The Court of Appeal has held that the Children First Act 2015 does not require a mandated person to report an adult’s disclosure of harm suffered during childhood solely because the alleged harm falls within the Act’s definition of “harm”. The ruling concerns the meaning of “a child … has been harmed” in section 14(1)(a), where “child” is defined as a person under 18 who is not or has not been married.
The court allowed an appeal by Tom McGrath, the HSE’s director of counselling, against a High Court ruling on the HSE’s interim procedures for its National Counselling Service. The procedures had told staff to report retrospective abuse disclosures to Tusla. The HSE argued that the Act required reports where an adult disclosed past harm suffered as a child; McGrath argued that the reporting duty applied only when the person was a child at the time the mandated person received the information.
In a judgment delivered by Mr Justice Binchy on 8 December 2023, the Court of Appeal concluded that the statutory wording and definition of “child” did not include adults who had been harmed as children. It said the broader reading would require additional words to be inserted into the Act. It also found no ambiguity in the phrase and said its interpretation was consistent with the Act as a whole.
The ruling preserves the duty to report a reasonable suspicion that a child is currently at risk of harm, including where that suspicion arises from information disclosed by an adult. The court also said that, where an adult consents, a mandated person can and should report the information to Tusla. It did not determine whether either interpretation would lead to more reports of historic abuse.
The court said the orders sought were too broad because they could unnecessarily quash the HSE policy as a whole. It invited the parties to agree the appropriate form of order and directed them to inform the registrar within 14 days if they could not agree, so the court could hear further submissions. The judge’s preliminary view was that McGrath should receive his costs in the Court of Appeal and High Court; the HSE could submit a different proposal within 14 days, with a further 14 days for McGrath to reply. The judgment does not state the final orders or costs determination.