E.E. v The Child and Family Agency

Factual and Procedural Background

This appeal arises from a High Court judgment delivered on 14th November 2016 concerning an investigation by the Child and Family Agency (CFA) into allegations of child sexual abuse made by the older child of the Appellant (referred to as "older child") against the Respondent. The Respondent is the father of two children by different former partners. The allegations relate to non-contact sexual abuse said to have occurred when the older child was between 8 and 12 years old. The CFA conducted an investigation under section 3 of the Childcare Act 1991, culminating in a first instance report dated 11th November 2014, which found the Respondent had committed child sexual abuse and recommended no unsupervised contact with children.

The Respondent was initially not provided with the specialist report from St. Clare’s Unit but was later given it in October 2015. He appealed the CFA’s decision, and an independent appeal panel was appointed in September 2015. The Respondent requested the right to cross-examine the complainant during the appeal, which was refused by the panel in March 2016, offering instead to submit written questions. The Respondent’s solicitor threatened judicial review if cross-examination was not permitted. Subsequent correspondence failed to resolve the issue, prompting the Respondent to apply for leave to seek judicial review on 25th July 2016. The High Court granted relief in November 2016, ordering that the Respondent be entitled to cross-examine the complainant through counsel and restraining the CFA from further action until this was afforded.

Legal Issues Presented

1. Whether the Respondent was entitled, as a matter of fair procedures, to cross-examine the complainant before the CFA investigation and appeal panels.
2. Whether the Respondent waived his right to cross-examination by not requesting it during the initial investigation stage.
3. Whether the High Court erred in conducting its own inquiry into the merits beyond the issue of cross-examination.
4. Whether the judicial review application was premature given the ongoing appeal process.
5. Whether the refusal to allow cross-examination violated the Respondent’s right to fair procedures.
6. Whether the High Court’s order was too vague for the CFA to comply with.
7. Whether there was any objective bias or procedural unfairness in the High Court’s judgment.
8. Whether the Respondent was out of time to challenge the initial CFA findings.

Arguments of the Parties

Appellant's Arguments

• The judicial review application was premature because the appeal process had not concluded.
• The High Court improperly conducted its own inquiry into the merits of the case beyond the issue of cross-examination.
• The High Court raised and ruled on issues not argued by the parties, including the scope of child sexual abuse and criticisms of the CFA and named individuals without notice.
• The High Court made findings of fact beyond the affidavits and rulings concerning in camera family law proceedings without proper parties present.
• The Respondent was out of time to challenge the CFA’s initial findings made in November 2014.
• The CFA appeal panel’s refusal to allow cross-examination was lawful, especially since the Respondent did not request it during the investigation and the appeal was not de novo.
• The High Court’s order requiring cross-examination was vague and practically impossible to implement, particularly as the Respondent cannot afford counsel and the complainant refuses to be cross-examined.
• The CFA has no statutory power to compel attendance for cross-examination or to hold oral hearings under the current legislative framework.

Respondent's Arguments

• The High Court correctly found the Respondent was entitled to cross-examine the complainant before any adverse findings were made by the CFA.
• The right to cross-examination is grounded in constitutional guarantees of fair procedures and was appropriate given the complainant’s adult status at the appeal stage.
• The Respondent did not waive his right to cross-examination by failing to raise it during the investigation, as waiver requires full knowledge and informed consent which he lacked.
• The offer to submit written questions does not satisfy the requirement for fair procedures; oral cross-examination is necessary in this case.
• The CFA’s 2014 Policy and Procedures recognizes the possibility of cross-examination and the need for fair, reasonable, and proportionate procedures.
• The appeal panel is an independent body with discretion to address procedural fairness, including the Respondent’s failure to cross-examine earlier.
• Allegations of bias against the High Court judge are unfounded as objective bias must be external to the decision-making process.
• The judicial review application was timely as it challenged the refusal to allow cross-examination at the appeal stage, not the initial investigative findings.
• The judicial review is not premature because cross-examination has been refused and the proposed alternative is inadequate.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal focused primarily on whether the judicial review application was premature. It acknowledged the High Court’s correct identification of the central issue as the right to cross-examine the complainant during the CFA appeal process. The Court noted that the High Court had initially raised additional issues not pursued by the parties and that the final order was confined to the cross-examination issue.

Applying the principles from the Supreme Court in Rowland v. An Post, the Court considered whether the process had gone irremediably wrong, warranting immediate judicial intervention. It found that the appeal panel’s approach—allowing the Respondent to submit written questions and promising to revert with answers—constituted a process that had not yet failed irreparably. The Court emphasized the significant margin of appreciation given to the CFA in conducting sensitive child protection investigations, balancing fair procedures with practical constraints.

The Court further held that the refusal to permit oral cross-examination was not necessarily unlawful in all circumstances, especially given the complainant’s refusal and the Respondent’s inability to afford counsel. It also noted the absence of statutory powers for the CFA to compel attendance or hold oral hearings with cross-examination.

Regarding allegations of bias and procedural unfairness, the Court found no objective basis for bias and criticized the High Court’s harsh and unsolicited criticisms of CFA personnel, emphasizing that these individuals had no opportunity to respond and that such criticisms were unwarranted.

Ultimately, the Court concluded that the judicial review was premature because the appeal process was ongoing and the procedural fairness question had not been conclusively resolved. The Court did not find that the High Court erred in principle in recognizing a right to cross-examination in some circumstances but held that in this case, intervention was premature.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL and set aside the High Court order on the basis that the judicial review application was premature.

The direct effect is that the CFA appeal process must be allowed to proceed to its natural conclusion without immediate judicial interference. The Respondent’s right to cross-examination is not definitively ruled out but must be considered in the context of the ongoing appeal and the CFA’s procedural framework. No new legal precedent was established regarding the absolute right to cross-examination in CFA investigations; rather, the Court emphasized the case-specific and sensitive nature of such proceedings and the wide discretion afforded to the CFA. The Court also underscored the importance of procedural fairness balanced against practical and statutory limitations in child protection investigations.