Jun 29, 2010
Recent High Court Judgments on Interagency Cooperation in Irish Child Care
Two recent High Court judgments highlight the attitude of the Irish courts to interagency cooperation in child protection. On the one hand, it is seen as an indispensible tool in combating child abuse, but it must take place in a way which is administratively sound in order to safeguard the rights of alleged perpetrators.
Child abuse can come to light in different ways – through direct disclosure by the victim, either soon after the abuse or many years later, through medical professionals diagnosing conditions or injuries which cannot be easily explained as accidents or by teachers observing behaviour which causes concern. Evidently then, a variety of people encounter potential child abuse in their professional lives and could be said to have a moral obligation to make their concerns known to the relevant authorities in order to prevent the child coming to further harm, thereby ensuring that interagency cooperation is one of the key methods of preventing abuse. One of the most important aspects of interagency cooperation is the communication of suspected abuse to all relevant bodies and the formulation of a comprehensive and rapid response which ensures that children are not placed at any further risk by suspected abusers.
The legal framework of child care and protection in Ireland is provided by the Child Care Act 1991. Section 3 (1) of the Act imposes a duty on health boards (now the Health Service Executive or HSE, the terms will be used interchangeably below) to promote the welfare of children who are not receiving adequate care and protection. This duty lies at the centre of the Irish child care system. It is important to bear in mind that the section imposes a positive duty on protect children at risk. This duty can be fulfilled in two ways – the identification of children not receiving proper care and the coordination of information of information from relevant sources, such as police and schools. The obligation to share and collect information is supported by the Children First Guidelines (1999, 2010). Two recent High Court judgments have thrown some light on the role of HSE in investigating complaints of child abuse. The decisions in MI v HSE [2010] IEHC 159 and in P v A Secondary School [2010] IEHC 189 help to clarify, to some extent, the courts’ attitude to interagency cooperation.
The genesis of these decisions lies in the interpretation given to s. 3 of the Child Care Act in the 1998 judgment of MQ v Gleeson [1998] 4 IR 85. Here the applicant was enrolled on a child care course which involved a placement in a children’s play centre. Long standing abuse allegations against him were known to the health board but no criminal proceedings had been taken against him and no protective proceedings initiated regarding his children. However, when the health board learned of his enrolment on the course they contacted the course providers who then excluded him from the placement. The disclosure and the exclusion were upheld by the High Court as being in line with the health board’s duties under the Act. What was interesting was the statement by Barr J that the obligation to protect children extended to “children not yet identifiable who may be at risk in the future by reason of a specific potential hazard to them which a board reasonably suspects may come about in the future.” This effectively extends the duty of protection to any child who may suffer harm as a result of danger which the HSE knows about. That duty is discharged by contacting relevant bodies to notify them of concerns about potentially dangerous individuals. This communication must be done solely for the purpose of protecting children. It is not meant to represent a judgment of guilt; it merely ensures that a fair assessment of the complaint can be made by sourcing further information and notifying other relevant bodies of potential dangers. In order to make a fair assessment of each complaint, the accused person should be given information about the complaint and afforded an opportunity to respond in writing. The MQ judgment represents a compromise between the HSE’s obligation to protect children through a process of information management and the procedural protections afforded to accused persons by the rules of natural and constitutional justice.
The two recent judgments give some guidance on how that compromise may be carried out in practice. In the MI case, the applicant had been accused of sexually abusing a 13-year-old girl. He sought to prevent any HSE investigation taking place until criminal proceedings against him were resolved, and preventing the dissemination of any information about the case. Hedigan J saw the case in the following terms: “This type of investigation is a most serious obligation that falls on the respondent. The safety of vulnerable children is at stake. Such an investigation should always occur at the earliest possible time after the risk to a vulnerable child is apprehended and before the risk crystallises into actual harm.” He then reiterated the importance of communication between professionals with a child protection aspect to their work, seeing it as vital to the efficacy of any investigation. The disclosure of any information must be minimal and necessary, strictly targeted to specific child protection concerns. All of this is possible, he argues, in creating a fair balance between state, accused person and vulnerable child.
The P judgment represents an example of how interagency cooperation should not be done. In November 2001 the health board received information about potential sexual abuse committed by a teacher against a pupil in his secondary school. The Gardaí were not notified until January 2002 and the accused until July 2003. Several meetings were requested by the health board to discuss the allegations, which the teacher refused to attend having been denied any information about the allegations in advance. He was told that if he continued his refusal, his employers would have to be informed. This happened in December 2003. Between January and November 2005, no social worker was assigned to the case by the health board, apparently due to lack of resources. In December 2005 the health board accepted information from the victim’s counsellor in America (where the victim now resided) that the complaint of sexual abuse was verified, not on the basis of any investigation but on the consistency of his account and the emotional reactions he displayed. Following this, an interagency meeting took place in February 2006, the first time when the school had sight of all the relevant material. At this stage a social work report was commissioned which expressed the view that the teacher posed a serious risk to children and he was placed on administrative leave by his school. He was not invited to the meeting at which this decision was made, nor could he make any representations on the subject. This was rectified when the school met to renew his suspension. The suspension was revoked in January 2007, but the teacher chose not to resume his employment while still under a cloud of suspicion. Turning to the result, many of the reliefs claimed by the applicant had actually been conceded by the respondents prior to trial, but O’Neill J refused to prohibit any future investigation given the public interest in discharging the protective obligations imposed by s 3 of the Act.
The extraordinary chain of events outlined above is merely the highlight reel of a shockingly bad investigative and collaborative process. The court unsurprisingly criticised the health board very heavily. O’Neill J agreed with the broad formulation of the state’s protective duties as outlined in MQ and recently restated in MI, although the latter decision was not cited in the judgment. However widely the state’s duty to protect children is drawn, it cannot be said that the approach taken by the health board served either to adequately to protect children or to preserve some semblance of administrative rights of the teacher. In the first instance, it was three months before the police were contacted, two years before the school found out and four and a half years before an interagency meeting was called. Such delays placed a large number of students at serious risk. The potential danger posed to children in the teacher’s care may have crystallised into actual harm because of the delays in beginning the investigative process. In the second, the time gaps involved between the various stages and the delegation of the investigative process to an American counsellor (who it must be said, followed the rules of her own jurisdiction) compromised the teacher severely in any attempt to clear his name.
These recent cases highlight the necessity for clear lines of communication between the various child care professions. While the revision of the Children First Guidelines are helpful, they remain just that – guidelines. Without any proper statutory obligation to cooperate, agencies will never really fulfil the purpose of the Child Care Act – to ensure that children and families are properly supported before crises emerge and when they do, to ensure that state intervention leads to a positive outcome for the child concerned. Debates surrounding mandatory reporting and vetting systems can, at times, cloud the issue of cooperation. Common sense tells us that these responses are worth considering, but the first thing to do is to ensure that every agency involved in a child’s life has all the information it needs, when it needs it, to deliver safe delivery of child care services.
