The world will not be destroyed by those who do evil, but by those who watch them without doing anything” –Albert Einstein
What happened to ‘Grace’?
by Linda Gibbons
Described ‘as the most savage rape, physical abuse and neglect ever to emerge, the case of Grace and the foster care scandal has deeply shocked the nation. The reports by the Irish Examiner over the past few weeks, have given an insight into the appalling abuse endured by this young girl who was largely forgotten by the State.
Grace who is “unable to speak and with a profound intellectual disability,” was an exceptionally vulnerable child when referred to the State for care at 11 years of age. However, it was not Grace’s inability to speak that really silenced her, but rather the inaction by the State that muted her for 20 years. Inexcusably despite the State being alerted to the abuse allegations in 1989, and indirectly acknowledging them in 1995 by ceasing to send any more children to the home, it took another 14 years before Grace was removed.
Equally for the 47 children previously placed there and for those who remained there, the State continued to ignore their vulnerability, with a child reportedly still in their care as recently as 2013.
Why didn’t the HSE intervene as per their statutory duties?
The Irish Independent has reported that the HSE tried to remove Grace in 1995 but once appealed by the foster family, the need for intervention appears to have been disregarded until the actions of several whistle-blowers ensured Grace’s removal in 2009.
What stopped the HSE disregarding their appeal and removing Grace immediately has not been clarified. However, the Director of the HSE, Tony O’Brien’s recent response that “it is not clear if the HSE has a legal capacity to take such action,” illustrates the failures that have surrounded this case.
Such a response fails to instil confidence in the State’s ability to act as the nation’s parent. It also raises several legal questions that demand urgent clarification.
- Firstly, does the law impose different legal standards for the State as a parent than for the natural parent?
- Does the legislation that protects the child from enduring such abuse in the family home not protect the child in the same way if the abuse happens in a State funded home?
- Does the Child Care Act, 1991 not obligate the State to intervene and remove children when they are satisfied that the child “has been or is being assaulted, ill-treated, neglected or sexually abused” when the child is already under the responsibility of the State?
- Does the Constitution under article 42A obligate the State to act as the “common guardian of good and to protect children” above all else?
This also raises doubts as to the effectiveness of existing legislation such as the recent Children’s First Act 2015 if those in power don’t know what to do when given reports of abuse outside the family home. As Fergus Finlay accurately states, such legislation is “insulting and meaningless” if it doesn’t serve to protect our most vulnerable citizens.
What has been the HSE’s response – another apology and inquiry?
Since Grace was removed, the efforts by the State to make restitution have included an apology and the promise of yet another inquiry. The initial claim by the Director of the HSE, Tony O’Brien that Grace’s family had already received an apology has been rebutted, forcing him to admit that his original information was “misleading.” While the Minister for Health, Leo Varadkar has advised that a statutory inquiry will be conducted to ensure that the State learns from these failings, this does not instil much confidence given the experience of previous inquiries such as the Ryan Report; which have served to demonstrate that unless it is accompanied by measurable action, an inquiry in itself will not offer increased protection for children in State care.
Where is the justice for Grace-criminally or disciplinary?
Indefensibly for Grace, those who perpetrated the abuse will never be brought to justice as her disability rendered her “not a good witness.” Currently the Criminal Evidence Act 1992 will only allow those with intellectual disabilities who are deemed “capable of giving an intelligible account of the events…” act as witnesses in court.
Further adding to this dysfunction is the report by the Irish Independent that the professionals who allowed this abuse to remain un-investigated, have never been sanctioned for their failures and some are now “working for the State’s child protection agency.” If this is correct it is simply unacceptable and raises serious doubts as to the integrity of those people still tasked with child protection.
What needs to be done to maximise the safeguarding of children in State care?
With a new government to be elected into power, this must be seen as a chance to make real, tangible reforms to our child protection system and processes.
These changes should include the introduction of legislation governing state funded care homes to incorporate stronger accountability on the State as the national parent. This should ensure that the same legal duty of the state to intervene in the family home is also in place in state funded homes.
Perhaps it is also now time for the State to review the Criminal Evidence Act 1992 with a view to considering the option of permitting a third party to present evidence for those with severe intellectual disabilities in such cases of alleged abuse.
Furthermore, a review of the Children’s First Act 2015 should be considered with a view to enacting a system similar to that found in Newfoundland and Labrador in Canada which have enacted both civil and criminal penalties for failure to report child abuse. Although those working with children have a legal obligation to report abuse, there are currently no sanctions for failure to comply. This has led to criticism from leading children’s groups including Barnardo’s and the Children’s Rights Alliance.
It is also high time that the State invests appropriately in the provision of more qualified social workers to care for the needs of children in the care of the State; recent statistics state that “6,411 cases of suspected child neglect or abuse are awaiting allocation of a social worker, of whom 1,351 are ‘high priority” – this is unacceptable and if not tackled will likely result in more tragic cases.
As a nation it is time to demand that our watch keepers protect the country’s most vulnerable children, in the name of Grace and every other child let down by the State.