Safeguarding with Confidence - Cumberlege Report

Some preliminary issues in responding to an allegation of abuse 24

(a) Confidentiality and the culture of vigilance

4.22 Where a person discloses to a member of the Church or those entrusted with safeguarding children or vulnerable adults, concerns as to the conduct of a priest, religious, volunteer or lay person within the Church, they may ask and expect that the matter will be treated confidentially.

4.23 In doing so they may be under the impression that confidentiality means the person receiving the information is not at liberty to discuss it with anyone else. Given the nature of the matters being discussed and concerns raised, it cannot be in the interests of the Church, the individual seeking confidentiality or any possible victim for this narrow interpretation of confidentiality to be accepted without qualification when the safety of children or vulnerable adults is at stake.

4.24 There are parallels for this outside the Church, for instance, in the healthcare professions with similar restrictions applying across the public services. No promise of confidentiality in its narrowest definition can be made by a member of those services. Indeed, it is more usually the case that the person providing the information will be told that the matter will be discussed confidentially with appropriate persons within their organisations and that decisions taken will be made by that small group of professionals.

4.25 It may be that the commonly understood, narrow definition of confidentiality has been accepted in the past. However, we cannot emphasise too strongly that such a position cannot be maintained if the safety of children and vulnerable adults is to be pursued throughout the Church. It must be accepted that when such information is provided – unless it is disclosed under the seal of the confessional – it will be discussed by those charged with safeguarding children and vulnerable adults within the Church and, if necessary, with external safeguarding agencies. To avoid any misunderstandings, those who receive such information should advise the person giving it of the restrictions to confidentiality that are likely to be applied. The criteria and the circumstances in which information of this kind will be shared with others needs to be clearly set out in an information sharing policy.

Recommendation 43
The Catholic Safeguarding Advisory Service should develop an information sharing policy as soon as possible and no later than 12 months from the publication of this report.

(b) Record keeping

4.26 The importance of keeping accurate and up to date records of information concerning allegations of abuse or suspected abuse cannot be underestimated.25 Knowing what was said, what enquiries were carried out and by whom and what decisions were reached, if properly recorded, serves to protect both the victim/complainant bringing the allegation, and the accused – particularly if the allegation turns out to be false or malicious.

4.27 We have heard from a number of respondents who have raised objections on both ethical and practical grounds to Lord Nolan’s recommendation that records should be kept for 100 years. Experience shows that not only do allegations of abuse surface many years after the incident allegedly took place, so, too, does fresh evidence or new disclosures in relation to allegations that have previously been investigated. Hence the importance of keeping records long after the death of those concerned. Their protection, however, and that of their good name, depends on the information recorded being complete. Where an inquiry fully vindicates the accused this information must be prominent on the face of the file. Equally the victim/complainant’s disclosures and any interviews and those of other relevant witnesses must be properly recorded.

4.28 Lord Nolan recognised that 100 years is a long time. But there are precedents for a similar timeframe in other areas – the longest being 80 years for adoption records held by social services. We, therefore, see no reason to depart from Lord Nolan’s recommendation and would stress the importance of safe, secure and centralised record storage. For religious congregations this means all records should be stored in the Congregational archives in England and Wales to avoid the loss or mislaying of records if a community closes.

(c) Preliminary enquiry

4.29 It is an essential part of the process that an early enquiry is made as to the nature and seriousness of the allegations. It is obviously important to rule out the vexatious or clearly false allegation; once this has been done, the position of the accused within the parish or congregation, must be assessed in order to gauge the potential risk to the child or vulnerable adult victim and/or to any other children or vulnerable adults. The initial enquiry should be conducted expeditiously but with due regard to the position and rights of the accused and the victim/complainant. It should be recorded properly and be capable of audit. It may be necessary to conduct the initial enquiry with minimum publicity and without the knowledge of the accused, particularly if the allegations are also being investigated by any of the statutory agencies but it should never be undertaken in a manner that would call into question either the good name of the victim/complainant or the person accused.

