The Court of Appeal allowed the Child and Family Agency’s appeal against a High Court order that had required arrangements for cross-examination in an ongoing review of a child protection assessment. It held that E.E.’s application for judicial review was premature because the review process had not reached its conclusion.
The dispute followed allegations made by E.E.’s older child that he had sexually abused her without physical contact when she was aged between eight and 12. E.E. denied the allegations. A Child and Family Agency investigation concluded in November 2014 that the allegations were sustained and recommended that he have no unsupervised contact with children.
E.E. appealed that assessment. The appeal panel proposed to uphold the findings and refused his request to cross-examine the complainant, offering instead to convey written questions and consider her answers and any response from E.E. He sought judicial review in July 2016, while the panel’s review was still underway.
The High Court had ordered that the complainant be made available for cross-examination. If that did not happen within two months of the order being perfected, the Agency was to set aside its first-instance report and allow the appeal. The order also restrained further action based on the first-instance decision until cross-examination occurred or a further order was made.
The Court of Appeal applied the Supreme Court’s approach in Rowland v An Post: courts should intervene in an ongoing process only where it has gone irretrievably wrong and an adverse outcome would be bound to be unsustainable in law. It said the Agency’s review remained “very much alive” and could still be affected by written questions, answers and E.E.’s response. The Agency also had a wide margin to decide how to conduct its process fairly, the court said.
The court concluded that the proposed written-question process could not be condemned as certain to produce an unlawful decision. The review therefore had not gone irretrievably wrong, and the application failed as premature. It said the time limit for a later judicial review would run from the conclusion of the appeal process, after which the entire process could be reviewed if appropriate.
The court did not decide the other grounds of appeal, including whether cross-examination was required in the circumstances. It separately held that criticism of Agency staff in the High Court judgment was inappropriate and unfair because those matters had not been raised by the parties. The appeal was allowed on 11 June 2018.