It is essential that those people who work in any capacity with children are, as far as possible, assessed to ensure that they do not present a risk to children. Standard 1 (1.2) provides the required standard of practice in relation to recruitment and selection. It also provides a checklist for engaging proper procedures when taking on staff and volunteers who will be working with children.
One part of the recruitment process is to screen applicants against police criminal conviction and caution records. This screening process – called vetting – includes a check in the Republic of Ireland, against An Garda Síochána records.
The relevant form is available at S4.1, together with the recruitment checklist.
This document sets out the relevant legislation, and it provides guidance on who should be vetted and on the procedures that apply in both the Republic of Ireland.
2. VETTING IN THE REPUBLIC OF IRELAND (ROI)
2.1 Legislative basis
In the ROI, vetting is carried out through the National Vetting Bureau, under the National Vetting Bureau (Children and Vulnerable Adults) Act 2012. From the date of commencement of the legislation on 29 April 2016, it is a criminal offence to allow anyone to engage in ministry with children or vulnerable adults, without having them vetted first.
In addition, Section 26 of the Sex Offenders Act 2001 means that it is a criminal offence for some people who are guilty of certain criminal offences to fail to notify their employers of this fact before taking a job or performing a service. It is a requirement under this legislation for a prospective employee or volunteer to inform the employer of offences committed in Ireland and abroad.
Section 26 of the Sex Offenders Act 2001 makes it an offence for a person to:
- Apply to be employed to do relevant work;
- Enter into a contract of employment to do relevant work;
- Apply to another person to do relevant work on that other person’s behalf (either paid or voluntary);
- Enter into a contract of services to do relevant work without, during the course of the application or before entering into the contract, informing the other person or party that they have been convicted of a sexual offence.
The 2012 National Vetting Bureau Act (as amended in the Criminal Justice [Spent Convictions and Certain Disclosures] Act 2016) sets out circumstances that require vetting, defined as:
Any work or activity which is carried out by a person, a necessary and regular part of which consists mainly of the person having access to, or contact with, children.
Good safeguarding practice means that, as far as possible, management and supervision arrangements are such that substantial, unsupervised access to children is limited.
Under Schedule 1, Part 1, Paragraph 7, of the National Vetting Bureau Act (as amended by paragraph 27 of the Criminal Justice [Spent Convictions and Certain Disclosures Act] 2016) also requires:
Vetting in respect of any work or activity as a minister or priest or any other person engaged in the advancement of religious beliefs, to children (and vulnerable adults) unless such work or activity is merely incidental to the advancement of religious beliefs to persons who are not children (or vulnerable adults). Section 13(6) of the Act provides for vetting of persons under 18 years of age.
The Act states that if a person in respect of whom an application for a vetting disclosure is made is under 18 years of age, a declaration of consent is completed on his or her behalf by a parent/guardian of the young person.
In other words, anyone who is 18 or over and has any contact with children (and vulnerable adults) which is more than incidental as part of their ministry must be vetted. Those who are aged 16 and under 18 may be vetted, but this can only be carried out with the written consent of their parent/guardian and the young person themselves.
For Church bodies who are active in both Northern Ireland and the Republic of Ireland, they must ensure that Church personnel who meet the legislative requirements in each jurisdiction and are active in both jurisdictions are vetted both in the Republic of Ireland and Northern Ireland.
For other Church personnel who may come into contact but who do not work directly with children (or vulnerable adults) in the Church, vetting is not required.
2.2 The legislation provides relevant definitions:
Harm, in relation to a person, means exploitation or abuse, whether physical, sexual or emotional;
Relevant organisation means a person (including a body corporate or an unincorporated body of persons).
So, for the purposes of the Act, the Catholic Church and all of its subdivisions is deemed to be a relevant organisation that:
- employs (whether under contract of employment or otherwise) any person to undertake relevant work or activities;
- enters into a contract for services with any person for the provision by that person of services that constitute relevant work or activities;
- permits any person (whether or not for commercial or any other consideration) to undertake relevant work or activities on the person’s behalf;
- 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, but does not include an individual who does any of the matters referred to in sub-paragraphs (i) to (iv) in the course of a private arrangement.
