O'T. v Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] IEHC 101 |
| Docket Number | [2015 No. 684 J.R.],[2015 No. 684 JR] |
| Court | High Court |
| Date | 15 February 2016 |
[2016] IEHC 101
[2015 No. 684 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Constitution – Art. 42A of the Constitution – The Children First Act 2015 – Practice & Procedures – O.84, r. 20 (2) (b) of the Rules of the Superior Courts (Judicial Review) 2011 – Inquiry into child abuse – Complaints of sexual abuse – Mandamus – Disclosure of information – Principles of natural justice
Facts: Following the determination by the respondent that the applicant had committed child abuse on the complainant and its decision to notify the third parties, pursuant to a complaint filed by the complainant in that regard, the applicant now sought leave to seek judicial review in relation to the process by which the said decision was made. The applicant also sought an order of mandamus for directing the appeal panel of the respondent to comply with the applicant's request for full disclosure in relation to the allegation of said sexual abuse of the child.
Mr. Justice Richard Humphreys refused to grant leave for judicial review to the applicant. The Court, however, held that its previous order restraining the publication of information identifying any persons referred to in the proceedings would continue on a permanent basis. The Court observed that though the level of threshold for grant of leave to seek judicial review was low, yet the applicant was obligated to make an arguable case, which in some cases required that the applicant must personally swear the grounding affidavit as envisaged under O.84, r. 20 (2) (b) of the Rules of the Superior Courts (Judicial Review) 2011. The Court opined that the Court was bound to balance the interest of the child enshrined under Art. 42A of the Constitution while exercising its discretion to grant leave. The Court opined that the requirements of natural justice were not absolute and that in emergency cases, an investigative agency could notify third parties without notice to a person against whom an allegation of child or sexual abuse was made. The Court found that in the present case, the applicant had neither sworn a personal affidavit nor exhibited any co-operation with the respondent in carrying out the inquiry and thus, the grant of leave on a hearsay affidavit would undermine the credibility of the substantial hearing.
On 19th October, 2011, the complainant in this case alleged that the applicant had committed acts of child sexual abuse against her in the 1970s and 1980s, when she was between the ages of 6 and 16 years of age. She made this allegation by way of complaint to Garda authorities. On 13th August, 2012, a subsequent complaint was made to the H.S.E. as the predecessor of the Child and Family Agency by the complainant's mother.
The H.S.E. took more than a year to investigate this complaint, and appears to have notified no-one about it, even though it would seem that the applicant was involved with the G.A.A. in the coaching of young people during this period.
On 6th June, 2013, the applicant's solicitor responded to a request for consent to take up his medical records, which was of some significance in investigating the factual background because his medical condition at the time of the alleged incidents was of relevance to an assessment of the veracity of the complaint. By letter dated 6th June, 2013, solicitors on his behalf refused to disclose his medical records, stating that ' our client has already provided details of the dates concerned and confirms that he received this medical treatment at Navan Hospital and care of his GP, Dr. Coleman who is no longer in practice. Mr. Scannell performed surgery on our client.'
On 2nd September, 2013, the H.S.E. made, what is described as a ' final determination' to the effect that it took the view that the applicant had committed child abuse, was a current threat to children and that third parties should be informed. Following this, the applicant was told that if the matter was not appealed, or if an appeal was made and was unsuccessful, third parties would be informed.
I am told that the applicant voluntarily ceased to carry out coaching of young people during the last two years, which would suggest that his decision was only taken after this determination by the H.S.E.
On 7th October, 2013, the applicant indicated that he would be appealing the determination.
The H.S.E. continued to seek responses from the applicant by letters dated 21st August and 19th September, 2014, which the applicant says is inconsistent with their having made a decision in 2013.
These letters were one part of significant correspondence that ensued over more than a two year period following the 2013 decision, culminating in a letter from the applicant dated 16th November, 2015, stating that he was seeking disclosure of certain material from the agency, failing which he would apply for judicial review as well as certiorari of the initial findings. The material sought included an unredacted version of the statement of complaint. The version furnished to date is heavily redacted in certain parts.
The chairperson of the appeal panel replied by letter dated 20th November, 2015, indicating that the applicant had not set out the relevance of the disclosure sought, and also that he had engaged with the appeal process and that seeking relief was premature at that point.
Mr. Damien Colgan S.C. (with Ms. Irene Sands B.L.) now applies on behalf of the applicant for leave to seek judicial review in respect of this process. Following a direction that the application be made on notice, I have also heard from Mr. Feichín Mac Donagh S.C. (with Mr. James Benson B.L.), following initial submissions from Mr. Birmingham, solicitor, for the respondent.
As stated in the letter of 16th November, 2015, the applicant seeks an order of mandamus directing the appeal panel to comply with the applicant's request for ' full disclosure' in relation to the allegation in issue, and what is described as an order of prohibition preventing it from dealing with the appeal until this issue has been determined, although in reality an order of the type sought is a stay or injunction rather than prohibition. As it is sought on an interlocutory basis only it is not a substantive relief.
The applicant also seeks an order of certiorari quashing the original findings in 2013, but this relief is obviously out of time given the three-month time limit that applies. There are not sufficient grounds to extend the time, even if an extension of time had been sought, which it was not.
The investigation of allegations of child abuse poses obvious policy and legal questions relating to important but conflicting rights. On the one hand, credible allegations must be examined. On the other hand, the mere making of an allegation is so potentially devastating to the life of the person subject to it that enormous care needs to be adopted in this process.
In the present case, the applicant is nearly 3 and a half years on from the making of an allegation against him, and the process remains ongoing. The agency has so far upheld the complaint but taken no particular steps to mitigate any risks involved, if there are any. As against that, the applicant is dissatisfied with the level of natural justice which he has received to date.
The Oireachtas has recently enacted the Children First Act 2015 which will impose upon tens of thousands of professionals throughout the State an obligation to report suspicions and allegations to the agency. If the time taken to process the allegation being examined in the present case is anything to go by, one could be forgiven for wondering what level of preparedness and capacity exists within the agency to address the huge increase in reporting that can be expected, and indeed what the impact will be on the High Court which can anticipate a potentially commensurate increase in applications for judicial review.
Four questions capable of applying to such future cases appear to arise in particular. Firstly, the amenability of the process to judicial review; secondly the level of natural justice required; thirdly the relevance of discretion and full disclosure to the intervention of the court and any necessary undertakings; and fourthly, the need for the applicant personally to swear the grounding affidavit.
At the level of broad principle, any executive or administrative act, or (save in relation to the Superior Courts) judicial act, and, in certain circumstances, a legislative act (although proceeding by plenary summons is frequently more appropriate), that has legal or even practical effect on the rights of an applicant (whether those rights be legal, constitutional, EU or ECHR in nature) is amenable to judicial review.
In relation to child abuse and child neglect investigations there appear to be two critical acts involved; the formation of an opinion that a complaint against an applicant is sustained, and the decision to notify a third party. I would be inclined to the view that, in principle, either or both of these decisions are amenable to certiorari, subject of course to their being sufficient grounds to do so. To that extent I prefer the analysis of O'Malley J. in J.G. v. Child and Family Agency [2015] IEHC 172 (Unreported, High Court, 11th March, 2015) para. 103 and to that of Barrett J. in A. v. Child and Family Agency [2015] IEHC 679 (Unreported, High Court, 4th November, 2015). In particular, the decision to notify third parties can have irreversible effects on the lives of all concerned. It is frequently impossible for a person to resume employment or a position, once that is 'temporarily' suspended,...
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