F.A. v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 03 May 2018
• Neutral Citation: [2018] IEHC 806
• Court: High Court
• Docket Number: [2017 No. 165 JR]
• Date: 03 May 2018

[2018] IEHC 806

THE HIGH COURT

JUDICIAL REVIEW

MacGrath

[2017 No. 165 JR]

BETWEEN

F.A.

APPLICANT

AND

CHILD AND FAMILY AGENCY, U.R.

AND

S.M.

RESPONDENTS

JUDGMENT of Mr. Justice MacGrath delivered on the 3 ^rd day of May, 2018.

1 The applicant is a married father of four adult children. He was employed by the Health Service Executive as a care assistant working with adults with intellectual disabilities. The applicant and his wife have fostered several children since 2007, one of whom made an allegation of sexual impropriety against the applicant which is said to have occurred while she was in their care. The allegation was made a number of months after the child had left their care and was placed elsewhere.

2 The first named respondent, who investigated the allegation, has statutory authority and responsibility for the care and protection of children and the promotion of child welfare.

3 The second and third named respondents are members of the appeal panel established by the first respondent to conduct an appeal from the decision of the first respondent that the allegations of sexual impropriety made by the child against the applicant were founded. The appeal panel was appointed pursuant to the provisions of the first respondent's “ Policy and Procedures for Responding to Allegations of Child Abuse & Neglect”, (September, 2014), para. 29.4 of which describes it as being the responsibility of the area manager in consultation with the regional director of services to arrange the appeal panel, appoint a chair for the panel and provide terms of reference. The appeal panel which was convened in this case comprised of two individuals, the second and third named respondents, both of whom are experienced social workers with considerable expertise in child protection and welfare matters.

4 In this application for judicial review, the applicant seeks the following orders:-

(i) an order of certiorari quashing the determination of the second and third named respondents (therein and hereinafter referred to as “the appeal panel”) appointed by the first named respondent, that the allegation of sexual impropriety made by a named third party was “founded”;

(ii) an order of certiorari quashing the determination of the appeal panel concluding that the procedures adopted by the first named respondent in response to the allegations made by a named third party against the applicant were appropriate;

(iii) a declaration that the manner in which the respondents and each of them dealt with the allegations of sexual impropriety by a named third party against the applicant breached his right to fair procedures, natural and constitutional justice, and his constitutional right to a good name;

(iv) a declaration that in failing to interview the third party complainant about her allegations subsequent to her initial complaint and in failing to put to the complainant the applicant's position on the said allegations, the respondents acted unreasonably and unfairly and in dereliction of their statutory duty;

(v) a declaration that in failing to accord the applicant a full appeal on the merits that the respondents have failed to vindicate the applicant's right to his good name and constitutional fair procedures;

(vi) if necessary, an order remitting the matter back to the first named respondent.

5 Further reliefs were sought in the originating notice of motion including a declaration that the first respondent lacked vires or statutory entitlement to make findings that allegations of sexual impropriety against the applicant were well founded, and that the respondents were guilty of inordinate and blameworthy delay in the manner in which they dealt with the said allegations, including the manner in which they dealt with the applicant's appeal, to such an extent that the applicant's rights under the Constitution and the European Convention on Human Rights were breached. At the outset of the hearing, counsel for the applicant advised that those reliefs, which were sought in para. (iii) of the originating notice of motion ( vires), and para. (vii) (delay) were not being pursued.

Background

6 The applicant, F.A. is a care assistant and works for the HSE. Between 2007 and 2014, F.A. and his wife V.A. fostered seventeen children. One child, N.T., who was born in 1999 was placed in foster care with the applicant and his wife between March, 2009 and December, 2013. On Wednesday, 25 ^th June, 2014, N.T. made allegations of sexual impropriety against the applicant. These incidents were alleged to have occurred while she was living with them in or about the summer of 2013.

7 The allegations were made by N.T. during a car journey with her social worker A.B. who was taking her to an appointment for a counselling session with a therapist in CAMHS (Child and Adolescent Mental Health Services). This appointment had been arranged following the revelation by a friend of N.T. earlier that morning that N.T. had threatened to self-harm the previous evening. N.T.'s friend had been upset and expressed concern. A meeting therefore had been arranged with N.T.'s social worker, A.B.