Relevant work or activities relating to children means any work or activity that is carried out by a person, a necessary and regular part of which consists mainly of the person having access to, or contact with, children in:
- An establishment that provides preschool services within the meaning of Part VII of the Child Care Act 1991;
- A school or centre of education, both within the meaning of the Education Act 1998;
- Any hospital or healthcare centre that receives, treats or otherwise provides services to children;
- Any work or activity that consists of treatment, therapy or counselling provided to a child by a person in the course of that work or activity;
- Any work or activity that consists of care or supervision of children, unless the care or supervision is merely incidental to the care or supervision of persons who are not children;
- Any work or activity that consists of the provision of educational, training, cultural, recreational, leisure, social or physical activities (whether or not for commercial or any other consideration) to children, unless the provision of educational, training, cultural, recreational, leisure, social or physical activities is merely incidental to the provision of educational, training, cultural, recreational, leisure, social or physical activities to persons who are not children;
- Any work or activity that consists of the provision of advice, guidance, developmental or counselling services (including by means of electronic interactive communications) to children, unless the provision of the advice, guidance, developmental or counselling service is merely incidental to the provision of those services to persons who are not children;
- Any work or activity as a minister or priest or any other person engaged in the advancement of any religious beliefs which is not merely incidental;
- Work as a driver of a public service vehicle, which is being used only for the purpose of conveying children
Register of vetted persons: the chief bureau officer will establish and maintain a register of vetted persons who were or are the subject of applications for vetting disclosure, in accordance with the legislation.
The register of vetted persons shall contain the following information regarding each vetted person:
- his or her forename(s), surname and, where appropriate, maiden name;
- his or her mother’s maiden name;
- his or her address;
- his or her previous addresses (if any);
- his or her date of birth, place of birth and nationality;
- his or her passport number (if available);
- his or her personal identification number (if any);
- the date of application for vetting disclosure and the outcome of the application;
- the name and particulars of the relevant organisation making the application for vetting disclosure;
- the relevant work or activity to which the application relates;
- declaration of consent referred to in Section 13 (4) (e);
- particulars of the vetting disclosures made in respect of the vetted person;
- such other particulars as the bureau considers appropriate.
2.3 The Church as a relevant organisation cannot:
- employ (whether under contract of employment or otherwise) any person to undertake relevant work or activities;
- enter into a contract for services with any person for the provision by that person of services that constitute relevant work or activities;
- permit any person to undertake relevant work or activities on behalf of the organisation (whether or not for commercial or any other consideration);
- in a case where the relevant organisation is a provider of any course of education, training or scheme, including an internship scheme, place or make arrangements for the placement of a person as part of such education, training or scheme, if a necessary and regular part of such placement requires the participation by the person in relevant work or activities, unless the organisation receives a vetting disclosure from the bureau in respect of that.
A person who performs any of the matters listed in paragraphs (a) to (d) above without a vetting disclosure from the bureau shall be guilty of an offence.
2.4 Reporting information to the National Vetting Bureau according to the Act (Section 2)
The Church is not defined as a scheduled organisation according to the Act (Section 2), and is therefore not required to report specified information to the National Vetting Bureau. However, information about a member of the Church may be reported to the bureau.
A scheduled organisation has a duty to notify the bureau in writing, where, following an investigation, inquiry or regulatory process, there is a bona fide concern that the person, may:
- harm any child or vulnerable person;
- cause any child or vulnerable person to be harmed;
- put any child or vulnerable person at risk of harm;
- attempt to harm any child or vulnerable person;
- incite another person to harm any child or vulnerable.
If any specified information furnished by a scheduled organisation to the bureau is incorrect or is otherwise inaccurate, the scheduled organisation will, as soon as may be, after becoming aware of its being incorrect or inaccurate, as the case may be, inform the bureau thereof.
2.5 Catholic Church requirements
The Diocese is required to register with the National Vetting Bureau (if not previously registered with the Garda Vetting Unit) and appoint an authorised liaison person, who will be registered by the bureau. It will be the responsibility of the liaison person to ensure that vetting application forms are completed accurately and in full.
