The High Court ruled that a father facing a Child and Family Agency finding of child sexual abuse was entitled to have the now-adult complainant cross-examined by counsel. It ordered the agency to set aside its first-instance examination report and allow his appeal if it failed to provide that opportunity within two months of the order being perfected.
The judgment, delivered by Mr Justice Richard Humphreys on 14 November 2016, arose from a judicial review of the agency’s refusal to permit cross-examination during its appeal process. The court held that a list of written questions put by the agency would not be an adequate substitute. It said the right was to questioning by the respondent’s counsel, and did not include a right for the father himself to confront the complainant or be present during questioning.
The agency’s first-instance decision, made in November 2014, upheld elements of the complaint and recommended that the father have no unsupervised contact with children in any context, including family settings. The appeal panel had provisionally proposed rejecting his appeal. The High Court did not make a final finding on the underlying allegations. It said that cross-examination was required for fair procedures, following an earlier High Court decision, and rejected the agency’s procedural objections to the judicial review.
The judgment described concerns about how the investigation had been conducted, including access to relevant material, the distinction between sexual abuse and sexually inappropriate behaviour, and the assessment of risk. The judge expressly said these broader concerns were matters for further submissions, not findings at that stage. After the applicant decided not to amend his pleadings to seek relief on those issues, the final order did not address them as separate grounds for relief.
The court also varied an existing stay to restrain the agency from taking further action in the investigation or relying on the first-instance decision and recommendations until cross-examination was provided or a further order was made. It continued a permanent order restricting publication of material that could identify non-professional parties, and permitted the applicant to provide the judgment and relevant papers to a court dealing with his family law proceedings. Decisions about access to his younger daughter remained for the District Court.