The High Court quashed a Child and Family Agency determination that an anonymised applicant posed a risk of harm to children and vulnerable adults, finding the assessment process fundamentally flawed. It also prohibited further publication of that determination to third parties and ordered that the applicant’s anonymity be preserved.
The judgment, delivered by Mr Justice McDermott on 31 July 2017, concerned a judicial review of a determination made in September 2014. The allegations had been made by the applicant’s sister about events when she was 11 and he was 17. The applicant denied most of them but acknowledged having had sexual feelings for his sister and described occasions when he became aroused while tickling her before leaving the room. The court did not determine whether the alleged abuse occurred.
The agency commissioned a risk assessment by forensic psychologist Dr Joseph Sullivan. He concluded that the applicant represented a risk of harm to children and vulnerable adults and recommended restrictions on his access to them. The applicant challenged the agency’s decision to accept that report and notify his employer, arguing that the process breached fair procedures.
The court found that the applicant had not been given the full details of some allegations or relevant material before the assessment interviews. Some allegations were first put to him during those interviews, deliberately, so he could not prepare a response. The court held that a person facing serious allegations in an assessment that could lead to adverse findings and consequences must receive notice of the allegations and disclosure of the material supporting them, unless a sufficient child-protection or welfare reason justifies withholding it. No such reason was established here.
The court also found that the assessment took place without written procedures and that the consent form did not adequately explain the decision-making process. It criticised the pressure placed on the applicant to take a polygraph test and found that the possible risk to vulnerable adults had not been adequately notified or fairly examined.
On cross-examination, the court said the right is not absolute, but in this case an opportunity to cross-examine the adult complainant should have been considered, absent a reason connected with her mental health or welfare. The applicant had not sought an oral hearing or cross-examination during the process. The court nevertheless found the issue had not been considered at all. It emphasised that child-protection assessments are investigative and are not criminal trials; the ruling was about the fairness of this assessment, not a determination of guilt or innocence.
The court said the agency remained entitled to conduct a fresh investigation, which it expected would have due regard to fair procedures and was likely to follow the 2014 procedure.