For any Church body not already registered, discussions should take place with the host diocese or with the Association of Missionaries and Religious of Ireland (AMRI) to become affiliated under their liaison person, who may act as an ‘umbrella body’ for registration with the Garda Vetting Bureau. Registration and vetting checks can now be carried out online and for more information follow this link https://vetting.garda.ie.
Vetting is carried out in the Republic of Ireland if a member of Church personnel engages in any work or activity, a necessary and regular part of which consists mainly of the person having access to, or contact with children or vulnerable persons. Details of relevant work or activities(Section 2.2) are outlined in part 1 and 2 of Schedule 1 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016.
The form that is completed by the applicant gives permission for a vetting disclosure to be obtained and shared with the relevant personnel within the Church body, in line with data protection legislation. The applicant must give their permission for information to be shared with named relevant people (i.e. the employer and the DLP). The application must identify the relevant work to which the application relates, and must be specific about access to children being a necessary and regular component of the role.
Under Section 13 (2) of National Vetting Bureau (Children and Vulnerable Persons) Act 2012: ‘A relevant organisation may submit an application for vetting disclosure under this section on its own behalf or on behalf of another relevant organisation that the organisation represents for the purposes of the vetting procedures under this Act and, where a relevant organisation submits an application on behalf of another relevant organisation, it shall inform the Bureau of that and provide it with the particulars referred to in Section 8 (5).’
In these circumstances, it is recommended that a Service Level Agreement is developed between the organisations or Church bodies which sets out the sharing of the disclosure. It must be understood that sharing of such information can only be done with the permission of the subject of the disclosure
National Bureau vetting is one method of ensuring that those people about whom there are concerns of a relevant nature are not engaged to work with children. The vetting return must be assessed by the employing person (parish priest, chair of board of management, etc.) to ensure that risk is minimised. Personnel accessing vetting disclosures must also observe confidentiality and must be made aware of the consequences of a breach of confidentiality.
If the vetting disclosure contains information that might mean an applicant is unsuitable for the post, the employer must make a copy of the disclosure available to the applicant to establish first that the identity details are correct, and second, whether the information shared means that the application must not proceed.
If the applicant wishes to appeal the decision, the Church body must set up a review panel meeting (see section on appeals).
It is recommended that applicants be re-vetted at least every three years.
Storage and retention of records
The Diocese is responsible for appointing a data protection officer to ensure that all records are retained, stored and destroyed appropriately. Consideration should be given to the storage of application forms, references and any other records of vetting checks that have been carried in line with data protection legislation.
All records should be retained at least until the conclusion of the vetting process; thereafter all documentation gathered during the vetting process (for example vetting check) should be returned to the applicant or destroyed. A record that a vetting check has been carried out should be retained in line with data protection legislation.
In ROI, the Office of the Data Protection Commissioner recommends that the vetting disclosures should be routinely deleted one year after they are received, except in exceptional circumstances. In case of future queries or issues in relation to a vetting disclosure, the reference number and date of disclosure may be retained on file and this can be checked with An Garda Siochana. This practice is sufficient for all organisations engaged in vetting, including organisations subject to external statutory inspection of staff vetting practices.
Assessing the suitability of an applicant following receipt of a vetting disclosure
It must be emphasised that vetting is a small part of a recruitment process and that all other aspects must be part of the overall assessment of suitability of an applicant. The information below sets out the possible responses following receipt of a vetting disclosure.
Legislation in both jurisdictions (Northern Ireland and the Republic of Ireland) requires the Church body to carry out vetting checks with the relevant body (Access NI or Garda Vetting Bureau) prior to allowing a person to work with children (and/or vulnerable adults).
It is essential that all conviction and caution information is shared on the vetting application form; failure to do so following any disclosure by the relevant vetting office may exclude the applicant from the role.
2.Disclosure – nothing of concern
If the vetting disclosure does not reveal any soft information, cautions or convictions the applicant, on the basis of vetting, can be deemed suitable for working with children (and/or vulnerable adults); however all other aspects of the recruitment process must also be considered.
