DP -v- KS (Access Variation and Burden of Proof for Sexual Abuse)

• Judge: Halpin J.
• Judgment Date: 18 May 2009
• Neutral Citation: [2009] IEDC 3
• Case Outcome: Approved
• Date: 18 May 2009
• Court: District Court (Ireland)

[2009] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

DP

APPLICANT

-AND-

KS

RESPONDENT

THE GUARDIANSHIP OF INFANTS ACT 1964 — SECTION 12

THEC OURTS (NO. 2) ACT, 1986 — SECTION 5

IN THE MATTER OF CHILD

18 May 2009

1. An Application on Notice by the father of infant Child 1 came before the District Court on 8 May 2009 seeking a Variation of Ac cess

Order as well as a Complaint c oncerning a breach in respec t of an alleged failure/refusal to comply with Acc ess Orders of this Court.

The Respondent, t he mother of Child 1, contest ed the Application and Complaint. Both Fat her and Mother were legally represented.

2. The Applicat ion to vary t he Ac cess is made pursuant t o sec tion 12 of the Guardianship of Infants Ac t, 1964 and the separate

Complaint is made pursuant to sec tion 5 of the Courts (No. 2) Ac t, 1986. The latter matte r was withdrawn, namely the Complaint,

and acc ordingly I shall deal with this matter at t he conc lusion of the Variation Applicat ion. It has taken me quite some time to

consider this matter but having done so I am now in a position to deliver the dec ision of this Court. Before so doing, it is nece ssary to

indicate, or at least out line in summary, the methodology which I have chose n. The ev idence in this matter c omprises of bot h

documentary and oral evidence. Although, t his Application seems to be one to va ry acc ess, it has its own f eatures of complexity

which I need to set out . Matters of some delicac y have arisen as a result of allegations of sexual abuse being perpetrated by t he

father on t he infant who is t he subject of t he Acc ess Application. Acc ordingly, these allegations must be addressed and det ermined

by this Court before considering Acce ss. Also, I fee l it is necess ary to set out most, if not all, the e vidence t hat has been given in

this cas e. Therefore, it is going to t ake me some time to set this out and then I will have to record what I believe t he law to be in

respect of the decisions I am taking. Thus, I have split t he decision into a number of discret e parts st arting with an introduct ion and

then addressing the various parts so as t o simplify and amplify what would otherwise be a decision which would be hard t o follow. I

hope I have ac hieved this.

1. Introduction

3. Before the Hearing commenced, t hree documents were handed into the Court f or consideration. They were as f ollows:

(a) Assessment Report of t he sexual abuse unit;

(b) Lette r dated 23 February 2009 from the HSE’s solicitors to the solicitor for the Respondent; and

(c) HSE Soc ial Worker’s Report dated 7 Ma y 2009.

4. I had the opportunity of reading the Assess ment Report prior to t he Hearing. One can see that t here is a c aveat attac hed to this

report restricting sight t hereof to parties to w hom it refers but in the instant case the Applicant, Father had read a nd considered the

report in the presence of his Solicitor. Given that there exists suc h a caveat and such being nec essary to as to e nsure that all

children who confide t heir experiences t o this Unit continue to hav e the c onfidence, trust, and be lief in this procedure and obviating

the fear of children that a cc ounts would be divulged to all and sundry, it is w ith the great est c are and sensitivity that I f ind myself

divulging only that which is nec essary and relevant c oncerning aspec ts of the c ontents of the Assessment Report. I say t his because

the recipient of the As sessment Report is advised that:

“[t]he Unit is an independent spec ialist c hild sexual abuse unit, whic h provides both an asses sment and therapy

service t o children and families residing in County 1, County 2, or County 3.

Assessments are therapeut ic in nature and are c onducte d in order to provide an independent opinion as to whet her

or not a c hild has been sexually abused. This report c onstitute s a summary of t hat assess ment including the opinion

arrived at, basis for same, and any t herapeutic rec ommendations identified through the asses sment process. It

should be noted that the Unit does not make recommendations about c ustody or ac cess arrangements. Whilst this

report may contain relevant information about the a lleged perpetrator, the ass essment and this report do not

constit ute a Risk Assessment of t he alleged perpetrator, a Vic tim Impact Report, or any other such assessments

which would be more appropriately c arried out under the Health Service Executive’s mandate (e.g. s ect ion 20. etc).

This report is stric tly private and confidential and is for t he information of the professional to w hom it is addressed

and which professional/entity/organisation retains an obligation of c onfidence. It should not be r eleased and/or

shown to part ies to whom it refers, or t o any other person. T his report must be solely retained by t he agency to

whom it is addressed. This does not preclude detailed discussion of the c ontents of the report with the client, for

the purposes of consultation and/or t aking instruction. Parents who w ish to read the report should be directed t o

contac t the Unit to arrange an appointment. This report should not be c opied, disseminated or used for any other

purpose whatsoever wit hout the c onsent of the a uthor. the Unit c an take no responsibility whatso ever for breaches

in confidentiality by t he recipient if t he report is made available to any other person, inc luding the family in

question. It is also understood that s hould this report be included in the Book of Evidence, it would at t hat stage be

made available to the alleged perpetrator’s legal representatives, but t hat at no time would the alleged perpetrator

retain a copy of t he report.”

It is also nec essary to convey this health warning or caveat because it c learly shows the independence of t he Unit in relation to the

allegations and the investigat ion thereof and gives one c onfidence in that all parties are t reated equally and fairly in the asse ssment

process. Also a dopting this cav eat whic h engenders the c onfidence of the c hild will allow the c hild to speak freely and openly e ven if

the evidenc e is weak and/or the perpet rator denies the ac cusations, otherwise t he child could easily fee l betrayed and exposed t o

ridicule. I will return to t he c ontents a nd findings of this assessment later.

