G.H. v Tusla Child and Family Agency & Ors (Approved)

Factual and Procedural Background

The Applicant, a qualified social care worker, was placed in foster care during childhood in the home of the first notice party. In 2015, the Applicant made a complaint to the Child and Family Agency ("the Agency") alleging emotional and physical abuse and neglect during that placement. The Agency initially concluded in May 2017 that there were serious concerns about the foster carer's conduct, supported by consistent accounts from the Applicant and similar concerns raised by other children. The Applicant commenced plenary proceedings against the Agency and the notice party in 2018 for negligence and breach of duty related to her care.

Subsequently, the Applicant was informed that the original investigation was flawed and that a new investigation would be conducted. The investigation spanned approximately five years (2018-2023), during which the Applicant raised concerns about delays and lack of communication. Despite being interviewed and providing evidence and potential witnesses, the Applicant was not informed that a final decision had already been made in December 2022, declaring her allegations unfounded. The formal notification of this conclusion was only sent to the Applicant in July 2023 without any reasons provided.

The Applicant initiated judicial review proceedings challenging the Agency's decision deeming her allegations unfounded and the adequacy and legality of the procedures applied. The State respondents were joined due to constitutional and ECHR compatibility claims regarding the statutory framework, although these issues were not pursued vigorously. The notice party participated with submissions, while the second notice party, the Irish Human Rights and Equality Commission, did not participate.

Preliminary issues raised included whether the proceedings were out of time and whether the Applicant had locus standi. Leave to issue proceedings was granted within time, and the court found the Applicant had sufficient interest to maintain the challenge.

Legal Issues Presented

1. Whether the Applicant has locus standi to challenge the Agency's decision deeming her allegations unfounded.
2. Whether the Child and Family Agency is under a legal duty to provide reasons for its decisions affecting the Applicant.
3. Whether the procedures applied by the Agency in investigating allegations under s. 3 of the Child Care Act 1991 are lawful and comply with fair procedures requirements.
4. Constitutional and ECHR compatibility of s. 3 of the 1991 Act as it relates to the Agency's investigative and decision-making processes.

Arguments of the Parties

Applicant's Arguments

• The Agency's failure to provide reasons for its decision breaches fair procedures and the Applicant’s rights to understand the basis of the decision.
• Reliance on Supreme Court authority requiring decision-makers to give at least general reasons to affected persons.
• The change in the Agency’s position from 2017, when reasons were given, to later decisions without reasons heightens the need for explanation.
• The Agency’s procedures under s. 3 of the 1991 Act are ultra vires if they allow investigations without independent decision-makers or deny the Applicant a right of appeal.
• The advanced age of the notice party does not justify withholding reasons from the Applicant.

Child and Family Agency's Arguments

• The Agency’s investigations are conducted pursuant to policies designed to assess risk to children, not to vindicate complainants or determine civil or criminal liability.
• The primary focus is on the fair procedures owed to the person subject to the allegation (the notice party), not the complainant.
• The Agency’s policies distinguish between obligations owed to the person suspected of abuse and the complainant, with no express duty to provide reasons to the complainant.
• The Applicant’s proceedings fail to engage with the reality that the Agency’s role is risk assessment and protective action, not adjudication of rights.
• There is no basis for alleging bias or the need for an independent decision-maker beyond the Agency’s processes.
• The Agency’s affidavits confirm adherence to policies and deny any obligation to provide reasons or reports to the complainant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the preliminary issues of time limits and locus standi, concluding that the Applicant had sufficient interest to maintain the proceedings and that the time objections were overcome by the timing of the leave application and the Applicant’s lack of knowledge of the December 2022 decision.

Turning to the substantive issue, the court analysed whether the Agency was under a legal duty to provide reasons for its decisions. It noted the unusual features of the case, including the length and delay of the investigation, the initial 2017 findings of serious concerns (with reasons provided), the unexplained change in the Agency’s position to withholding reasons, and the failure to notify the Applicant of the December 2022 decision until much later.

The court acknowledged the difficult role of social workers and the challenges inherent in such investigations but emphasized that administrative law requires fairness and transparency, including the provision of reasons where decisions affect a person's interests. It rejected the Agency’s argument that its policies could oust the duty to give reasons, holding that public law obligations prevail over internal policy choices.

The court highlighted case law establishing the right of affected persons to know the reasons for decisions to enable meaningful judicial review and to consider appeals or other remedies. It gave particular weight to the Supreme Court’s decision in Mallak and the principle that fairness in administrative decision-making entails reasoned explanations, especially where the Agency’s position had changed from providing reasons to withholding them.

The court found the Agency’s affidavits deficient in explaining the decision-making process or the reasons for departing from the earlier findings, which undermined the fairness of the process and the ability of the Applicant and the court to assess the lawfulness of the decision.

Consequently, the court concluded that the Agency must provide reasons for the impugned decision. It also noted that the constitutional and ECHR issues raised against the State respondents would fall away if the Applicant succeeded against the Agency, which the court considered likely given its findings.

Holding and Implications

The court ordered that the Child and Family Agency must furnish the Applicant with the reasons for its decision deeming her allegations unfounded. The matter was reserved for further hearing on the final reliefs, redactions, and consequential issues, allowing the parties to discuss these issues in the interim.

The direct effect of this decision is that the Agency is compelled to disclose the rationale behind its decision, thereby ensuring procedural fairness and enabling the Applicant to assess grounds for further challenge. No new precedent beyond the application of existing administrative law principles was established, but the judgment reinforces the obligation of public bodies to provide reasons in sensitive and serious investigations affecting individuals’ interests.