A Court of Appeal judge said a father’s claim against the Health Service Executive over alleged delays in investigating child abuse complaints should not be struck out without a fuller examination of the issues. Gerard Hogan J. stressed that his view was provisional and that he was in the minority of the court on the HSE appeal.
The judgment, delivered on 9 February 2018, concerned appeals against two High Court orders striking out proceedings brought by a plaintiff identified as V.K. The proceedings arose from his arrest and detention under section 4 of the Criminal Justice Act 1984 on 15 September 2009, after his wife, identified as M.W., made allegations in 2007 that he had sexually abused their daughter when she was five.
The plaintiff alleged that the Gardaí referred the complaints to the HSE, which investigated under the Child Care Act 1991. In his statement of claim, he said a 28-month investigation by the second and third defendants, from November 2007 to March 2010, caused him to lose his parental connection with the child despite applications for visitation rights. He maintained that his wife’s accusation was false and deliberate, and that delays had deprived him of meaningful contact. Hogan J. made clear that he expressed no view on whether those claims were correct.
The High Court had struck out the case against the HSE, the third defendant, under Order 19, rule 28 and the court’s inherent jurisdiction. Hogan J. said the legal issues were difficult and novel, and that the available material was insufficient for summary determination. He considered it at least arguable that constitutional values could shape the law of negligence or breach of statutory duty in a claim about alleged investigative delay, while recognising that imposing a duty of care on a statutory body could raise significant public policy concerns.
Hogan J. would therefore have allowed the appeal against the order striking out the HSE claim. He agreed with Finlay Geoghegan J. concerning the second defendant, but stated that he was in the minority of the court regarding the HSE. The judgment records his proposed disposition; it does not say that the HSE claim was ultimately allowed to proceed, nor does it decide the truth of the allegations or liability.