The High Court has refused a judicial review brought on behalf of a child over the Child and Family Agency’s decision to treat its assessment of her abuse complaint as complete and not investigate further.
The judgment, delivered by Ms Justice Siobhán Phelan on 20 December 2022, concerned a complaint made after the child disclosed sexual abuse in 2016. The Agency’s social work team initially assessed the allegation as founded on the balance of probabilities. The man identified in the complaint was later acquitted of related criminal charges in 2019.
An appeal panel appointed under the Agency’s 2014 policy overturned the founded assessment in a report dated 15 January 2021. It concluded that a Garda interview may have contaminated the evidence and compromised the earlier assessment. The panel relied on a psychologist’s report prepared for the criminal proceedings. The child’s representatives raised concerns about the appeal process and asked the Agency to reopen the matter. The Agency replied that its section 3 process had concluded and that it had complied with its duties.
The judicial review challenged the Agency’s refusal to reassess, rather than seeking to quash the appeal panel’s report. The child’s representatives argued that the Agency could not delegate its statutory function or treat itself as bound by a non-statutory panel. The Agency and the notice party opposed the case on several grounds, including standing and delay.
Justice Phelan ruled that the child had sufficient interest to bring the challenge. She also held that the Agency’s statutory duty to promote children’s welfare includes assessing abuse complaints, and that the Agency can establish an independent appeal panel as part of fair procedures. The panel’s role did not amount to an unlawful delegation of the Agency’s responsibility.
The court said the Agency retains discretion to investigate further when needed to protect children, but is not obliged to repeatedly investigate a complaint. In deciding whether to reopen a completed process, it must consider whether further steps are reasonable and proportionate, including the information available, any identified flaws, child welfare and the interests of the person investigated. Any further investigation would have to follow fair procedures.
The judge found no evidence that the Agency believed it was bound by the appeal panel or lacked power to investigate further. She was not persuaded that its decision that there was no basis for further investigation was unreasonable or improper. The court therefore refused the relief sought. It directed that the matter be listed for consequential matters unless the parties agreed within 14 days that no further listing was needed and that orders could be made by consent.