(d) Immediate protection of children or vulnerable adults

4.30 We have already made the point that in a child or vulnerable adult protection process the priority is to protect victims and those at risk of abuse and this may call for a temporary removal from duties for the person against whom an allegation is made pending the outcome of an investigation. In this regard the Church, its priests, religious, employees and volunteers can be treated no differently. We have, however, heard from a number of witnesses who, in respect of an allegation made against a priest, question not only the canonical legality of temporarily withdrawing that priest from active ministry but also whether his removal should be automatic, especially when the allegation relates to historic abuse.

4.31 Our understanding of the position in Canon Law would seem to be as follows. A priest who has been canonically installed in a parish cannot be evicted from that parish even for a short period except when a penal process has been initiated. So, although he can be asked to leave he cannot be forced to go. However, it is now generally accepted, (and we have taken expert advice on this point) that a Bishop or Congregational Leader can take such precautionary measures ‘to ensure the integrity of the investigation, to safeguard the good name and safety of the persons involved and to avoid scandal’.26 It would thus seem that the option to remove temporarily a priest from active ministry is catered for in the specific circumstances described and where no other options are available. But ‘... the way in which precautionary measures are decided, communicated and implemented is not a matter of secondary detail’.27 If a number of priests feel they are being treated unfairly it may be ‘because these measures are at times applied with little concern for the dignity of the accused cleric’.28

4.32 Ultimately, the management of an allegation of abuse and whether or not a priest or religious is temporarily removed from active ministry (or an employee or volunteer is suspended from his duties) depends entirely on the nature and seriousness of the allegation and the situation of the alleged offender at the time the allegation is made. Whether the allegation relates to recent events, or events that took place many years ago when the complainant or victim was a child can have no bearing on the decision to remove a priest or religious from active ministry or suspend an employee or volunteer. If the accused is still actively engaged in a parish or religious congregation or in activities in which he or she has access to children, other children may be at risk and may have to be protected pending investigation. In such cases the approach to the protection of children seen to be at risk is likely to be similar for historic and recent abuse cases and the priest or lay worker is likely to be asked to leave church premises while the allegations are being investigated. The position of a person accused of historic abuse of a vulnerable adult would be broadly similar to that of historic allegations of abuse of children.

(e) Temporary withdrawal from active ministry

4.33 Where temporary withdrawal from active ministry is considered necessary the first step should always be to seek such withdrawal on a voluntary basis. Only if this cannot be achieved should the Bishop or Congregational Leader rely on his canonical powers. The decision, however, to withdraw the accused priest or religious from active ministry on a temporary basis remains that of the Bishop or Congregational Leader, informed by the preliminary enquiries of the CPC/CPO on behalf of the Commission and in consultation with, and on the advice of, the statutory authorities.

4.34 Any such decision (or decision to suspend from employment or Church activities in the case of an employee or volunteer) - or any other decision affecting the accused - must only be acted upon after the accused has been informed that there are allegations made against him/her. Although at this early stage the accused may not necessarily know the nature or details of the allegations, he or she must be given an opportunity to seek legal (and, if appropriate) canonical advice. The decisions taken must be recorded; the reasons set out clearly and the requirements to be placed upon the accused set out in writing and provided to the accused and/or his/her representative. Any discussions or interviews with the accused must be properly notified to him/her; recorded in writing and a copy of the record provided to the accused.

4.35 It is our firm view that dioceses and religious congregations should contribute to the legal costs of priests or religious and we encourage the Church to seek clarification of the legality of using charitable funds for this purpose. The Church might also wish to initiate discussions with the Legal Services Commission to explore the possibility of accused priests being eligible for civil legal aid where no other source of funding appears to be available.