8 When A.B. collected N.T. at 11.10 a.m. she found N.T.'s to be of low mood and very tired. N.T informed A.B. that she had been angry and had threatened to self-harm. On inquiry as to what may have triggered the thought of self-harm, N.T. stated that “I don't know exactly what it is, it's a lot of stuff”. She was happy with her then placement and expressed concern that she might have to leave it.

9 N.T. alleged that when she was thirteen and living in the applicant's home, he sexually harassed her. She stated that the applicant called it tickling, but she alleged that he had touched her private areas both inside and outside her clothing. N.T confirmed to the social worker that the applicant's wife was unaware of the incidents. One particular incident was alleged to have taken place when her social worker was on the premises. She alleged that the applicant came into her bedroom, woke her up by tickling her and that he touched her inappropriately. According to N.T., when she went downstairs, reference to being woken by tickling was made, and that when the social worker left, V.A. began shouting and swearing at her. The applicant is also stated to have shouted back at her saying that he did not touch her. A.B. prepared a memorandum which recorded that “according to [N.T.] [F.A.] continued to deny tickling her and this developed into a ‘big argument’” and that after the argument, the applicant came into her bedroom and expressed sorrow for lying to his wife. N.T. informed the social worker that following this she self-harmed.

10 A.B. commended N.T. for making the disclosure and told her that she was required to report it to the Child & Families Team, who would then conduct an investigation. While N.T. appeared to be satisfied with this, she expressed concern about what the applicant's family would think of her. It is recorded that N.T. told the social worker that nobody would believe her as “I was known as the liar in that house”.

11 N.T. met her counsellor shortly after midday. A.B. also met with the counsellor and informed her of N.T.'s disclosure and threat of self-harm on the previous evening. A.B. satisfied herself, however, that N.T. was not at the risk of self-harm nor was she actively suicidal. N.T. described herself as being relieved at making the disclosure.

12 In a replying affidavit sworn on behalf the first named respondent on 13 ^th June, 2017, L.I., who is a principal social worker, since retired, but who had been employed by the Child and Family Agency, avers that A.B. was an experienced, professionally qualified social worker, competent in interviewing and that the account recorded by her was of sufficient concern and provided sufficient grounds to justify further assessment of whether there was a potential risk to children.

13 On the same day, A.B. advised her team leader P.R. of the allegations. P.R. completed a standard report form to the Principal Social Worker, Child Protection and Welfare. In the body of that report the following is recorded:-

“Child in care – [N.T.] reported to social worker [A.B.] today that she had been ‘sexually harassed’ by previous foster carer [F.A.]. [N.T.] disclosed that [F.A.] used to ‘tickle her’ – he would touch her breasts and vaginal area both inside and outside her clothes. This started when she was 13 years old. [N. T.] stated that this ‘hurt’ her and was ‘sore’.

[N.T.] moved from her foster placement with [V.A. and F.A.] in December 20133.”

14 The fostering team leader, A.L., was also made aware of the allegations on the same day. She in turn arranged to contact V.A. by telephone and advised her of the allegations and arranged an appointment with F.A. and V.A. for later that evening. L.I. avers that the purpose of this meeting was to advise them of the details of the alleged abuse and of the procedures to be followed in the assessment of the allegations.

15 Later that evening, A.L. attended at the applicant's home and informed him and his wife that “[N.T.] has alleged that ‘[F.A.] sexually harassed me’ and that he touched her genitalia”. L.I. avers that the full details were not disclosed to the applicant and his wife at that time as it was believed that providing full details could jeopardise a garda investigation, if that were to take place. A letter had been prepared by A.L., dated 25 ^th June, 2014 addressed to the applicant and his wife and it was brought to the meeting.

16 The applicant and his wife were also informed that the allegation had been referred for independent review by a social worker attached to the team who was based in the same geographical area. The letter which was given to them stated as follows:-

“At the time of writing, I am currently fulfilling the role of Link worker to you and am therefore required to inform the following...