D.M. v Child and Family Agency
|Ms. Justice Siobhán Phelan
|20 December 2022
| IEHC 716
|[Record No.:2021/1010 JR]
 IEHC 716
[Record No.:2021/1010 JR]
THE HIGH COURT
Judicial review – Child sexual abuse – Child Care Act 1991 s. 3 – Applicant seeking judicial review – Whether the respondent had failed to discharge the duty imposed on it under s. 3 of the Child Care Act 1991
Facts: An application for leave to proceed by way of judicial review was moved on foot of papers filed on the 29th of November, 2021. The case made on behalf of the applicant was that the respondent, the Child and Family Agency (the Agency), had failed to discharge the duty imposed on it under s. 3 of the Child Care Act 1991 (as amended) by closing its file on the complaint of child sexual abuse made on behalf of the applicant in reliance on the report of the Appeal Panel established in accordance with its Policy and Procedures for Responding to Allegations of Child Abuse and Neglect (2014) which, reversing an earlier finding of the Agency, found the complaint “unfounded”. The decision to treat the s. 3 assessment as at an end and close the file was made notwithstanding concerns raised on behalf of the applicant about the appeal process and the soundness of the conclusions arrived at in that process.
Held by the High Court (Phelan J) that the Agency retained a discretion under s. 3 of the 1991 Act to investigate the complaint further but it was not under a statutory obligation to do so. Phelan J held that it was open to the Agency to establish an Appeal Panel as part of the procedure it adopted to ensure fairness in the assessment process. Phelan J held that there was no evidence in the case that the Agency considered itself bound to accept the decision of the Appeal Panel and precluded from any further assessment of the complaint. Were this the basis for the decision, Phelan J considered that it would be wrong in law having regard to the continuing nature of the duty on the Agency under s. 3 of the 1991 Act. Phelan J held that the statutory power to continue to investigate child sexual abuse following the conclusion of an investigation conducted in accordance with its established procedures must be exercised in a reasonable and proportionate manner.
Phelan J held that in circumstances where it had not been demonstrated that the Agency had unlawfully delegated functions under s. 3 of the 1991 Act nor unreasonably or improperly decided not to further assess the complaint, she would refuse the relief sought.
JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 20 th day of December, 2022
. These proceedings relate to the obligations on the Child and Family Agency [hereinafter “the Agency”] to conduct an investigation in respect of notified complaints of child sexual abuse and the rights of complainants in that process. No challenge to the vires of the Agency to conduct an investigation arises. Rather the case made is that the Agency has failed to discharge the duty imposed on it under s. 3 of the Child Care Act, 1991 (as amended) [hereinafter “the 1991 Act”] by closing its file on the complaint made on behalf of the Applicant in reliance on the report of the Appeal Panel established in accordance with its Policy and Procedures for Responding to Allegations of Child Abuse and Neglect (2014) [hereinafter “the 2014 Policy”] which, reversing an earlier finding of the Agency, found the complaint “ unfounded”. The decision to treat the s. 3 assessment as at an end and close the file was made notwithstanding concerns raised on behalf of the Applicant about the appeal process and the soundness of the conclusions arrived at in that process.
. The Applicant was born in March, 2013. When she was about three and a half years old, in November, 2016, she made a disclosure of sexual abuse, viz. touching of the genital area and digital penetration by the husband of her minder [hereinafter “ the identified man”]. The Applicant's complaint was assessed at St. Clare's Unit at Children's Health Ireland on behalf of the Agency and she was interviewed by specialist Gardaí. The Social Work Assessment Team appointed by the Agency concluded that on the balance of probability the Applicant had been subjected to sexual abuse by the identified man and her allegation was “ founded”.
. On his subsequent trial on criminal charges related to this abuse in 2019, the identified man was acquitted.
