TR v Child & Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 27 July 2017
• Neutral Citation: [2017] IEHC 595
• Court: High Court
• Docket Number: [2015 No. 551 J.R.]
• Date: 27 July 2017

BETWEEN

T. R.

APPLICANT

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

[2017] IEHC 595

[2015 No. 551 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Family – The Child Care Act 1991 – Child abuse – Initiation of investigation – Judicial review – Fair procedures – The Children Act 1997 – Admissibility of evidence of minor in sexual abuse cases – Policy and Procedures for Responding to Allegations of Child Abuse and Neglect (September 2014) (‘the 2014 Procedure’).

Facts: The applicant by way of the present application sought an order to prohibit the respondent from continuing an investigation of allegations of sexual abuse made by the complainant against the respondent. The applicant argued that since the outcome of the investigation carried out by the respondent would have a devastating effect on the family life of the applicant, the respondent must apply fair procedures while conducting that investigation.

Mr. Justice McDermott refused to grant the desired relief to the applicant. The Court held that there were enough safeguards mentioned under the 2014 Procedure and the Children Act 1997 which ensured that the persons accused of child abuse were afforded fair procedures in conformity with the Constitution. The Court noted that in the second state of assessment, the applicant would be interviewed and questions would be put to the complainant to further substantiate or verify the allegations. The Court, therefore, opined that at each step of the investigation under the 2014 Procedure, the applicant would be given opportunity to present his case and thus, there was no violation of the applicant's constitutional rights.

JUDGMENT of Mr. Justice McDermott delivered on the 27th day of July, 2017

1 This is an application by way of judicial review in which the applicant seeks to prohibit the respondent from continuing an investigation into his behaviour and to prevent it from carrying out any determination of the veracity or credibility of accusations of sexual abuse made against him by C.D., his wife's niece, or from indicating to any third party that the applicant poses a risk to children and/or has sexually abused or may sexually abuse a child. The respondent is the statutory body charged with responsibility for the protection of minors pursuant to the Children Act 1991.

2 The applicant is employed as a professional chauffeur. He is married to A.B. and has three children, E. a girl (then aged 14), F. a boy (then aged 12) and G. a daughter (then aged 7).

3 The applicant was informed by letter dated 5th February, 2015 that the respondent intended to investigate a retrospective allegation of child sexual abuse by C.D., alleged to have been committed by him when she was a minor. C.D. is now an adult. The letter stated that the writer, Mr. Mc Larnon, a qualified social worker employed by the respondent, was tasked to carry out an assessment of these allegations. The allegations were outlined and two sets of notes of interview held with C.D. dated 16th April, 2013 and 30th October, 2013 were enclosed. It was alleged that the applicant had sexually abused C.D. between the ages of eight and fourteen or fifteen years.

4 The applicant was informed that if the assessment made by the writer concluded that the allegations were ‘Founded’ and that he posed a potential risk to children he would be given an opportunity to appeal that conclusion. He was also informed that if the outcome of the assessment reached that conclusion the respondent might need to take steps to disclose that information to other relevant third parties such as his employer, members of his family and any other relevant person. He would be given advance warning of any such intended disclosure. If he declined to engage in the process the assessment would continue without his response and a professional determination would be reached. He was assured that ‘no opinions had been formed in respect of these allegations and my responsibility now is to ensure that you have an opportunity to answer the allegations’. The letter stated that the assessment would be conducted in accordance with fair procedures at all times.

5 The two notes of interview included with the letter stated that a complaint had been made to An Garda Síochána concerning these allegations in May 2012. The second interview clarified some aspects of the first. C.D. complained that she was first sexually abused in her mother's home during a party. She then alleged that she was repeatedly abused at the home of the applicant and his wife A.B. when visiting from the age of eight in the basement of the house where she slept. She claimed that the abuse ended when she was fourteen to fifteen years old, when she informed the applicant's wife. It was said that his wife put the applicant out of his then home but that he was later allowed to return following the taking of a polygraph test ‘to prove his innocence’.

6 An initial investigation was commenced which was also challenged by way of judicial review in T.R. v. the Health Service Executive and the Child and Family Agency (Record No. 2014/160 J.R.). By order made 7th November, 2014 (Kearns P.) these proceedings were struck out:-

‘The court being informed … that the inquiry the subject matter of the within proceedings will be terminated forthwith (without prejudice to the Respondent's right to commence a new inquiry arising from the same allegations).’

7 During the first investigation and in the course of those proceedings and correspondence concerning the second investigation following the conclusion of the first set of proceedings, it was indicated to the applicant that the investigation would now be carried out in accordance with the procedures set out in Policy Document ‘ Policy and Procedures for Responding to Allegations of Child Abuse and Neglect (September 2014)’ (‘the 2014 Procedure’).

The 2014 Procedure

8 The Procedure is divided into four sections. Part A outlines the general principles under which the management of allegations against individuals accused of abuse is organised. Part B concerns the responsibility of social workers for the quality of their assessment. It sets out policy protocols governing the responsibility to respond to reports of child abuse where the complainant and the alleged abuser reside in different social work areas. It also provides guidance in respect of anonymous reports and the use of forensic assessment which are not relevant to these proceedings. Part C contains the operational procedures to be followed by the social work office when investigating allegations against an individual who may pose a threat to children. This part contains details of the appeal procedure that should be followed when a person who has been the subject of an adverse assessment by the social work office under these procedures is dissatisfied with the conclusion reached and any subsequent decisions. Part D provides guidance in respect of the communication of this policy and procedure.

9 Part A of the Procedure provides inter alia that the general principles set out therein are to be applied by Children and Family Social Work Services in the management of the response to allegations of abuse whether reported by a child or an adult. Any individual against whom allegations of abuse are made has a right to fair procedures. That right may need to be secondary to the protection of children at risk. Paragraph 1.4 states that:-

‘Conclusions following assessment by a social work office are based upon the balance of probability. Social work services have a different function to An Garda Síochána and the Office of the Director of Public Prosecutions (DPP) who seek to prove beyond reasonable doubt that a criminal offence has been committed.’

10 Para. 1.5 provides that:-

‘Models of assessment that might be applied in the process of operating this policy and procedure are either part of current social work practice in regard to the assessment of child abuse, or, will be provided as learning and the provision of assessment tools as part of the professional development programme provided to social work staff members by the Child and Family Agency.’

11 It states that the Child and Family Agency must ensure that all persons against whom allegations are made are treated fairly and due consideration given ‘to their right to know who has made the allegations, the nature of the allegations and the right to reply to them’. Paragraph 2.2.2 states:-

‘No final conclusion in respect of the allegations should be made until such time as the alleged abuser has had the opportunity to reply and participate in the social work assessment process.’

12 Paragraph 2.4 acknowledges that an increasing number of adults were disclosing abuse that took place during their childhoods. If these occurred, it is essential to establish whether there is a current or future risk to any child who may have had contact with the alleged abuser.

13 Paragraph 3.3.1(g) states that one of the key principles informing decision making is based on the duty to ensure that any action taken in relation to an abuser is done in accordance with natural justice and fair procedures:-

‘In particular, individuals have a right to be informed of what is alleged against them and to be given a reasonable opportunity to put forward their submission or make representations. This is set out further below.’

A detailed procedure is set out in Part C.

Part B

14 Part B refers to the responsibilities of Child and Family Agency social workers and the importance of the quality of their assessments. Paragraph 6.6.1 requires social workers to take every care in checking the reliability and accuracy of allegations in their assessments.

Part C

15 Part C sets out a detailed procedure and series of protocols to be followed on the receipt of reports of allegations of child abuse which must be processed in...