3.Disclosure – Information not relating to child (or vulnerable adult abuse)
If the vetting disclosure reveals information of a caution or conviction (not of a child or vulnerable adult abuse nature) this must be assessed in line with the requirements of the ministry or work applied for. Issues that should be considered include:
• Was the caution or conviction disclosed by the applicant?
• Is the caution or conviction relevant to the work with children? e.g. if there is a motoring offence and the role does not involve the use of a vehicle is it relevant?
• Is the caution or conviction relating to an offence of theft or dishonesty – while this may not appear relevant to the role with children it may reflect an applicant’s character
4.Disclosure – Information relating to child (or vulnerable adult) abuse
If the vetting disclosure reveals information which includes soft information relating to child or vulnerable adult abuse, careful consideration should be given whether it is appropriate to engaging the applicant in ministry or work with children and or vulnerable adults. Remember caution or conviction relating to domestic violence is relevant.
If the vetting disclosure reveals information of a conviction for abuse of a child or vulnerable adult, the applicant should not be engaged to minister or work with children or vulnerable adults.
It must be noted that any appeal can only be made in relation to the Church decision not to employ the candidate (paid or voluntary), on the grounds that they are not suitable to work with children. The Church has no role in reviewing the contents of the disclosure by the National Vetting Bureau. If there is a disagreement about the disclosure, the applicant must appeal directly to the National Vetting Bureau or Access NI.
The employer will assess the information returned from Access NI or the National Vetting Bureau and decide if there is any reason not to employ the applicant, from a criminal information or specified information perspective. The applicant will be informed that their application cannot proceed based on the information returned through the vetting process.
If the applicant wishes to appeal the Church decision, they should be informed in writing about the process of an appeal.
An appeals panel will be established by the Bishop to hear the appeal. The Bishop will determine if the final decision regarding the appeal rests with the appeals panel or is deferred to the Bishop a final decision.
The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 states that the information contained in the vetting disclosure made to the organisation shall not be used or disclosed by the relevant organisation other than in accordance with the Act. Any breach of this requirement is an offence. Therefore, prior to engaging in any appeals process, legal advice may be sought.
An applicant will be told that the appeal process will require that information disclosed to either Access NI or the National Vetting Bureau can be shared with the panel members, and that any representations made by him/her may be shared with the statutory authorities. Any detail provided, for example to explain the background to a conviction, will be shared with Access NI or the National Vetting Bureau to ensure it is a realistic representation of the facts.
Representation from the applicant will be requested in writing to offer them the opportunity to explain any circumstances in relation to the information received that might further inform the appeals panel. The panel may permit an oral hearing if it is deemed necessary for the fair and just disposition of the appeal.
The role of the appeals panel is to decide if the original decision was unreasonable or irrational. In the first instance, the panel will communicate its recommendation to the Bishop. The Bishop should take cognisance of the advice of the appeals panel. The applicant will then be informed in writing of the final decision following a review by the Bishop, based on the advice of the appeals panel.
Constitution of panel
The Bishop will appoint an appeals panel. The following people should be considered as appropriate members of the panel:
- Chair of the safeguarding committee;
- Priest or religious;
- Lay person with child protection experience.
Advice can be sought from the following: a representative from HR (if the Church body has one); a civil law solicitor; a canon lawyer; and/or an employment lawyer.
Role of panel
- To receive and hear requests for review of decisions not to appoint on the basis of information received through the vetting process;
- To review the written information provided by the applicant, and to receive oral evidence from the applicant and relevant Church personnel, if deemed appropriate;
- To make a judgement regarding whether the decision not to employ was reasonable:
- Was the decision to refuse based on a potential risk to children?
- Was the relevance of the specific role taken into consideration?
If it is determined that the final decision regarding the appeal rests with the Bishop, the Appeals Panel must report its recommendation to the Bishop for consideration.
- An appeal must be lodged with the employer within twenty-eight days of being informed of the decision not to appoint. The applicant will be asked to provide written representation within fourteen days of receipt of correspondence requesting this. Failure to provide this information within the time frame suggested, or failure to seek an extension, will result in the matter being closed and the original decision standing.
- The appeals panel will aim to review all information within fourteen days of receipt of the same, and communicate its recommendation in writing to the Bishop.
- The Bishop will communicate their decision in writing to the applicant.