The High Court has ruled that mandated persons must report to Tusla when an adult discloses past harm suffered as a child, provided the information gives reasonable grounds to suspect harm within the Children First Act 2015. The reporting duty applies even when the alleged abuser is not identifiable and the adult does not consent to a report.
In a judicial review, Tom McGrath, the HSE’s Director of Counselling in Sligo, challenged the interpretation underpinning the HSE’s 2019 Child Protection and Welfare Policy. The policy requires retrospective abuse disclosures in counselling to be passed to Tusla where there are reasonable grounds for concern. McGrath argued that reporting should be required only where the alleged person was identifiable or there were grounds to suspect a current risk to a child.
The HSE argued that section 14(1)(a) requires reports where a child “has been harmed”, including where the person who suffered the harm is now an adult. It said Tusla, rather than the counsellor, should assess the information and any implications for child protection.
Ms Justice Siobhán Phelan accepted the HSE’s interpretation. She held that the past tense in section 14(1)(a) captures harm suffered by a person when they were a child, regardless of their age when the disclosure is made. She found that the Act’s reporting provisions address different circumstances, so the fact that an adult’s disclosure is not covered by the separate provision for disclosures made by a child does not create an absurdity.
The judge said the Act makes no special reporting exemption for counsellors, including where a counsellor believes reporting could harm a client. Nor does the reporting duty depend on the adult’s consent or on the alleged perpetrator being identifiable. Counsellors must inform people seeking treatment about confidentiality limits and mandatory reporting obligations.
The judgment concerns the statutory reporting duty, not a finding that any particular allegation of abuse is true or that a current child is at risk. Once a report is made, the judge said, it is for Tusla to decide what assessment or further steps are appropriate under section 16. The court’s ruling resolved the statutory interpretation issue raised in the judicial review.