They are also responsible for re- vetting employees, volunteers etc.  The Vetting Application Persons who are subject to Garda Vetting will receive a Vetting Application Form (including electronic form) from the relevant organisation where they are seeking a position. The applicant completes the application form and returns it to the relevant organisation. He or she must sign the form, thereby providing authorisation for the Garda Vetting process.  The Vetting Application Following the receipt of an application for a vetting disclosure by a liaison person the Bureau will undertake an examination of its own database, Garda Síochána records and Scheduled Organisations, as it deems necessary, to establish whether it holds 1, any criminal records or 2, any “specified information” relating to the applicant.  Disclosure to Relevant Organisation A vetting disclosure shall include particulars of the criminal record (if any) relating to the person, and a statement of the specified information (if any) relating to the person or a statement that there is no criminal record or specified information, in relation to the person. A criminal record in relation to a person means a record of the person’s convictions whether within or outside the state for any criminal offence together with any ancillary or consequential orders made pursuant to the convictions concerned or a record of any prosecutions pending against the person whether within or outside the state for any criminal offences or both. A person shall not be obliged to provide details of any convictions to which Section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 applies.  Spent Convictions A ‘spent conviction’ is a conviction that no longer has to be disclosed. The following convictions become spent after 7 years: All convictions in the District Court for motoring offences except for convictions for dangerous driving which are limited to a single conviction. All convictions in the District Court for minor public order offences. A single conviction (other than a motoring or public order offence) in the District Court which resulted in a term of prison term of 12 months or less (or a fine). These convictions become spent 7 years from the date the sentence became operative, as long as you have complied with the sentence or order imposed.  Specified Information Specified information is information acquired during an investigation or inquiry by the Garda Síochána or a specified organisation (including the HSE, the Teaching Council, the Medical Council and HIQA) that gives rise to a bona fide concern that a person may harm a child or vulnerable person.  Organisations Required to Notify Specified Information to Bureau Organisations which are obliged to notify specified information to the Bureau include the Health Service Executive ("HSE"), "Tusla", The Health and Social Care Professionals Council, the Teaching Council and other professional bodies. Such information could arise following investigations by the HSE or Tusla into alleged child abuse or neglect, or as part of fitness to practise inquiries, where the investigations have concluded that a person poses a threat to children or vulnerable persons. A person can appeal against a decision to disclose specified information prior to its disclosure  Notification of Specified Information Where the Bureau considers that it has ‘specified information’ concerning a vetting subject the matter will be referred to the Chief Bureau Officer for assessment as to whether the information should be disclosed. The Chief Bureau Officer will notify the vetting subject of the referral, provide a summary of the specified information, and inform him or her of their right to make written submissions in relation to the information.  Submission by Vetting Subject On receiving this notification the vetting subject may make a submission in writing to the Chief Bureau Officer concerning the information, not later than 14 days, from the date of notification, or a longer period if the Chief Bureau Officer specifies.  Determination on whether to disclose ‘specified information’ When the Chief Bureau Officer is making a determination as to whether the specified information should be disclosed, he or she must reasonably believe that the information is of such a nature as to give rise to a bona fide concern that the vetting subject may harm, attempt to harm or put at risk of harm, a child or vulnerable person. THE GVB must be satisfied that the disclosure of this information is necessary, proportionate and reasonable in the circumstances for the protection of children or vulnerable persons.  Making a determination When the Chief Bureau Officer has made a determination that specified information should be disclosed, he or she shall – notify the vetting subject in writing of the determination and the reasons for it, – provide a copy of the specified information proposed to be disclosed, – notify the vetting subject of the intention to disclose the specified information to a liaison person for the relevant organisation concerned after the expiry of 14 days, and – inform the vetting subject that he or she may appeal the determination to an appeals officer not later than 14 days, or such longer period as the appeals officer may determine, after the date of the notification is sent to the vetting subject.  Making a determination In making a determination, the Chief Bureau Officer must take a number of matters into account, including the relevance of the type of work concerned, and the rights of the applicant. Section 15 (4) (a)-(g) of the Act outlines the areas the Chief Bureau Officer shall have regard to in making a determination.  Making a determination 15(4)(a) the information concerned, (b) its relevance to the type of relevant work or activity to which the application for vetting disclosure concerned relates, (c) the extent to which the proposed relevant work or activity is likely to necessitate contact with children or vulnerable persons or both, and the nature of that contact, (d) the source and reliability of the information,  Making a determination (e) any submissions made by or on behalf of the person under this section or pursuant to an investigation or other process referred to in subsection (1) or (2) of section 19 or otherwise, (f) whether the rights of the person have been considered and taken account of in a manner that is consistent with fairness and natural justice, and (g) any other matter which the Chief Bureau Officer considers relevant to the application for vetting disclosure concerned.  Making a determination The Chief Bureau Officer can make any further enquiries necessary from An Garda Síochána or a Scheduled Organisation, to assist in making a determination.  Making a determination It is important to note that the National Vetting Bureau will not make any disclosure in relation to the vetting subject until the 14 days allowed for the making of an appeal has elapsed, or where an appeal is lodged, until the determination or withdrawal of the appeal.  