4.36 Appropriate provision for the housing, welfare, economic well being of any person temporarily withdrawn from active ministry should also be made and those provisions, including any restrictions placed upon them, should be notified in writing to the accused together with the Covenant of Care. It should be made clear what information relating to the allegation(s) will be placed in the public domain and that every effort will be made to confirm publicly that such a withdrawal does not constitute a removal from office.

4.37 All of these basic requirements, already set out in the Church’s national policies must become standard practice across every diocese and religious congregation.29

The statutory process

4.38 Any enquiry by a statutory agency, for example, the police or social services, will result in one of the following findings:

(i) Finding of guilt by a criminal court.

(ii) A formal caution by the police (this is an admission of guilt by the accused).

(iii) Acquittal by the criminal court.

(iv) No further action taken by the statutory authorities.

4.39 A decision to “take no further action” by the statutory authorities will be made by the Crown Prosecution Service (CPS) on advice from the police. It is important to understand, and acknowledge the difference between, the two grounds for a CPS decision not to prosecute; firstly, that there is insufficient evidence to justify a criminal prosecution and secondly, that a prosecution is “not in the public interest”.

4.40 There are many reasons why the CPS may come to its decision on the basis of this second ground including, for example, the lack of capacity of the victim/complainant to give evidence. This would apply to a very young child, a vulnerable adult, a person with disabilities, an elderly victim/complainant or one in ill-health. In such a case the test of sufficiency will have been met – in other words there would have been sufficient evidence to merit prosecution.

4.41 Where an investigation by a statutory agency is commenced the Child Protection Commission, through the CPC/CPO, should maintain close liaison with the statutory agencies; seeking to ensure the enquiry is expedited and that the victim/complainant and the accused are kept aware of the pace of the enquiry and that his or her rights within the Church are preserved. But irrespective of how the statutory enquiry proceeds, the accused and the victim/complainant must be made fully aware that a statutory enquiry is limited to the identification and evaluation of an alleged crime and that alone.

4.42 The duty of the Bishop or Congregational Leader, following a conviction or caution for a criminal offence, is straightforward and documented in national policies. Accepting a police caution constitutes acceptance of guilt under the criminal law of the offence alleged. In child and vulnerable adult sexual abuse cases such an admission will almost inevitably lead to that person’s name being put on the Sex Offender’s Register. A conviction or caution for child or vulnerable adult abuse would also inevitably place the convicted or cautioned person’s name on the POCA (Protection of Children Act) or POVA (Protection of Vulnerable Adults) register respectively.

4.43 The Church is under a clear obligation to accept the consequences of a criminal conviction or a caution and to recognise the implications of the individual concerned having his/her name placed on the Sex Offenders’ Register or any other Register. In the autumn of 2008 the POCA and POVA registers (together with the DfES List 99 for teachers) will be absorbed into the new Vetting and Barring Scheme – a new single list of those barred from working with children and a separate but aligned list of those barred from working with Vulnerable Adults.30 Although the details of the new system are still being worked through we understand that any person convicted of a serious (specified) sexual offence will be automatically barred from obtaining employment or volunteer work in certain ‘regulated’ or ‘controlled’ activities where there is frequent and unsupervised access to children or vulnerable adults. In the case of a conviction or caution for other offences the offender can be automatically included on the register as deemed unsuitable to work with children and vulnerable adults. The Church is not exempt from the new scheme. This has clear implications, particularly for volunteers, employees, priests and religious working exclusively or substantially with children or vulnerable adults.

The evolution of the Church process

(a) Receipt of an allegation

4.44 An allegation of abuse against a priest, religious, employee or volunteer working for the Church is most likely to be made either directly to a church member or to another organisation, usually but not always to the police or local authority social services.

