J. v Child and Family Agency (historical child sexual abuse allegations)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 19 October 2020
• Neutral Citation: [2020] IEHC 464
• Docket Number: 2018 No. 906 J.R.
• Court: High Court
• Date: 19 October 2020

BETWEEN

J. (A PERSON SUBJECT TO AN ALLEGATION OF ABUSE)

APPLICANT

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

[2020] IEHC 464

Garrett Simons

2018 No. 906 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered on 19 October 2020

INTRODUCTION

1 One of the statutory functions of the Child and Family Agency (“ the Agency”) under the Child Care Act 1991 (as amended) is to promote the welfare of children who are not receiving adequate care and protection. This statutory function has been interpreted in a number of judgments of the High Court as imposing an obligation on the Agency to inquire into complaints of child sexual abuse (including historical abuse). The Agency has sought to ensure that such inquiries comply with fair procedures by publishing a detailed “policy and procedures” document to guide social workers in carrying out such inquiries. This document is dated September 2014. It appears that a revised version of this document has recently been prepared, Child Abuse Substantiation Procedure, but its introduction has been delayed until next year (2021).

2 The applicant in these judicial review proceedings is a person against whom an allegation of historical child sexual abuse has been made. For ease of exposition, the applicant will be referred to as “ the alleged abuser”, and the person making the allegation will be referred to as “ the complainant”.

3 The facts of the present case illustrate the very real practical difficulties which can arise in attempting to inquire into child sexual abuse which is said to have been perpetrated decades earlier. The incidents the subject-matter of the inquiry impugned in these proceedings are said to have occurred some fifty years ago, during the summer of 1969. Both the complainant and the alleged abuser are now aged in their sixties.

4 The complainant first notified a complaint to the Agency in December 2013. (The making of the complaint predated the introduction of the “policy and procedures” document in September 2014). A complaint was made to An Garda Síochána shortly thereafter, and the Director of Public Prosecutions ultimately directed that no charges be brought against the alleged abuser. The Agency closed its file in respect of the complaint on 13 September 2016, only to reopen it subsequently. The further inquiry commenced in earnest in November 2017.

5 These judicial review proceedings seek to challenge a decision issued by the Agency on 26 July 2018 (“ the impugned decision”). The impugned decision is to the effect that the Agency had reached a “provisional conclusion” that some contact of a sexual nature had occurred between the alleged abuser and the complainant during the summer of 1969. The decision-letter outlined the next procedural steps, including the right to an appeal. The decision-letter also indicated that if the outcome of a social work assessment (or any appeal) concluded that the concerns were “founded”, and that the alleged abuser poses a potential risk to children, then the Agency may need to take steps to disclose that information to other relevant third parties, such as, his employer, his family or any other relevant person.

6 The alleged abuser instituted these judicial review proceedings on 2 November 2018. The Agency has now conceded that the impugned decision is invalid and should be set aside by this court. The parties are, however, in disagreement as to what consequences flow from this concession. The Agency submits that it should be entitled to continue its inquiries against the alleged abuser. Conversely, the alleged abuser seeks orders restraining any further inquiry into the events alleged to have occurred in the summer of 1969.

PROCEDURAL HISTORY

7 The parties, very helpfully, submitted an agreed chronology of events to the court on 18 August 2020. A summary of the key events is set out below. Before turning to that summary, however, it should be noted that no affidavit evidence has been filed by the Agency explaining the nature of the assessment carried out during the period December 2013 to September 2016. The most that has been done is that documentation in the form of what appear to be case notes has been put before the court by way of exhibits to affidavits. Of course, the mere fact that a document is exhibited in an affidavit does not, in and of itself, turn that document into admissible evidence ( RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 2 I.L.R.M. 273).

8 The social work team in [location redacted] was first notified of a complaint of historical child sexual abuse by the complainant in December 2013. The complainant had been interviewed by a social worker on 18 December 2013. The social worker prepared a detailed note of her meeting. The disclosed child sexual abuse is summarised as follows. (Certain locations and personal details have been redacted by the court so as to protect the anonymity of both the complainant and the alleged abuser).