5. The Let ter date d 23 February last, as aforementioned at paragraph 3(b) above, stat ed that the s olicitor’s for the HSE were:

“instructed t hat the HSE became aware that Father was co nvicted f or possessing Child Pornography and was

placed on t he Sex Offenders Register in 2005.

We are instruct ed that subsequently Child 1 his daughter made an allegation of sexual abuse against him. This

allegation was referred to t he sexual abuse unit for investigat ion. The Unit is independent of the HSE. They offer

treatment and support as required to the c hildren from their multidisciplinary team of professionals. We understand

they c oncluded that the allegations were credible. They notified the HSE of t heir findings to allow the HSE to

comply with their stat utory duty under t he Child Care Act t o protec t children in their area.

The HSE cont acted both F ather and Mother and rec ommended that it would not be in Child 1’s best interest s for her

to have unsupervised acces s with her fat her, pending an assessment of risk. Neither Father nor Mother not ified the

HSE that t here were Court orders in place regulating acc ess.

We are instruct ed that Father is no longer willing to meet with the HSE to allow them conc lude their assessment as

to whet her he may pose a risk to his daughter”.

6. The Soc ial Worker’s Report date d 7 May 2009 under the penmanship of Social Worker 1 outlines the involvement of the HSE and

state s that :

“[t]he HSE has been involved with the family on an ongoing basis since February 2008 when Child 1 made a

disclosure of c hild sexual abuse by her f ather. Child 1 was referred to t he Sexual Abuse Unit for assessment of the

allegations. The Unit c ompleted their assessment and conc luded that Child 1 was sexually abused with Child 1

naming her father as t he perpetrator of this abuse.

I was allocat ed to t he c ase to follow up on the rec ommendations of the s exual abuse unit and to asse ss the

potential risk Father may pose given the a llegations of child sexual abuse.

Child 1 is currently awaiting therapy with an instit ute and it is expected t his will become available to her in the

coming weeks. Father has not had acc ess with his daughter since t he allegations were made last year. T he HSE has

advised both Mot her and Father t hat there s hould be no contac t between Fa ther and Child 1 until the sexual abuse

unit assessment was c ompleted. Neither parent advised the HSE that t here was a Court Order regarding acc ess at

the time. Prior to this Fa ther was having supervised ac cess with Child 1 following his conviction for possess ion of

Child Pornography in 2005. Child 1 resides with her mother in County 1 and there are no current c hild protection

conc erns for her. Child 1 has not seen her fat her for some time and Father is anxious to resume contac t with his

daughter. The HSE is c urrently making its assessment of any potential risk that F ather might pose to c hildren. The

HSE has met with Father and he has cooperat ed with our investigation. F ather has advised t hat he understands

that a ny cont act with Child 1 would be supervised and has given a c ommitment t o this eff ect . Fat her was already

having supervised contac t with Child 1 prior to Child 1’s allegations and is aware that any future c ontact would

need close s upervision.

The HSE is cont inuing in its as sessment of Fat her and it is expect ed that this would be c ompleted in the coming

weeks.

The HSE believe that if the Court were to a llow acc ess betw een Child 1 and her father acc ess should be supervised

at all times by a person who is aw are of the nature of t he allegations against Fat her.”

2. Background

7. Although Mother was born in County 1, at a very early age she and her fa mily moved to County 2 and s he spent most of her

childhood and teenage ye ars there c ompleting her formal education and commencing University. Mot her comes from a very close-knit

family who are ve ry supportive of her. Her family have return to the f amily home in County 2.

8. It is c ommon case t hat she a nd Father met on holidays when she w as aged 20 and he was 25 both having worked in the same

company. Some time aft erwards, they c ommenced a relationship and later moved in together. Some one-and-a- half years later, t hey

married and that w as in or around 1999. The initial early period of the marriage was a blissful affa ir. When Mother became pregnant

with Child 1 it was as a result of planning and she was ve ry happy because that is what was always want ed. Acc ording to Mot her,

Father shared t hat view but she perceived him to bec ome controlling and manipulative. She stat ed that “he made me feel like shit.”

Remarks such as “being over weight” and “having to lose weight” were made to her by Fat her on a somewhat regular basis. Mother, in

giving her personal history to the sexual abuse unit, sa id that her friends c ommented to her t hat t hey notic ed how Fat her was

“consta ntly putting her down.”

9. In 2005, Father was c onvicted of posses sion of Child Pornography and was placed on t he Sexual Offenders’ Register. In relation to

the investigat ion leading up to the c onviction, Mot her gave a det ailed acc ount t o the sexual abuse unit of her experience of t his. The

Report states :

“[w]ith regard to Fa ther’s convic tion Mother st ated t hat on t he 23rd March 2002 the Gardaí had raided her family

home. She described how things had not be en going well between she and F ather for some time prior and that they

had a major row on the 22nd March 2002 when Father had gone out drinking with a neighbour. Mother desc ribed

how her doorbell had rung at 8:00 a.m. on the morning of the 23rd March 2002 and there w ere four detec tives with

a search w arrant for the house. Mother stat ed that at this stage Father t old her what he believed t he guards were

looking for. Mot her described how this was a tot al shock for her…

Mother desc ribed how, immediately af ter the raid, Father had left the house fo r a short period of time. She sta ted

that his f amily were putt ing her under pressure to take him back and that he was also making an effort to be a

better husband and f ather. Mother st ated she was unce rtain whether or not she felt she c ould reconc ile with her