C.D. v The Child and Family Agency (Approved)

Factual and Procedural Background

The Child and Family Agency (the Agency) was notified of allegations that the Applicant sexually abused a child when the Applicant was aged 13 or 14 and the child was around three years old. No formal complaint was made at that time, partly because the child’s mother did not want the child to revisit the matter. The Applicant explained to the Agency that the incident was accidental. Subsequently, on 20th July 2017, a referral was made by a general practitioner regarding a later allegation of child sexual abuse by the Applicant involving another child aged approximately five to seven years. The Applicant denied all allegations during a social work discussion on 8th January 2018, prior to the formal inquiry process.

The Agency notified the Applicant of the formal procedures on 24th May 2018 and later communicated provisional adverse conclusions on 26th November 2018, allowing the Applicant to respond. On 19th July 2019, the Applicant’s solicitor was informed that the Director of Public Prosecutions had directed no prosecution concerning the allegations. The Applicant then obtained leave from a judge to prohibit the Agency from making conclusions and to stay such conclusions pending the judicial review proceedings.

Legal Issues Presented

1. Whether the Child and Family Agency has jurisdiction to make a finding that an allegation of child sexual abuse is founded or unfounded, as opposed to merely identifying a future risk of child abuse in a particular case.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that the question of the Agency’s jurisdiction to make findings that an allegation is founded or unfounded had not been definitively decided and raised concerns about the lack of explicit statutory authority for such findings.
• The Applicant argued that the procedure allowing the Agency to find facts lacked proportionality and breached the Applicant’s rights, particularly the right to a fair trial and the presumption of innocence.
• The Applicant highlighted the potential lifelong stigma from being branded a child sexual abuser based on the Agency’s findings and raised concerns about dissemination of such findings without adequate safeguards.

Respondent's Arguments

• The Respondent submitted that existing caselaw, particularly the judgment in M.Q. v. Gleeson, established the Agency’s jurisdiction to make findings on whether allegations are founded or unfounded under section 3(1) of the Child Care Act 1991.
• The Respondent argued that the Agency’s statutory function to promote the welfare of children necessarily includes the power to investigate and make findings of fact, including findings that a person is likely to be a child abuser.
• The Respondent maintained that the process was not disproportionate and that the Agency could not perform its child protection role without making such findings.
• The Respondent acknowledged the need for scrupulous application of fair procedures but relied on existing decisions to support the current procedural framework.
• The Respondent rejected objections based on acquiescence and prematurity, asserting that judicial intervention was appropriate given the legal issues raised.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by framing the central legal question: whether the Child and Family Agency has jurisdiction to make definitive findings that an allegation of child sexual abuse is founded or unfounded, beyond merely identifying a future risk of abuse. The Court acknowledged that the statutory basis for the Agency’s jurisdiction derives primarily from section 3(1) of the Child Care Act 1991, which mandates promotion of child welfare but does not explicitly provide for fact-finding powers.

Relying on the established precedent in M.Q. v. Gleeson, the Court accepted a broad interpretation of the statute, recognizing that the Agency’s duties include investigating and making findings about child abuse allegations. The Court noted that this precedent supports the Agency’s power to find that a person is likely to be, or to have been, a child abuser.

The Court considered arguments about the absence of explicit statutory authority and the risks inherent in administrative bodies making serious findings with criminal implications. It expressed concerns about procedural safeguards, emphasizing that the current process—whereby social workers involved in investigations also make findings—may fall short of fair procedure requirements. The Court suggested that a separation between investigatory and decision-making functions would better protect fairness.

Regarding objections of acquiescence and prematurity, the Court dismissed acquiescence as inapplicable and found that prematurity objections do not bar judicial review where there is a point of principle or potential ultra vires action. The Court also rejected claims of disproportionality and breach of the right to a fair trial, holding that the Agency’s fact-finding role is not inherently disproportionate and that civil or administrative proceedings can coexist with criminal processes without violating rights.

The Court emphasized the importance of scrupulous application of fair procedures and noted that the presence of an appeal process does not necessarily cure procedural deficiencies if the appeal does not constitute an independent and substantive review. The Court also highlighted the need for neutrality in the Agency’s procedures and the potential lifelong consequences for individuals subject to findings of child abuse.

Ultimately, the Court concluded that the Agency’s jurisdiction to make findings that an allegation is founded or unfounded is supported by existing law, but that procedural safeguards require careful scrutiny and possible development in future cases or legislative reform.

Holding and Implications

The Court DISMISSED the Applicant’s application for prohibition and lifted the stay on the Agency’s fact-finding process.

The direct effect of this decision is that the Child and Family Agency may proceed with its process of making findings on child abuse allegations. The Court did not set new precedent beyond affirming existing caselaw and emphasized the need for adequate procedural safeguards. No broader implications or legislative changes were mandated, though the Court suggested that the legislature might consider clarifying the statutory basis for such inquiries in the future.