Child and Family Agency Carried Out Assessment in an Unfair Manner

James Cross BL, Decisis

January 23, 2023

JPP v The Child and Family Agency [2022] IEHC 737 (High Court (Judicial Review), Owens Alexander J, 13 December 2022)

The High Court granted judicial review of a decision by the Child and Family Agency that an allegation of sexual abuse was well-founded, on the grounds that the Agency carried out the assessment in an unfair manner in that it failed to afford the accused an opportunity to respond.

Child law – judicial review – whether social workers of The Child and Family Agency (TUSLA) carried out an assessment in an unfair manner – assessment concluded that an allegation of sexual abuse was well-founded – procedural rules provide that an adverse “provisional conclusion” is final, unless the factual conclusions which underpin it are displaced – deciders drew their ‘provisional conclusion’ when they should have been keeping an open mind – should have canvassed the views of the accused – declined to make herself available for cross examination – the deciding social workers proceeded to make a final determination – appeal – terms of reference – refused to engage except on his own terms – wanted full de novo appeal – appeal deemed abandoned – TUSLA had a statutory duty to investigate the allegation – not given copies of notes of the interview with complainant and the other interviewees – did not have an opportunity to respond – decision – reasons for decision – demanded complainant be available for cross-examination – no new information had been received or considered since the provisional conclusion – stages of investigation – fairness dictates that they be given an opportunity to respond to materials – no absolute rule that a person who is the subject this type of assessment is entitled to confront a person who has made a disclosure or carry out a cross examination – judicial review granted

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