4.45 Upon receipt of such an allegation the Child Protection Officer (CPO) or, Child Protection Co-ordinator (CPC), acting on behalf of the Child Protection Commission must, if there is any suspicion that a criminal offence has been committed, bring it to the notice of the statutory agencies for their consideration and investigation and we discuss the possible outcomes of such an investigation above. The CPC or CPO should take responsibility for managing the handling of the allegation from start to finish, including the preliminary internal inquiry and any subsequent internal investigations. It will be his or her responsibility to keep both the victim/complainant and the accused fully and regularly informed as to how the allegation is progressing.

(b) The initiation of a Church process

4.46 In cases where there has been an acquittal or a decision not to prosecute there may be, nonetheless, sufficient evidence to meet the civil standard of proof of the allegations which have been made. The duty of the Bishop or Congregational Leader, in the event of:

(i) an acquittal where there remains concerns,

(ii) a criminal enquiry which does not lead to a prosecution or

(iii) an internal investigation of apparently inappropriate conduct but not amounting to a crime,is to examine the position of the accused within the Church. The accused may be a priest, religious or lay person in a position of trust or a member of a parish congregation; their continued role or position within their parish and the Church must be considered carefully. While a priest should not be removed from all priestly ministry nor a religious compelled to leave the religious life unless there is moral certainty of guilt, the welfare of children, young people and/or vulnerable adults may require that they be protected from one against whom a case has been made out on the balance of probabilities. The nature and seriousness of the allegations and any working relationship with children, young people and/or vulnerable adults in the future are crucial factors in the decision to be made. Information held by the statutory agencies, whether or not following an enquiry of their own, may inform the Church process, but cannot be seen as the sole criterion by which such decisions are made.

(c) Full enquiry and the investigation

4.47 Although the final decision and the means of dealing with a priest or religious, employee or volunteer against whom an allegation has been made rightly rests with the Bishop or Congregational Leader, it is the Diocesan and Religious Child Protection Commissions who make recommendations to the Bishops and Congregational Leaders based on an examination of the papers before them. There is, however no document or policy detailing the procedures to be observed by the Commission when making its recommendations. The Commission does not usually conduct any enquiries of its own as part of its risk assessment, nor does it disclose to the accused or his/her representative the evidence or other material that has been collected. It does not publish the criteria it will apply in coming to its recommendation and its business is conducted in closed session. We understand that the accused may make representations to the Commission in writing, but without knowing all the details of the case they must answer to, he or she are to some extent acting in the dark. And since neither the accused, nor his or her representative, are invited to attend the relevant Commission meeting and there is no oral examination of any witnesses, the whole process is conducted as a paper exercise without any proper recourse to challenge.

4.48 We propose a number of changes to remedy this, beginning with the need for a full investigative enquiry. Where an allegation is made which requires further investigation the CPO/CPC on behalf of the Commission, should appoint an independent investigator – independent of the diocese or religious congregation – to carry out such enquiries as are appropriate, seeking assistance from the statutory agencies where they hold information, interviewing witnesses, the victim(s)/complainant(s), the accused and others who can provide evidence as to the alleged incidents or other relevant information.

4.49 This investigation will usually take place after the statutory enquiries have been completed and should be conducted expeditiously, taking no longer than three months wherever possible (unless the appointed investigator is awaiting the outcome of a decision of a statutory agency). In cases where there may be a delay, and particularly where a priest or religious has been temporarily removed from active ministry or a lay person suspended from duties, it is important to keep everyone informed of the progress of the investigation and to maintain records of such communications. There can be no excuse for anyone accused to be left uninformed and ‘in limbo’ indefinitely.

4.50 Given the specialist skills and the experience required to undertake investigative work we suggest that the appointed investigator is drawn from a national or regional pool of suitable people with appropriate qualifications and competencies, as advised by the CSAS. Existing CPOs/CPCs with the necessary competencies should not be precluded from putting their names forward to undertake such specialist work on behalf of another Diocesan or Religious Commission. However, it is unlikely given the declining numbers of such (child protection) cases coming through the system that all CPCs/CPOs currently in post will have, or indeed require, the necessary expertise to do this work. Reducing the workloads of CPCs/CPOs in this respect – though they retain responsibility for the overall management of allegations of abuse received by the Diocesan or Religious Commission – should also free up capacity for more (and much needed) training, support and preventive safeguarding activity at parish and community level.

