F.A. v Child and Family Agency & ors

Factual and Procedural Background

The Applicant, a married father of four adult children and a care assistant employed by the Health Service Executive, and his wife had fostered several children since 2007. One former foster child, hereinafter referred to as the Complainant, made allegations of sexual impropriety against the Applicant, purportedly occurring during her placement with the Applicant and his wife. The allegation was made several months after the Complainant had left their care.

The first named Respondent, a statutory agency responsible for child welfare and protection, investigated the allegations. The second and third named Respondents formed an appeal panel to hear an appeal against the first Respondent’s determination that the allegations were founded. The appeal panel comprised two experienced social workers with expertise in child protection, appointed under the first Respondent’s 2014 Policy and Procedures for Responding to Allegations of Child Abuse and Neglect.

The Applicant sought judicial review orders including quashing the appeal panel’s determination that the allegations were founded and that the procedures adopted were appropriate; declarations of breaches of fair procedures, natural and constitutional justice, and his right to a good name; and, if necessary, remitting the matter back to the first Respondent.

The procedural history includes multiple investigations following the disclosure of allegations in June 2014, involving social workers, the Gardaí, and various internal reviews. The Applicant and his wife were notified of the allegations in a limited manner initially, with fuller details provided only in September 2015. The first Respondent concluded the allegations were founded in February 2016 after a provisional conclusion and opportunity to respond. The Applicant appealed this finding through the appeal panel, which upheld the original determination in January 2017. These proceedings were initiated in February 2017.

Legal Issues Presented

1. Whether the appeal panel’s determination that the allegation of sexual impropriety was founded was lawful and made in accordance with fair procedures.
2. Whether the procedures adopted by the first and appeal panel Respondents complied with the Applicant’s rights to natural and constitutional justice, including the right to a good name.
3. Whether the appeal process afforded to the Applicant constituted a full and proper appeal on the merits or was limited to a procedural review.
4. Whether the failure to interview the Complainant or to put the Applicant’s denials to her constituted a breach of fair procedures.
5. Whether the Applicant was entitled to cross-examine the Complainant or otherwise have the allegations “stress tested” during the investigation or appeal process.

Arguments of the Parties

Applicant's Arguments

• The Child and Family Agency accepted the allegations as true from the outset without testing their veracity.
• The investigator who signed off on the initial strategy meeting also conducted the investigation, raising concerns about impartiality.
• The investigation failed to contact key third parties, including the Complainant’s treating psychiatrist and foster parents.
• The Applicant was not provided with particulars of the allegations in a timely manner and was denied a meaningful opportunity to respond.
• The Complainant was never interviewed by the decision-makers, and no specialist interview was conducted despite initial recommendations.
• The decision not to interview or cross-examine the Complainant was made without considering the possibility that the allegations might be false or the impact on the Applicant’s rights.
• The appeal panel did not conduct a de novo investigation, failed to consider interviewing the Complainant, and limited itself unduly to a procedural review, thereby failing to vindicate the Applicant’s rights.
• The Applicant argued for some form of stress testing of the allegations, though he did not insist on a right to cross-examine the Complainant.
• The Applicant contended that the appeal process was misleadingly represented as a full appeal, but was in practice restrictive and inadequate.
• The Applicant also raised procedural complaints regarding late disclosure of documents and lack of an oral hearing.

Respondents' Arguments

• The Respondents emphasized the absence of expert evidence challenging the adequacy or lawfulness of their procedures.
• The first Respondent’s paramount statutory duty is the protection and welfare of children, which may require that the right to fair procedures of the alleged abuser be secondary in some circumstances.
• The procedures followed were consistent with the Child Care Act 1991, the 2014 Policy and Procedures, and established case law, including the principles in M.Q. v. Gleeson.
• The investigation was not a judicial process and the burden of proof was the balance of probabilities, not criminal or civil standards.
• The decision not to interview or cross-examine the Complainant was professionally and reasonably made considering her age, vulnerability, and existing Garda interview.
• The Applicant did not seek cross-examination during the investigation and was given an opportunity to submit questions to be put to the Complainant.
• The appeal panel’s remit was to review the professional decision-making and compliance with fair procedures, not to conduct a full de novo investigation.
• The Applicant was legally represented and chose to pursue the appeal process rather than judicial review at an earlier stage.
• The Respondents submitted that the Applicant was confined to the grounds on which leave was granted and that many late-raised complaints could not be entertained.
• The procedures adopted balanced the rights of the child and the alleged abuser appropriately, and the Court should accord deference to the professional judgments made.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the serious and complex nature of child sexual abuse investigations, emphasizing the paramount importance of child welfare balanced against the rights of the alleged abuser. It recognized that the investigative process under the Child Care Act 1991 and the 2014 Policy and Procedures involves a different standard and purpose than criminal proceedings, focusing on risk assessment rather than determination of guilt.

The Court found that the Applicant was afforded opportunities to respond to provisional findings and to appeal, but it was critical of the appeal panel’s restrictive interpretation of its terms of reference. The panel declined to interview the Complainant or to put the Applicant’s denials to her, taking the view that such steps were outside its remit or unnecessary due to the existing Garda interview.

This restrictive approach was held to be a misdirection and a failure to comply with fair procedures as required by the policy and constitutional principles. The Court reasoned that fair procedures in such serious matters require some consideration of whether to stress test allegations, including the possibility of interviewing the Complainant or otherwise addressing the Applicant’s denials directly.

The Court distinguished the appeal process from a mere procedural review, noting that the 2014 Policy and Procedures envisage a broader and more substantive appeal including interviewing relevant parties and reviewing all relevant documentation. The appeal panel’s failure to engage fully with this remit amounted to acting unlawfully and beyond its powers.

The Court accepted that the Applicant did not insist on a right to cross-examine but held that some form of stress testing is necessary to satisfy fair procedures. It further held that the appeal panel’s decision to limit itself to the material before the initial investigator and to exclude new evidence or interviews was improper.

The Court also noted that the Applicant’s complaints about procedural fairness in the initial investigation were largely historical and that the appeal process was designed to address such issues, but the appeal panel’s failure to conduct a proper appeal undermined that remedial purpose.

Accordingly, the Court concluded that the appeal panel’s decision should be quashed and that a properly constituted appeal process consistent with fair procedures and the 2014 Policy and Procedures is likely to address any inadequacies in the initial investigation.

Holding and Implications

The Court’s final ruling was to QUASH the determination of the appeal panel that the allegations of sexual impropriety were founded.

The direct implication is that the matter is to be reconsidered by the first Respondent through a properly constituted appeal process that affords the Applicant full fair procedures, including consideration of whether to interview the Complainant or otherwise test the allegations. The decision does not set a new precedent but reinforces the requirement that appeal panels in such contexts must interpret their remit broadly to ensure fair procedures are observed in serious child protection investigations. The ruling highlights the necessity of balancing child welfare with the constitutional rights of alleged abusers, especially in the procedural conduct of appeals.