Igbinogun v Health Service Executive (HSE)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,Mr. Justice Cooke
• Judgment Date: 27 July 2010
• Neutral Citation: [2010] IEHC 306,[2010] IEHC 159
• Court: High Court
• Docket Number: [2009 No. 1228 J.R.],No. 925 J.R./[2007]
• Date: 27 July 2010

[2010] IEHC 159

THE HIGH COURT

[2009 No. 1228 J.R.]

Igbinogun v Health Service Executive (HSE)

JUDICIAL REVIEW

BETWEEN

MICHAEL IGBINOGUN

APPLICANT

AND

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

CHILD CARE ACT 1991 S3

Q (M) v GLEESON & ORS 1998 4 IR 85 1998/36/13707

R v HARROW LONDON BOROUGH COUNCIL, EX PARTE D 1989 3 WLR 1239 1990 3 AER 12 1990 1 FLR 79 1989 FCR 729

FAMILY LAW

Child protection

Investigation - Duties and powers of HSE - Power to disseminate opinion - Investigation while criminal proceedings in being - Whether HSE entitled to investigate child protection concerns while criminal proceedings in being - Whether such investigation usurpation of judicial power - Whether breach of fair procedures - MQ v Gleeson [1998] 4 IR 85 and R v Harrow London Borough Council ex parte D [1989] 3 WLR 1239 approved - Childcare Act 1991 (No 17), s 3 - Application refused (2009/1228JR - Hedigan J - 5/5/2010) [2010] IEHC 159

Igbinogun v Health Service Executive

Facts section 3 of the Childcare Act 1991 provides, inter alia, that

"(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

(2) In the performance of this function, a health board shall

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child…"

The applicant sought an order quashing the decision of the respondent to investigate whether any child protection concerns arose from the allegation that he sexually abused a 13 year old girl and for an injunction restraining it from proceeding with that investigation, pending the conclusion of criminal proceedings against him.

Held by Mr. Justice Hedigan in refusing the relief sought that

(1) the respondent had a statutory duty to investigate whether there could be a risk to a child and that risk had to be assessed. In so doing, the respondent must afford the applicant fair procedures.

(2) If the respondent came to the conclusion that there was a risk, it was under a duty to communicate that to an appropriate party.

(3) The respondent's role in conducting that investigation was not an administration of justice. It did not make any determination of guilt or innocence. Its role was distinct from that of the Director of Public Prosecutions. Its role was the protection of vulnerable children. The Director of Public Prosecution's role was the detection and conviction of criminals, including child abusers.

M. Q. v. Gleeson [1998] 4 I.R. 85 applied.

Reporter: P.C.

Mr. Justice Hedigan

1 1. The applicant in this case seeks an order quashing the decision of the respondent to investigate whether any child protection concerns arise from the allegation that the applicant sexually abused a 13 year old girl and for an injunction restraining it from proceeding with that investigation, pending the conclusion of criminal proceedings against the applicant. He also seeks an order prohibiting it disseminating any determination that it might make. The issues that arise in this case seem to me to be:-

2 (1) Does Section 3 of the Childcare Act1991, as amended, empower the respondent to investigate the veracity of the complaint against the applicant while there are criminal proceedings in being?

3 (2) If so, is this an administration of justice and therefore a usurpation by the executive of judicial power?

4 (3) Is the manner in which the respondent proposes to conduct this investigation in breach of the fair procedures to which the applicant is constitutionally entitled?

5 2. The relevant legislation is Section. 3 of the Childcare Act 1991, as amended. Section 3 reads:-

6 2 "3.- (1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

7 (2) In the performance of this function, a health board shall-

8 (a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

9 (b) having regard to the rights and duties of parents, whether under the Constitution or otherwise-

10 (i) regard the welfare of the child as the first and paramount consideration, and

11 (ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

12 (c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family."

13 3. The judgment of Barr J in M.Q. v. Gleeson [1998] 4 I.R. 85 has been opened to me by both sides. I consider a number of extracts to be very germane to the issues that arise in this case. At pp. 99-100:-

"I have no doubt that in the exercise of their statutory function to promote the welfare of children, health boards are not confined to acting in theinterest of specific identified or identifiable children who are already at risk of abuse and require immediate care and protection, but that their duty extends also to children not yet identifiable who may be at risk in the future by reason of a specific potential hazard to them which a board reasonably suspects may come about in the future. Subject to the proper exercise of its functions in the matter of complaints about child abuse and its duty to afford the applicant the benefit of fair procedures, I have no doubt that in the instant case, on the premise that it had taken appropriate steps to inform itself, the fourth respondent would have been entitled to form an opinion that the applicant was unfit for child care work and would have had an obligation under s. 3(1) of the Act of 1991 to communicate its opinion to the second respondent with a view to having the applicant removed from the social studies course of which he was engaged. The fourth respondent was not obliged to wait until a child or children had been actually abused by the applicant after he had taken up child care employment. On the contrary, on becoming aware that he proposed to embark on a career in child care and that he was attending a educational course to qualify for such work, the fourth respondent had an obligation to protect children who in its considered opinion would be at risk of abuse by the applicant should he carry out his stated intention of embarking on a career in that area. Such an obligation would require the communication by the fourth respondent of its opinion to the second respondent coupled with a request to remove him from the course in question."

"I accept counsel for the fourth respondent's submission that a health board has a child protection function which differs fundamentally from that of the prosecutorial function of the police and the Director of Public Prosecutions. In the former the emphasis is on protection of vulnerable children. In the latter, the objective is the detection and conviction of child abusers. There are many circumstances which may indicate that a particular person is likely to be (or to have been) a child abuser, but there is insufficient evidence to establish such abuse in accordance with the standards of proof required in a criminal or civil trial. For example, the abused child through fear, family pressure, age or mental capacity may be unable to testify against the abuser or, in the case of repeated physical injuries sustained by a child, there may not be sufficient evidence to rule out accidents and to establish proof of abuse in law by a particular suspect. However, there may be evidence sufficient to create, after reasonable investigation, a significant doubt in the minds of competent, experienced health board or related professional personnel that there has been abuse by a particular person. If such a doubt has been established then it follows that a health board cannot stand idly by but has an obligation to take appropriate action in circumstances where a person who the board reasonably suspects has indulged in child abuse is in a situation, or is planning to take up a position, which may expose any other child to abuse by him/her.

Arising out of its obligation to investigate allegations of child abuse made to it or of which it becomes aware, a health board is entitled to keep records of such allegations, whether substantiated or not, and, indeed, has an obligation so to do in the interests of professional competence."

"The health board's records in each case should include factors favourable to the alleged abuser. The board's assessment of the weight it attaches to each such allegation should be stated and should be objectively based. The purpose should be to create a fair, reasonable assessment of each complaint or finding about an alleged wrongdoer. This also necessarily entails reasonable investigation of each such complaint by the health board. In the ordinary course in serious cases the complaint should be put to the alleged abuser in the course of the investigation and he/she should be given an opportunity of responding to it. However, an exception in that regard may arise where the board official concerned has a reasonable concern that to do so might put the child in question in further jeopardy as, for example, where the abused child is the complainant. An obligation to offer an alleged abuser an opportunity to answer complaints made against him or her would arise in circumstances...