The High Court has set aside two conclusions in a TUSLA assessment of an allegation that JPP sexually abused LK when she was a child, finding that JPP was denied a fair opportunity to respond before the provisional conclusion was reached.
Mr Justice Alexander Owens ruled on 13 December 2022 that TUSLA’s provisional conclusion of 8 January 2019 and final conclusion of 15 March 2019 should be set aside. He remitted the matter for full reconsideration under the procedures in the 2014 guidance, by different social workers. The court also extended time for JPP to bring the judicial review against TUSLA, as the parties had agreed.
LK made a complaint in 2009, aged 14. The Director of Public Prosecutions later decided not to prosecute JPP. TUSLA’s investigation began in 2018, when LK was an adult. During that investigation, social workers interviewed JPP with his solicitor on 31 October 2018. A letter that day said notes of planned interviews with LK and family members would be provided, with an opportunity for JPP to respond before a provisional conclusion.
The notes were later sent with the 8 January 2019 letter stating that the allegation was “founded”. The letter said the social workers considered it more likely than not that LK had been sexually abused by JPP. The judgment found JPP had not been given the promised opportunity to review and comment on the interviews before that conclusion. The court said that was unfair because the provisional conclusion was effectively final unless JPP provided new information to displace it.
JPP’s solicitors raised concerns including the delay in the investigation and the death of his wife, who they said might have contradicted part of LK’s account. They also sought disclosure and asked for LK to be made available for cross-examination. LK declined to participate. TUSLA said it could not compel her, and issued its final conclusion after considering JPP’s written submissions. The court did not decide whether the appeal panel had provided fair procedures, because the assessment was being remitted.
The judgment did not direct the result of the new assessment or require traditional cross-examination. It said the decision makers must determine a fair process, including whether and how questions should be put to LK, taking account of her rights and any reasons for refusing. A refusal by an adult complainant to answer questions does not, by itself, amount to a good reason to dispense with an opportunity to test an allegation. The court also said the weight given to an account must reflect whether the person accused had an adequate opportunity to challenge it.