Judgment: 2020-10-19 · Court archive

High Court quashes child abuse finding over flawed agency investigation

The court set aside the Child and Family Agency’s 2018 provisional finding, while leaving it discretion to decide whether to investigate the historical complaint again.

High Court · [2020] IEHC 464

Who, what, where, when and why

Who
  • J.
  • Child and Family Agency (Respondent)
  • the complainant
What

The court set aside the Child and Family Agency’s 2018 provisional finding, while leaving it discretion to decide whether to investigate the historical complaint again.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 26 July 2018

    The applicant, identified only as J. and described in the judgment as a person subject to an allegation of abuse, sought judicial review of the Agency’s decision of 26 July 2018. The complaint concerned alleged incidents in summer 1969. The complainant said they occurred when he was nearly 10; the applicant denied the allegations.

Why

Reasons reported in the judgment

The court found that the 2016 closure was lawful and a reasonable, proportionate response to the circumstances. The Agency had received a detailed account in 2013, and the Director of Public Prosecutions had decided not to bring criminal proceedings. The judge said the Agency had discharged its child protection obligations at that point. The judgment also noted practical limits on assessing a complaint made about events said to have occurred nearly 50 years earlier, including discrepancies between the complainant’s 2013 account to the Agency and his 2014 statement to gardaí.

The High Court has quashed a Child and Family Agency decision that a complaint of historical child sexual abuse was founded, ruling that the 2018 investigation was unlawful. The court did not bar the Agency from investigating again, but made no order requiring it to do so.

The applicant, identified only as J. and described in the judgment as a person subject to an allegation of abuse, sought judicial review of the Agency’s decision of 26 July 2018. The complaint concerned alleged incidents in summer 1969. The complainant said they occurred when he was nearly 10; the applicant denied the allegations.

The Agency conceded that its provisional conclusion should be quashed on three grounds. It had applied a standard of proof below the balance of probabilities; one of the two social workers who signed off on the conclusion had never met the complainant, despite the decision referring to his emotional reaction at interview; and the Agency had failed to disclose a September 2016 letter closing its file.

The court found that the 2016 closure was lawful and a reasonable, proportionate response to the circumstances. The Agency had received a detailed account in 2013, and the Director of Public Prosecutions had decided not to bring criminal proceedings. The judge said the Agency had discharged its child protection obligations at that point. The judgment also noted practical limits on assessing a complaint made about events said to have occurred nearly 50 years earlier, including discrepancies between the complainant’s 2013 account to the Agency and his 2014 statement to gardaí.

The court rejected the applicant’s argument that the earlier closure prevented any future investigation. It held that the Agency retained discretion to reopen the matter, but was not obliged to do so. The July 2018 decision was quashed without remittal, meaning the court did not direct the Agency to reconsider the complaint.

If the Agency chooses to investigate further, the judgment says it must follow natural and constitutional justice. It must consider the chronology from 2013, the delay and the discrepancies between statements. It must also consider whether a fair investigation is possible without cross-examination, while recognising that a complainant may refuse such a request.

The judgment did not resolve costs. It invited the parties to try to agree an order, with written submissions to follow if they could not.

Read the original court judgment

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