(d) The risk assessment

4.51 Alongside the enquiries carried out by the independent investigator, the Bishop or Congregational Leader may require guidance as to any future risk presented by the accused, the implications of this for any future role the accused might hold within the Church, or to inform a decision as whether to remove him/her permanently or temporarily from their ministry or parish. Where the statutory investigation is complete, or no action has been taken by the statutory authorities, the Diocesan or Religious Child Protection Commissions are expected to exercise their professional judgement based on the material already before them. (Following a conviction or custodial sentence, risk assessments may already have been conducted either in prison or by the probation service and these reports should be made available to the Diocesan and Religious Commissions as a basis for their decision making.)

4.52 Where, following the enquiries of the independent investigator, there remains a lack of certainty as to the level of risk posed and the CPC or CPO considers it necessary to have an external risk assessment, he/she should inform the Commission giving reasons and the Commission should make its decision and instruct an appropriately qualified person accordingly.

4.53 Concerns have been raised about the type of assessments that priests accused of abuse have been asked to undertake. We have also been alerted to the relevant canon which makes clear that a Congregational Leader cannot compel a religious to undergo any kind of psychological assessment which involves the manifestation of conscience.31 National policy already requires that before a risk assessment is carried out, the accused person should be consulted and invited to consent. If he or she refuses a risk assessment cannot be undertaken. But such a refusal is likely to be a significant factor in the eventual decision of the Bishop or Congregational Leader who must observe the Church’s duty of care to the public in deciding whether to allow the accused to continue to hold his/her post in the Church or to continue to be engaged in any Church activity which might bring him or her into contact with children or vulnerable adults.

4.54 Clearly any risk assessment undertaken in these circumstances should be completed by an experienced practitioner. (We set out a fuller explanation as to the relevance of the risk assessment process in investigations of abuse in Annex G.) It is our view that such a person should have at least five years relevant experience of working with sexual and violent offenders, preferably in a child protection or vulnerable adult environment, and can demonstrate competences of clinical and psychometric assessment. Chartered forensic psychologists may demonstrate these competences, however experienced child protection workers and probation officers may also have these skills and be more available to CPCs/ CPOs and their Commissions. Whilst establishing an accredited list of assessors is fraught with difficulties we suggest that CPCs inform the Catholic Safeguarding Advisory Service when an assessment has been completed to a high standard. This will enable other CPCs/ CPOs in search of an assessor to seek advice - which we gather already happens informally between Commissions - and be informed of practitioners who have performed well in the past. The presumption should be that such assessors are UK based.

4.55 We have also heard evidence that some assessments have involved individuals participating in a group process. Whilst this has some advantages, it is not considered suitable for the assessment of unconvicted individuals and it is recommended that such assessments should only take place on an individual basis.

Recommendation 44
Where an external risk assessment is considered necessary for a member of the church accused of abuse against a child or vulnerable adult he or she should not be expected to participate in a group risk assessment unless he or she has pleaded guilty to, or has been convicted of, the offence.

(e) The Commission Panel

4.56 It is the responsibility of the CPC/CPO managing the allegation to present the findings of the appointed investigator and the external risk assessment (where there has been one) either to the Commission sitting in full or to a Panel of members convened by the Commission. Such a Panel, comprising a minimum of three members, and chaired by an independent person, should be constituted from members of the Commission and/or, if appropriate, people from that diocese or religious congregation or a nearby diocese or another religious congregation to examine the facts of the case and to make a recommendation to the Bishop or Congregational Leader. In assessing the evidence they should be able to call witnesses including the accused and his or her representative, the victim/complainant, if willing to attend, and/or his or her representative as well as the independent investigator, external risk assessor (if there is one) and any other witnesses with relevant information to assist in the process. The Panel’s determination should be made after assessing all the evidence to the civil standard of proof, that is to say, on the balance of probabilities and their recommendations recorded in writing with reasons. The accused and the victim/complainant, where he or she has participated in the process, should be informed of the Panel’s recommendations at the same time as the Bishop or Congregational Leader.