“• When aged 9, nearly 10 years of age in 1969 [the complainant] was doing odd jobs in a Hotel [details redacted]. At the time a young man or teenager was working there also. (He later named this individual as [name and address of alleged abuser redacted]).

• He guesses that [the alleged abuser] was about 16 or 17 years of age at that time.

• [The complainant] told me that he was lured into bed (in the hotel), he cannot recall how this happened, but he recalls that they were naked and ‘playing with each other’. He recalls that this happened on 3 separate occasions not on the same day but around the same time, i.e. that summer. [The alleged abuser] told him afterwards not to say no more about it to anyone. [The complainant] has not told his family.

• He remembers asking [the alleged abuser] what a date was. [The complainant] told me that no force was involved, that it was nothing vicious, that he thought it was harmless. He now has started thinking that what happened then may have played a part in him having a mental breakdown aged 23 and having had ongoing mental health issues.

• He did on some occasion ‘it just came out of me’, he referred to 2 occasions when he 1) told [the alleged abuser] that he had abused him, after he taunted [the complainant] over something. 2) during a period when he [the complainant] was not well he shouted across the road at [the alleged abuser] that he is a paedophile. On this occasion [the alleged abuser] told him to go away and that he was looking for money.

• [The complainant] believes that [the alleged abuser] knows that he did wrong.

• [The alleged abuser] has adult children and possibly grandchildren.

• His wife works here in the [details redacted].

• [Personal details redacted]

• [The complainant] does not want to ruin [the alleged abuser's] life, but feels if he did him wrong and if he ruined his life he would like to be compensated.

• He understands that our role is in establishing if any other children may be at risk from [the alleged abuser]. [The complainant] at this point does not wish to make a formal complaint to gardai, but he has no problem with social work talking to [the alleged abuser] ‘because I'm telling the truth’.

• [The complainant] asked some questions about if this was classed as abuse and if this would have done him harm. I told him that even if he feels there was no force involved that he was of an age where no young child should have been interfered with in that way and that this is abuse. I advised him that I cannot assess what damage may have been done to him that he needs to talk to a counsellor about this. I told him that children in general are likely to be seriously affected by such abuse and that we need to ensure that this is not ongoing.

• [The complainant] has on and off spoken to counsellors about his mental health but he doesn't really want to pursue this.”

9 It should be noted that the making of the complaint predated the introduction of the “policy and procedures” document in September 2014.

10 The complainant also made a statement to An Garda Síochána in January 2014. The Garda file was subsequently sent to the Director of Public Prosecutions. The Director ultimately notified An Garda Síochána that a decision had been taken not to institute criminal proceedings. The precise date upon which this decision was communicated to the Agency is not evident from the papers, but it appears to have been notified by October 2015 at the very latest.

11 It appears from the exhibited documentation that the Agency had written to the complainant on a number of occasions seeking to follow up on the complaint but received no response. It is not apparent what the intended purpose of the follow-up meeting was to be. In particular, it is unclear whether it was intended to interview the complainant again or whether the purpose of the meeting was to provide support to the complainant. There is a reference to the complainant having mental health issues and needing to be facilitated with a meeting (handwritten note of 20 January 2014). There is also a case note dated 21 January 2015 which states as follows.

“The most recent file note indicates contact between Gardai and the social work department but the exact nature of this contact is not clear. For instance did [the complainant] make a complaint to the Gardai? There is a question mark regarding [the complainant's] mental health which necessitates a 2 ^nd interview with him.”

12 At all events, on 13 September 2016, the Agency wrote to the complainant in the following terms.

“I refer to your contact with this department in December 2013. I have recently reviewed your file and I note that you were written to on the 23 ^rd January 2014 and again on the 30 ^th September 2015 with a view to following up on your complaint. I can find no evidence on the file that you responded to these letters.

I am writing to advise you that a decision has been...