On 19 October Mr Justice Simmons in the Irish High Court handed down judgment in the matter of J (A person subject to an allegation of abuse) and The Child and Family Agency  IEHC 464 and in so doing quashed a decision by TUSLA, the Irish Child and Family Agency (CFA), which had arrived at a “provisional conclusion” that J (the alleged abuser as he is described in the judgment) had engaged in sexual acts with a child (the complainant as he is described in the judgment) in the CFA’s review of historic allegations of child sexual abuse that the complainant had made to the CFA in December 2013. Under the provisions of the Child Care Act 1991 (as amended) the CFA must inquire into complaints of child sexual abuse, including historical abuse.
Mr Justice Garrett Simons said that the facts of this case illustrated “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”.
In December 2013 the complainant contacted the CFA and alleged that in the Summer of 1969 when he was doing odd jobs in a hotel where the alleged abuser was also working that the alleged abuser “lured” him into a bed in the hotel. The complainant could not recall how this happened. He said that he was nine at the time and he guessed that the alleged abuser was about 16 or 17. The complainant said that the abuse took place on three separate occasions and while at the time he thought it was harmless he told the social worker who interviewed him on 18 December 2013 that he was now starting to think that it may have played a part in a mental breakdown he had when he was 23 and ongoing mental health issues.
The complainant made a statement to An Garda Siochana in January 2014 and the file was referred to the Director of Public Prosecutions who directed that no charges be brought against the alleged abuser.
The CFA closed its file into the complaint in September 2016 but it was re-opened in November 2017 when the complaint was referred onto the CFA’s specialist inquiry team.
The alleged abuser was first notified of an investigation into him by the CFA by letter on 15 May 2018.
Solicitors for the alleged abusers queried with the CFA why it had taken until November 2018 to continue with any investigation when the allegations had been made by the complainant as far back as 18 December 2013. In its reply the CFA outlined how the complaint had been dealt with from the 18 December 2013 but made no reference to the fact that a decision to close the CFA’s files in respect of the complainant had been made on 13 September 2016.
When the alleged abuser met with the CFA on July, 2018 he denied the allegations and suggested that the allegations were malicious as there had been some “aggro” between the parties. At this meeting the CFA also outlined a chronology of how the allegations had been investigated and again omitted to refer to the fact that they closed their file back in September 2016.
On 26 July 2018 the CFA wrote to the alleged abuser indicating that a finding of “founded” had been made by the CFA i.e. that it was deemed likely that some contact of a sexual nature occurred between the alleged abuser and the complainant “…given the credibility of the complainant’s account and the insufficient quality of the account provided by…” the alleged abuser. The CFA advised the alleged abuser what options were open to him at that time.
The alleged abuser chose to lodge an administrative appeal with the CFA while at the same time writing to the CFA suggesting it had acted ultra vires and subsequently brought judicial review proceedings against the CFA. It was agreed between the parties that the administrative appeal would be stayed pending the outcome of the judicial review.
The alleged abuser’s legal team were only provided with a copy of the letter which evidenced the fact the CFA had closed their file from September 2016 in March 2019 in the course of these judicial review proceedings.
The CFA conceded that it’s finding against the alleged abuser made on 26 July 2018 was invalid and should be set aside. Among the reasons for that concession was an acceptance that the CFA had failed to apply the correct standard of proof, the balance of probabilities, in reaching its provisional conclusion.
However, the CFA submitted that it should be entitled to continue its inquiries against the alleged abuser. The alleged abuser applied to the court for orders restraining further inquiry into the events alleged to have occurred.
Section 8(1)(b) of the Child and Family Agency Act 2015 provides that one of the functions of the CFA is to support and promote the development, welfare and protection of children. Mr Justice Simons said that a “well-established line of case law” provides a broad interpretation of that statutory function.
Lawyers for the CFA outlined the CFA’s practice in cases involving historical child sexual abuse allegations for the court and it is first to determine whether the allegation of child sexual abuse is “founded” or “unfounded” before moving on to a risk assessment.
Mr Justice Simons noted that this approach implies that the CFA’s role is to adjudicate on an adversarial dispute between a complainant and an alleged abuser, whereas its role is in fact inquisitorial.
Mr Justice Simons said it is not the CFA’s role “…to vindicate the complainant nor to sanction an alleged abuser. A complainant has a separate remedy by way of civil proceedings for damages, and any sanction for the alleged abuser is a matter for the criminal justice system.”
Mr Justice Simons noted the court had to consider whether, in addition to making an order of certiorari, it should also make an order restraining the CFA from carrying out any further investigation of the alleged abuse.
Ord.84 r.27(4) of the Irish Rules of the Superior Courts provides that a court has a discretion, having quashed an administrative decision, to remit the matter to the decision-maker concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court.
Mr Justice Simons said that the court’s discretion under Ord.84, in alleged child sexual abuse cases, is one which will always be exercised in favour of remittal “… because the best interests of the child must be the paramount consideration in proceedings which have the purpose of preventing the safety and welfare of any child from being prejudicially affected”.
Mr Justice Simons found that on the facts of this case remittal was not necessary as the CFA had already discharge its obligations under the Child Care Act 1991. It had done so during the investigations it had conducted during the period December 2013 and September 2016 when it had closed its file in relation to the complainant. The court accepted the submission made on behalf of the alleged abuser that the CFA must have been satisfied in September 2016 when it took its decision to close its file that the alleged abuser was no risk to any child as if it had thought otherwise it could not have lawfully closed the file. Mr Justice Simons noted that the CFA had a detailed statement from the complainant since December 2013 and it could have put those allegations to the alleged abuser had it considered those allegations credible and it did not do so before closing its file in September 2016. He also noted that the CFA had not chosen to provide an explanation on affidavit to the court as to why, having closed its file, a fresh investigation was commenced in November 2018.
However, he went on to say that allowing for the breadth of the discretion afforded to the CFA under section 3 of the Child Care Act 1991 he was satisfied that as a matter of law, it was open to the CFA to commence a fresh investigation of the complaint and that the CFA was not “estopped” from commencing such an investigation but it was not under a statutory obligation to do so. He reminded the CFA that “…itsstatutory power to investigate historical child sexual abuse; to make findings; and to publish those findings to an individual’s family and employer; must be exercised in a reasonable and proportionate manner.” He also cautioned the CFA that any further investigation must be conducted in accordance with natural and constitutional justice.
As is often the case in this area of the law the judgment of the Irish High Court in these judicial review proceedings turns on the unique and individual facts of this case and the allegations made therein, but leaving that aside this judgment is a further reminder to all who are investigating such complaints about the need to be balanced in your approach and to inquire into the allegations and as Mr Justice Simons so eloquently put it, to remember that it is not your role “…to vindicate the complainant nor to sanction an alleged abuser.”
For those who are interested in reading the judgment please click here.