EE v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IEHC 777
• Court: High Court
• Docket Number: [2016 No. 578 J.R.]
• Date: 14 November 2016

BETWEEN

E. E.

APPLICANT

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

[2016] IEHC 777

[2016 No. 578 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Health – Practice & Procedures – Right to cross-examine complainant – Denial – Judicial review – Right to fair procedures

Facts: The present telescoped judicial review proceedings had been initiated by the applicant against the respondent for its refusal to permit the applicant to cross-examine the complainant. The applicant, being the biological father of the complainant, contended that the degree of allegation, namely, non-contact sexual abuse made by the complainant against him had a profound impact on his relationship with his other child and related child access issues, and thus, it became imperative for him to cross-examine the complainant. The respondent made various objections viz. inability to provide immunities to the witness, availability of an alternative by submitting questions to the complainant, and lack of statutory power.

Mr. Justice Richard Humphreys held that the applicant was entitled to cross-examine the complainant. The Court directed the respondent to set aside the First Instance Examination Report and permit the applicant to file an appeal before the Appeal Panel in case the applicant was not permitted to cross-examine the complainant within two months of the present judgment and order. The Court varied the terms of the stay previously granted, thereby stopping the respondent from further investigating the present case until the right to cross-examine had been afforded to the applicant. The Court held that it was essential to bring clarity in relation to the nature of allegations made by the complainant as there was marked difference between the non-contact sexual abuse and sexual abuse as the former was liable for various possible interpretations. The Court noted that the right to cross-examine was a constitutional right, and where the reputation and life of the applicant was at stake, it became mandatory to afford him that right, notwithstanding the intent of the respondent to bring justice to the complainant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

1 The central issue in this telescoped judicial review application is whether the right to fair procedures of a respondent to a Child and Family Agency child sexual abuse investigation includes the right to cross-examine, through counsel, a complainant of full age and capacity who is available but unwilling to attend for that purpose.

2 A comprehensive resolution of the proceedings involves a number of issues, which I can identify as follows:

(i). is there a right to cross-examine a complainant of full age and capacity in such an investigation?

(ii). are there practical objections such as to outweigh the right to fair procedures in such a context?

(iii). is this particular applicant disentitled from making this point for procedural reasons?

(iv). would the provision of cross-examination at this juncture provide an effective remedy in the light of possible concerns as to the nature of the investigation overall to date?

(v). to what extent is the finalisation of the investigation relevant to the applicant's family law proceedings?

Facts

3 The applicant was born in 1974 and is now forty-two years of age. He is the father of two children with two different mothers.

4 The applicant's older child was born in 1995. She alleges that the applicant engaged in certain inappropriate acts of a sexual nature (not involving any sexual contact) between 2001 and 2007 when she was aged between six and twelve, and when the applicant was aged between twenty-seven and thirty-three.

5 The applicant's younger child was born in 2004. While the applicant enjoyed a somewhat chequered relationship with his older child, he had a much closer relationship with the younger child. He was in a four-year relationship with the mother, from 2002 to 2006, which involved cohabitation; the child was born half-way through that relationship; and after the end of that relationship he enjoyed regular access to her during the week and overnight at the weekend.

6 On the 4th April, 2013, when the younger child was eight, the mother of that child made contact with the HSE as a result of a communication made to her by the older child in respect of the alleged inappropriate behaviour.

7 Around this time, the mother of the younger child withdrew her cooperation to overnight access, or indeed any unsupervised access. The applicant then had to bring an application for access before the District Court, which came before Judge Gerard Furlong on 13th March, 2013.

8 The applicant and his younger child, who enjoyed regular access up to the age of eight, have not had any unsupervised contact in the three and half years since that date. In the meantime, the child's paternal grandfather has died and the child was unable to see him prior to his death.

9 Judge Furlong's order gave ‘ liberty to father to issue a summons to vary immediately at the appropriate time’, which apparently envisaged a speedy resolution of the agency investigation to be followed by a further court application. There was no speedy resolution. The applicant brought a notice of application to vary access on 6th June, 2014, which was adjourned on 3rd October, 2014, and has been adjourned again from time to time thereafter.

10 The original complaint against the applicant was recorded as closed because the older child's mother did not respond to contact. However it was subsequently reactivated on the system on 13th June, 2013.

11 Ms. Deirdre Donnelly, team leader in the HSE as precursor of the agency, met the complainant on 26th July, 2013, and was given detail of the complaints of non-contact sexual abuse with some places, details and some information about times.

12 Most of the complaints referred to alleged masturbation by the applicant when the complainant was present. Certain elements of many of the complaints are suggestive of the proposition that the applicant was not seeking to have this witnessed by the complainant. For example, ‘ He would tell [the complainant] he was going to the toilet and to turn around and keep watch.’ On a later occasion ‘ She describes the same behaviour, that [the applicant] would ask her to turn around away from him and keep watch.’ On another date walking through a field there was some charged conversation allegedly followed by him ‘ again asking [the complainant] to keep watch’.

13 On a further date ‘ when she was in the back garden of her granddad's house she saw [the applicant] looking at her from the backroom and he had his trousers & boxers around his ankles and he was masturbating’.

14 Also ‘ on occasions [the applicant] spoke to her in a sexualised way’.

15 On another occasion when the applicant was cohabiting with the younger child's mother, the complainant ‘ opened her bedroom door and saw [the applicant] on his bed, across the landing (described as a tiny space) lying on his bed masturbating. [The complainant] feels that [he] did this on purpose as he would know she would see him’. This complaint clearly involves a good deal of interpretation as well as what was directly observed. What was observed was again not masturbation in front of the child – it was in the applicant's own bedroom.

16 On a later date in his own apartment she says that ‘ he put on a pornographic DVD, which she could hear but that there were no images on the screen’. Again, in the absence of her having had sight of the video, there seems to be a very large element of interpretation to this allegation.

17 Finally the applicant in his apartment was wearing boxers but ‘ was visibly erect … he held out the “shape” of his penis and said “fellas get paranoid about the size of their dicks, do you think its (sic) big or small”.’

18 The intake record of June, 2013 refers to the allegations as a ‘priority 3’ (the lowest out of 3). Ms. Donnelly describes these allegations dramatically in her sworn affidavit as ‘ a number of serious allegations which, if founded, could impact on the safety and well being of children generally’ including the other daughter (para. 9).

19 A written statement was provided by the complainant on 2nd August, 2013.

20 On 1st November, 2013, Ms. Deirdre Donnelly first notified the applicant of the complaint. The notification of the complaint is in one short two-sentence paragraph. All detail from the interview of 26th July, 2013, has been stripped from the formulation of the complaint in the letter. Ms. Deirdre Donnelly had a significant amount of further information which was not notified to the applicant prior to a meeting. Despite this, she swears in these proceedings that she ‘ wrote to the applicant and put him on notice of the allegations made’ (para. 13).

21 The applicant was invited for interview on 6th November, 2013, which he attended with his sister and without lawyers. The letter inviting him to interview did not refer to his entitlement to bring a lawyer and said he could bring ‘ a friend or family member as a support.’

22 The letter was dated the 1st November (a Friday) so presumably was received on the following Monday (4th). It invited the applicant to interview on Wednesday morning 6th November, 2013, a period of two days' notice.

23 At that interview he was furnished with a written statement of the allegation, despite the fact that the HSE had had the written statement for over 2 months prior to the meeting. Yet it chose to give the applicant no advance notice of the detail of that statement prior to interviewing him.

24 At the interview, but only at that point, the applicant was ‘ advised he could reschedule the meeting if he wished to have further time to consider the details.’ He declined to do this.

25 At the interview the applicant...