The High Court has refused to extend the time for a suspended school worker to bring judicial review proceedings, finding that the challenge was considerably out of time and that the delay was not adequately explained.
The judgment, delivered by Mr Justice Hedigan on 6 July 2010, dealt only with delay, which the parties had agreed would be heard as a preliminary issue. The court did not determine the underlying challenges to the worker’s continued suspension or to risk assessment findings concerning allegations of abuse.
The worker, identified in the judgment as G.C., was suspended from his classroom assistant and careworker role in March 1997 after a pupil’s family complained of sexual abuse. The judgment records that eight pupils, through their parents, made allegations to gardaí and the Health Board. The Director of Public Prosecutions decided in 2000 not to prosecute the worker. The Health Board later found that abuse had occurred in seven of eight cases it assessed and concluded that the worker presented “an ongoing risk to vulnerable children”. Those were findings recorded in the assessment reports, not findings made in this judicial review judgment.
The school proposed a disciplinary inquiry after receiving the reports in October 2004 and invited the worker to respond. He received the reports in 2008, according to his affidavit. The court held that he knew the reports existed and knew their broad adverse conclusions from 2004, and could have sought them then. It treated 20 October 2004 as the latest date by which he should have moved to challenge his suspension, and 24 October 2004 as the relevant date for challenging the HSE findings.
The worker began judicial review proceedings on 11 May 2009. His counsel argued that he had relied on the school holding an inquiry and that the delay was attributable to the school and the Health Board. The school and HSE argued that the delay was inordinate and inadequately explained, and that extending time would prejudice them and the families involved.
Justice Hedigan found the explanations “disingenuous and not credible” and held that there would be prejudice to the HSE, the school and the children’s parents if time were extended. He said the school’s proposed inquiry could appropriately be held in private, and that the worker had no right to dictate its terms of reference so long as fair procedures were followed. He also criticised the prolonged suspension and delay in completing the disciplinary process.
The court concluded that the worker was out of time and that the circumstances did not justify an extension. The judgment therefore resolved the preliminary delay issue; it did not decide the substantive employment or abuse allegations.