New law discriminates and victimises children

Emily Logan talks to Emma Browne about how the Irish Government has failed children by rushing through legislation that discriminates between girls and boys and that allows child victims of abuse to be cross-examined in court

The Ombudsman for Children, Emily Logan, has condemned the recent child sexual offence legislation brought in by Government on 2 June in response to the child rape "crisis". She detailed the areas of particular concern to the Minister for Children, Brian Lenihan. These are: the discrimination between boys and girls – under the legislation a girl under the age of 17 cannot be prosecuted for a sexual offence; and the situation whereby child victims may be cross-examined in court in relation to the defence of reasonable mistake.

The new legislation contravenes Article 2 of the UN Convention on the Rights of the Child which has a principle of non-discrimination. According to Emily Logan this means that all new legislation must be gender neutral. In Section 5 of the Criminal Law Sexual Offences Act 2006 it says that a female under 17 years of age cannot be guilty of offences under this act. Emily Logan says: "We now have legislation that states that girls will not be prosecuted and, while I understand some of the rationale that's been given for that, I'm not hearing any rationale for why we are not protecting young men. That doesn't make sense."

Emily Logan is also concerned that child victims will potentially be cross-examined in order to dismiss or establish a defence of reasonable mistake. She says this is a "re-victimisation" of the child.

Emily Logan says that her office received a copy of the legislation at 5pm and had to have it returned to the Government before 9.30am. There was "very little time for consultation or advice and proper discussion and that's not how we should be bringing in legislation to protect children... You rush legislation through and the reality is children get lost in the process."

In an interview with Village magazine on the 12 June Emily Logan also criticised the review of child protection guidelines – Children First – announced by the Government in October 2005 in the aftermath the Ferns report. She said: "I would feel cautious about that. I would like to see what exactly that means. I don't think we're asking the right questions – we are not asking the right people the right questions. Why are they not asking children what their experience is? Why are they not asking their parents their family? We are not seeing the tough elements of that targeted. There is incredible underreporting [of child sexual abuse] and that will continue unless we challenge that."

The ombudsman also said that the Minster for Children, Brian Lenihan, is considering making an order to allow her office to investigate complaints relating to children detained in adult institutions. Under the Ombudsman for Children Act 2002 the office cannot investigate such complaints.

Emily Logan raised these issues when she appeared before the UN Committee on Children's Rights on 7 June. In a damning presentation the ombudsman outlined several ways in which Ireland is failing children:

• The expansion of Garda vetting for all organisations working with children has been "too slow".

• The Government has failed to ban corporal punishment in the family, despite a recommendation from the committee in 1998 to do so, and by not doing so Ireland is in violation of the European Social Charter.

• The Government has failed to adequately provide for the education of children with special needs.

• Children with mental health problems are sometimes accommodated in adult psychiatric institutions.

• There is no constitutional protection for children.

• Ireland has a high level of child poverty – 14.6 per cent of children in Ireland were living in poverty in 2003; 23.9 per cent were "at risk" of poverty. One in three children in disadvantaged areas experience literacy problems.

• The service for separated children seeking asylum is "unacceptable" and by not providing adequate services for these children Ireland is in contravention of the UN Convention on the Rights of the Child and the European Convention on Human Rights.