4.57 Prior to the sitting of the Commission Panel, and in good time for any representations to be prepared, the accused must be provided with a copy of the investigator’s report and any supporting documentation (including the external risk assessment where there is one). Care must be taken to preserve the rights within the Church of the accused and the victim/complainant in so doing. The accused should have been given recourse to appropriate assistance, should have received proper access to all the documentation and any other evidence and should have the opportunity to challenge the evidence presented to the Commission or its especially convened Panel. The victim/complainant should be provided with such support as is necessary to ensure that they too can assist the enquiry, if that is their wish, and that such needs as they have for counselling or other support are met insofar as the Church is able to do so (we return to this in the next chapter of this report).

Recommendation 45
Each Diocesan Commission, and for a congregation dealing with an allegation, the relevant Religious Commission should arrange for a Panel to examine the enquiries of an appointed independent investigator and make recommendations to the Bishop or Congregational Leader. An independent person should chair the Commission Panel.

Recommendation 46
For the occasions where it is considered beneficial for non Commission members to sit on the Panel convened by the Diocesan/Religious Commission, a register of those willing and suitable to serve on the Panel should be kept either within a Diocesan or Religious Commission or in collaboration with another Diocesan or Religious Commission as part of any reciprocal arrangements.

(f) The Review Panel

4.58 We recognise that currently, following a judicial or administrative process, the only recourse of a priest or religious to challenge the decision of his Bishop or Congregational Leader rests with an appeal to the Holy See. We have also heard evidence that such recourse is often lengthy and only adds to the frustration and anguish felt by those who believe they have been wrongly accused and unfairly penalised. It is for this reason that we propose introducing a new review process which reinforces the right of the Bishop and Congregational Leader to make the final decision and leaves unaffected the right of appeal to the Holy See.

4.59 Upon receiving the recommendation of the Commission the Bishop or Congregational Leader will come to a preliminary decision. If the recommendation is accepted the Bishop or Congregational Leader will, at the earliest opportunity, make his or her view known to the accused and the victim/complainant. However, to assist in the decision making, or if he/she is dissatisfied with the recommendation of the Commission the Bishop or Congregational Leader should be able to seek the advice of a Review Panel especially convened at his or her request (or be able to refer the matter back to the Commission for further enquiries to be made). It is our view that the accused must have a similar right to seek a review of the evidence and process of enquiry once the recommendation and reasons of the Commission are made known to him or her. Notification of a decision to seek such a review, whether by the Bishop or Congregational Leader or by the accused should be given to the CPC/CPO within ten days of first receiving the recommendation of the Commission or its Panel.

4.60 We propose that the new Review Panels should include those with experience in civil and/or employment law, safeguarding of children and/or vulnerable adults, investigation processes and canon law where practicable. It should be independently chaired and its members drawn from a regional or national panel especially selected by the CSAS on behalf of the Bishops’ Conference and Conference of the Religious, by way of open advertisement. We suggest that members will be expected to sit on an expenses only basis. We recommend the Review Panel sits as a minimum of three and a maximum of five members and we propose that the operation and co-ordination of the Review Panels is subsumed within the functions of the CSAS. As members of the Review Panel will be required to sit on an adhoc basis and must be available at fairly short notice it is important that an up to date register of those able and prepared to assist locally is also maintained by Diocesan and Religious Commissions in consultation with the CSAS.

