The High Court has quashed an appeal panel’s decision upholding a finding that allegations of sexual abuse against a former foster carer were founded, ruling that the panel wrongly restricted its consideration of how the allegations could be tested.
The judgment by Mr Justice MacGrath concerns F.A., whose identity remains anonymised. The allegations were made by a former foster child, also anonymised, and related to the period when she lived with F.A. and his wife. The Child and Family Agency investigated and concluded that the allegations were founded. Gardaí decided there would be no prosecution.
F.A. challenged the Agency’s procedures and appealed. The appeal panel upheld the founded finding in its report, completed in January 2017. F.A. then sought judicial review, arguing that the panel had failed to provide a sufficiently broad appeal and had not properly considered ways to test the complainant’s account. He did not press for an absolute right to cross-examine her.
The judge said the appeal procedure set out in the Agency’s 2014 policy went beyond a court-style review of whether the process had been followed. It required the panel to consider submissions, interview relevant social work personnel and the person facing the allegation, and ensure fair procedures. The policy did not confine the panel to material considered during the initial investigation.
The panel had not interviewed the complainant. It gave differing explanations: that a decision-maker need not interview a child who had already been interviewed, and that an interview was outside the panel’s remit. The judge concluded that the panel had effectively treated its terms of reference as preventing real consideration of an interview or other means of testing the allegations.
The complainant had not been told that F.A. denied the allegations, the judge said, and the panel had not assessed any response she might make to his denials. The panel therefore took an unduly restrictive view of its role, misdirected itself and failed to comply with its own procedures. The court held that this breached F.A.’s rights to natural and constitutional justice.
The court did not decide whether the allegations were true or reassess the evidence on their merits. It also did not quash the Agency’s original finding. The judge said a properly directed appeal could address alleged shortcomings in the initial investigation, which F.A. had not sought to quash in these proceedings. He said he would hear the parties on the order to be made; the judgment does not state any further order.