Relevant organisation and disclosure to employee Where an employer receives a vetting disclosure containing details of criminal records or specified information it must provide a copy of the disclosure to the vetting subject. The organisation may then take the disclosed information into account when assessing the person’s suitability to work in that particular role. Is the employer precluded from hiring the person on the basis that they have a criminal record/ specified information? No! It is up to the employer to make a decision on whether to hire a person who has a criminal record and/or specified information on their record. This information should be balanced against the type of crime/ specified information, length of time that has passed, the level of contact with children/ vulnerable persons etc.  Fair procedures in decision making processes Art 40 of the Constitution- ‘personal rights’ All persons/ bodies making a decision that affects your constitutional rights must treat you fairly. Natural justice or due process rights for a person subject to an inquiry/ decision making process include providing the details of the allegation against them, a right to respond to such allegations, advance notice of questions they might be asked; a right to an oral hearing; a guarantee of legal representation; an ability to cross- examine and a right to appeal the decision/ finding. The extent of the rights afforded depend on the context, and on the extent to which the affected person’s reputational or other rights are potentially at risk. These rights must also be balanced against the competing rights of others, for example children and vulnerable adults in the context of child protection and vetting.  M.Q. v Gleeson, City of Dublin VEC, Chance and the EHB High Court 13th February 1997 1. The leading authority on the exclusion of a student/prospective student from an academic course on the basis that the person involved may constitute a risk to the group that a successful graduate of such a course may eventually work with is the decision in M.Q. v Gleeson, City of Dublin VEC, Chance and the EHB High Court 13th February 1997. 2. The core finding that arose from that High Court ruling is the requirement to apply fair and transparent procedures to the making of such a decision. 3. The issue of ‘soft information’, the role of the HSE and the passing on and use of such information  ‘Specified Information’ Inclusion of ‘specified-information’ as well as hard information in the vetting process; ‘soft information’ includes details of child abuse charges or allegations which never went any further or previous employment history highlighting issues about the suitability of a person to be around children or vulnerable adults The significance of the source of such information, such as the HSE  Vetting: Specified information and notification M.P. v Teaching Council of Ireland, IEHC 102 (2019) https://courtsnewsireland.ie/teacher-fails-bid-stop-notif ication-relationship-student/2019/02/26/ https://www.legal-island.ie/articles/ire/features/labour-s uperior-court-review/2019/july/notification-of-concern-t o-national-vetting-bureau-balance-of-rights/ Under S.19 of the NV Act, prior to a scheduled organisation notifying the Garda Vetting Bureau that they have specified information on a person, they must inform the subject of its intention to notify the Bureau of a concern. Thus the subject is on notice before any possible future vetting disclosure can take place for a potential  Issues regarding the disclosure of Specified Information Firstly, a subject can only challenge the potential disclosure of the specified information when a vetting application has been made by a prospective employer. Therefore, if the subject fails in challenging the disclosure of specified information by the Bureau, an adverse disclosure is likely to follow which is likely to damage his or her employment prospects. Secondly, the Act is silent as to how long the specified information may be retained for by the Bureau and disclosed to potential employers. If there is no time limit, its disclosure may damage the subject’s employment prospects in the long term.  Implications for employers Where employers are affected by this legislation they should make it clear to prospective job applicants that their application is subject to vetting by the National Vetting Bureau. The requirement to vet employees will continue on an on-going basis and there will be a requirement to vet employees again after a period of time which will be specified by the Minister for Justice in due course. Employment contracts and staff handbooks should reflect the fact that an employee’s position may be subject to future vetting by their employer and that their continued employment may be affected by information disclosed as part of future vetting applications.  Re-Vetting Section 20 of the Act relates to re-vetting of employees (and other workers) who were previously vetted for their current position, after a certain length of time (known as a specified period). Currently, there is no legal requirement for someone who is vetted once to be re-vetted, unless they move job. The Minister can bring in regulations relating to time periods.  Re-Vetting- Early Year’s Regulation 9(3) of the Child Care Act 1991 (Early Years Services) Regulations 2016 says that all employees, unpaid workers and contractors in an early years service are required to have Garda vetting disclosure/Police vetting prior to being appointed or assigned or being allowed access to children. The Early Years Inspectorate's Quality and Regulatory Framework (QRF) recommends that it is good practice for everyone working in an Early Years Service be re-vetted every 36 months. The Early Years Inspectorate has made it a requirement that services going through the renewal of registration process must evidence that relevant staff members have vetting dated within the last 36 months. See https://www.tusla.ie/uploads/content/CSR-GDE14.13_Vetting_G uidance_for_providers_of_Early_Years_Services_compressed_.pdf Reasons for the delay in commencing the Act A 2013 UK Court of Appeal judgment necessitated a review of the disclosure provisions in both the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and in the Spent Convictions Bill. See powerpoint on spent convictions legislation  Problems with the Act? Re-vetting within organisations People being vetted a number of times a year due to work, community involvement etc (is transferable vetting required?) Delays in vetting due to under- resourced GVB (although this seems to be resolved- average time for vetting is around one week).  Reform required? Garda Vetting Review Group appointed to examine the Garda vetting regime in 2021. Group comprises representatives from the Department of Justice, the Garda National Vetting Bureau, Tusla, the Public Appointments Service, the Department of Education, the HSE and the Department of Children, Equality, Disability, Integration and Youth. Minister McEntee moves to reform vetting arrangements and legislatio n - The Department of Justice Recommendations for reform of garda vetting pushed back due to 'complex' nature of revie w (thejournal.ie)  Garda Vetting Review Group The review is focused on two main areas. The first is the introduction of a system for revetting. This will require primary legislation. The second is a review of the approach to vetting for specific employments with a view to linking vetting to the specific work of the employer or the work the employer is likely to give to the employee. An Garda Síochána – Thursday, 20 Jun 2024 – Parlia mentary Questions (33rd Dáil) – Houses of the Oireachtas The Group has yet to submit their final report. (Nov 2024)