4.61 Once convened, it is the responsibility of the CPO/CPC to ensure that the Review Panel is provided with all the documentation and any other relevant evidence or information available to the Commission either at the time of the panel sitting or since. The accused should similarly receive all the same documentation and have the opportunity to make written representations to the Review Panel. In making any recommendation to the Bishop or the Congregational Leader, the Review Panel must be satisfied that the investigation and the hearing by the Commission at first instance has been conducted with proper respect for the rights of the accused and in accordance with Canon Law and the principles of natural justice. It is open to the Review Panel to ask the Commission to make further enquiries. It is suggested that the Review Panel should usually have met and reached its decision within 28 days of being requested to convene. There may, however, be occasions for delay, for example where the Review Panel refers the matter back to the Commission Panel for further enquiries; where this does occur it is important that all involved in the proceedings are kept fully informed.

4.62 Having examined all the documentation and other evidence and fully considered any written representations by, or on behalf of, the accused the Review Panel must apply the civil test of the balance of probabilities in making its findings. The Review Panel will submit its recommendations to the Bishop or Congregational Leader, the accused, the victim/complainant and the relevant local Commission. For the purposes of proper audit within the Church, we are also recommending that the local Commission notifies the new National Safeguarding Commission and may inform the Holy See of the Review Panel’s recommendations.

4.63 At the end of the process, the Bishop or Congregational Leader, having considered the Review Panel’s recommendations, will decide upon the appropriate course of action and inform the accused, the victim/complainant and all concerned, including, in the case of a priest temporarily withdrawn from active ministry, his parish.

(g) Due process for the victim/complainant

4.64 In setting up a process which can be seen to be open, fair and impartial to both the accused and the victim/complainant a means should exist for a victim/complainant to seek reconsideration of decisions made during the preliminary stages of an enquiry and at the decision making stage.

4.65 Where a victim/complainant has recorded a complaint with a local CPO/CPC and the CPO/CPC and/or Commission concludes at an early stage that there is no issue to investigate, or decides not to enquire further into the complaint, the victim/complainant should be able to request that the Bishop or Congregational Leader review that decision.

4.66 Where the victim/complainant seeks such a review the Bishop should consider whether to call a member or members of the Review Panel to examine the documentation and the reasoning by which the CPO/CPC or Commission came to its conclusion. In the event that the Review Panel agrees with the CPO/CPC or Commission the victim/complainant should be so advised and the matter concluded. Should, however, the Review Panel feel that further investigation is called for the CPO/CPC or Commission should be required to pursue the matter to full enquiry.

4.67 There may be occasions, when upon completion of an investigation and full enquiry the Commission recommends a course of action to the Bishop or Congregational Leader which leaves the victim/complainant feeling dissatisfied with the outcome. Where the victim/complainant expresses such a concern in writing to the Bishop or Congregational Leader within ten days of receiving the recommendation of the Commission, the Bishop or Congregational Leader may at his or her own discretion invite the Review Panel to examine the case.

Recommendation 47
A Bishop or Congregational Leader should be able to seek of his/her own volition a review by a specially convened Review Panel of the recommendations made and the process of enquiry following the investigation of an allegation of abuse. He/she must seek such a review in response to a request from the accused and he/she may do so at his/her own discretion in response to a request from the victim/complainant.

Recommendation 48
The Review Panel should review the investigations and recommendations of the Commission Panel as required and make recommendations to the Bishop or Congregational Leader.

Recommendation 49
The members of the Review Panel should be appointed from a panel, set up and administered by the CSAS on behalf of the new National Safeguarding Commission.

Recommendation 50
A Review Panel should comprise a minimum of three members and a maximum of five members and should include those with appropriate professional experience in law and safeguarding of children and/or vulnerable adults, investigation processes and Canon Law where practicable. An independent person should chair the Review Panel.

Recommendation 51
Careful records should be kept by the CPC/CPO, the appointed investigator, the Commission panel, the Review Panel and by the Bishop or Congregational Leader to satisfy the Church’s need for a proper audit of its decision making processes.