. The identified man appealed against the Agency's finding that the allegation against him was founded in accordance with the provisions of the 2014 Policy which provides for a non-statutory appeal process for persons against whom it is concluded that allegations of abuse are founded. The Agency nominated an Appeal Panel and prescribed its terms of reference (recorded in the subsequent report of the Appeal Panel at para. 2.2) as follows:
“To examine the professional decision making process leading to a conclusion that abuse and/or neglect occurred and to reach and new and impartial decision based on the evidence provided.
To make a determination as to whether fair procedures were adhered to at all stages of the assessment process.
To make recommendations as is appropriate.
To provide a report to Tusla Legal Services Office within the timescale prescribed”
. The identities and qualifications of the two members of the Appeal Panel were set out in its report. From the description given, both are experienced social workers with specialisation in child protection and welfare matters and investigation or enquiry experience.
. In its report dated 15 th of January, 2021, the Appeal Panel concluded that the finding of the Social Work Assessment Team that the allegation of abuse was “ founded” in the Applicant's case could not be upheld because of an identified failing in the professional decision making described as follows at para. 4.3 of the Report:
“The Panel accepts that as set out by the Social Work Department, [name of child]'s initial disclosure was spontaneous. The issue as highlighted by [name of clinical psychologist] is the suggestibility of a child of this age and the leading questions used in the Garda interview may have contaminated the evidence. The Panel agrees with [name of psychologist]'s assertion that it is likely that this contamination compromised the St. Clare's assessment process and validation.”
. The report from a psychologist referred to and relied upon by the Appeal Panel was a report which had been prepared for but not relied upon in the defence of the criminal proceedings. This report was not available to the original assessment team and was therefore not considered when the original finding of “ founded” was made. It appears that the author of the report has not been subjected to examination in respect of his report. It is unclear from the redacted report of the Appeal Panel whether they were made aware that a separate report had been obtained by the Director of Public Prosecutions [hereinafter “the DPP”] or whether they made any attempt to procure it.
. Although it is unclear when the psychologist's report was provided to the Appeal Panel or what opportunity was provided to the Social Work Team or St. Clare's to respond to it (the report of the Appeal Panel in evidence before me is heavily redacted), the report, in its unredacted parts, notes that there was a meeting with the Social Work Team in July, 2020 and submissions received at the end of August, 2020 with further queries being addressed in December, 2020. For their part, St. Clare's Unit have communicated to the Applicant's parents that they had not been contacted in relation to the Appeal Panel since April, 2020 which may have been before or after receipt of the psychologist's report.
. It is clear from the report that the Appeal Panel had available to it, inter alia, the transcript of the Garda Specialist Interview in November, 2016 and the redacted St. Clare's Report dating to May, 2017 following from an earlier assessment. It is also clear that the Appeal Panel met with the Social Work Team and the identified person for the purpose of the appeal and received submissions from them. The nature of these submissions or all of the relevant dates are not recorded in that part of the report that is unredacted. The Appeal Panel went on to record its conclusion at para. 6.0 of the Report as follows:
“6.1 The Panel cannot uphold the Social Work findings that [name of child] was subject to sexual abuse by [name redacted] as we agree with [name of psychologist] that the Garda Interview contaminated the evidence to such a degree that this contamination compromised the St. Clare's assessment process and validation.
6.2 In the Panel's view this is a very good example of the importance of joint Social Work/Gardai assessment of child abuse disclosures to minimise the risk of contamination of evidence in particular when dealing with very young children when a speedy focussed and skilled response to assessment is crucial in gathering evidence.”
. The report of the Appeal Panel was not immediately made available to the Applicant's parents. Following correspondence on their behalf it was finally furnished in redacted form on the 28 th of May, 2021.
. By letter dated the 27 th of July, 2021, a complaint was made on behalf of the Applicant in relation to the conclusion arrived at by the Appeal Panel, the matters on which it relied and the information available to it. It was requested that the appeal be re-opened and a review conducted. In particular, it was pointed out that the psychologist's report relied upon had been prepared in the context of the criminal trial and the DPP had commissioned its own report which rejected the psychologist's conclusions. It was indicated that neither report was ultimately relied upon...
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