Supporting the parish

4.68 Finally, we have heard from a number of parishioners who have shared with us the sense of loss, hurt and bewildering confusion they have experienced when it is known within the parish that there has been an allegation of abuse against one of their own, and never more so than when it is the parish priest who is at the centre of the allegation.

4.69 We have been at pains to emphasise in this chapter the importance of keeping the accused and victim/complainant as fully informed as is possible of the stages of inquiry and investigation. The parish deserves no less attention being paid to their needs to be kept informed if parishioners are not to be left feeling adrift and anxious. The responsibility for doing this and generally managing a parish facing an allegation and having to cope with its effects rests firmly with Bishop and the diocese.

4.70 It has been suggested to us that much more can be done to lessen the sense of disillusion among parishioners during this difficult time if they understand better what is happening and why and what practical things they themselves can do to make the situation more bearable. Among the suggestions put to us, and which we endorse, building as they do on national policies, are32:

(a) that the Bishop should take personal responsibility for breaking the news to the parish concerned or at the very least ensure that it is announced by a priest who is
familiar with the parish;

(b) keep parishioners informed of what is proposed and continue to communicate regularly; consult with the parish as to how it can cope and draw strength in the absence
of its usual parish priest;

(c) arrange for a priest who is familiar with the parish to visit at least every four weeks and to say at least one Sunday parish Mass and answer any concerns raised;

(d) set up a phone service to pass individuals seeking help or counselling straight on to an assigned priest in a neighbouring parish; ensure the number is well publicised in the relevant parish community.

Figure 3 - FLOWCHART ILLUSTRATING THE PROCESS OF AN ALLEGATION OF ABUSE AGAINST A MEMBER OF THE CLERGY, LAY OR VOLUNTEER

Notes on Canonical Issues (Figure 3)

(a) Child sexual abuse is an “external violation of the VI Commandment” and as such is subject to specific canonical processes that do not apply to other forms of child abuse. It includes the downloading of child abusive images. Physical abuse of a child is dealt with in canon law under canon 1397. Other forms of child abuse (neglect, emotional abuse) may be covered by canon 1399.

(b) The Ordinary may appoint the Child Protection Co-ordinator to act as delegate in all such cases in advance.

(c) The report will indicate the following:

Does the allegation, if proved, indicate:

- an external violation of VI Commandment ?
- against a minor?
- involving the abuse of power/position?
- a potential source of scandal?

And

- were force/threats used?
- was it in public?
- context of Sacramental confession?
- factors reducing “imputability” (e.g. mental illness)?
- time barred? (The Holy See will on request remove time bars for child sexual abuse cases).
- In the judgement of the Ordinary, is penal action appropriate?

(d) Canonical process: - “judicial” or “administrative”

The difference lies in the process and possible decisions – a judicial process is required for permanent penalties.

Summary of a Judicial Process:
- Ordinary entrusts case to Promotor of Justice;
- Appointment of Tribunal;
- Promotor submits petition containing allegations and proofs proposed to presiding judge;
- Judge decrees acceptance of petition and cites the accused;
- Ordinary may make temporary provisions as safeguards to integrity of process;
- If accused does not appoint advocate, judge does so ex officio;
- Judge defines issue to be decided by court;
- Instruction of case – evidence gathering phase;
- Discussion of case – pleas of promoter, advocate and accused;
- Decision of court by majority;
- If no appeal, decision becomes effective after 15 days.

Summary of an Administrative Process:

- Ordinary summons accused and informs accused of the accusation and proofs;
- Accused given opportunity of self–defence;
- Ordinary weighs proofs and arguments with two assessors;
- If Ordinary “morally certain” that offence proved, decrees appropriate penalty;
- Possible hierarchical recourse to Holy See.

In both processes the Tribunal and assessors are canonically trained clergy. Name of the alleged victim is shared with the accused.

(e) Not necessary to adjourn the canonical process e.g. if Police have already completed investigation previously.

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