Court of Appeal: Application for judicial review of ongoing child abuse investigation was made prematurely

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The High Court had granted orders requiring the CFA to allow the respondent in the investigation to cross-examine the complainant in circumstances where the investigative stage of the proceedings had been completed, and where the request for cross-examination was only made at the appeal stage of the process.

Finding that the application for judicial review had been made prematurely, Mr Justice Hedigan said that judicial review in ongoing CFA investigations should be rare so to minimise the devastating consequences for all parties involved.

Background

In 2016, PK brought an application for judicial review to the High Court, in relation to an investigation by the Child and Family Agency which was being conducted on the basis of child sexual abuse allegations made against him by one of his daughters, “LOM”. The Court heard that PK had two daughters from two relationships; LOM born in 1995, and NK born in 2004.

PK’s relationship with LOM was described as being “initially a very distant one”, which became close after she was in hospital for appendicitis when she was 6 years old. The closeness of this relationship was said to have ended in or around 2007 when LOM was 12 years old.

PK’s relationship with NK was described as being “much closer”, with regular access until April 2013 when NK’s mother “contacted the HSE as a result of complaints made to her by LOM that PK had regularly sexually abused her in a non-contact manner during the time when she was 8 to 12 years old”.

Child and Family Agency Investigation

The complaint to the HSE was pursued and an investigation was conducted by the CFA pursuant to s.3 of the Childcare Act 1991. Notably, the CFA investigation commenced shortly before LOM turned 18.

As part of the investigation, LOM was interviewed by specialist interviewers at St. Clare’s Unit, Temple Street Hospital, where it was concluded in a report in November 2014 (“the first report”) that PK had committed child sexual abuse and recommended that he not have any unsupervised contact with children. The first report was not provided to PK until October 2015.

PK appealed the decision, meeting with the CFA appeal panel in December 2015; however the appeal panel produced a report in January 2016 containing provisional conclusions rejecting PK’s appeal and requested comments from him. PK’s solicitor replied seeking cross-examination of LOM – which was refused by the panel in March 2016, instead inviting PK to submit written questions. It was at this stage that PK was provided with the CFA’s policy on s.3 investigations.

In May 2016, PK’s solicitor threatened judicial review if cross-examination was not afforded, to which the appeal panel replied seeking more time to consider the matter. The Court heard that two follow-up letters sent in June 2016 were not replied to by the appeal panel.

Thereafter, PK’s solicitor wrote to the CFA Office of Legal Services seeking cross-examination of LOM, and again warning of the judicial review proceeding – the reply was that the conduct of the CFA appeal panel was not a matter for the CFA, and that written questions sufficed for fair procedures.

Judicial Review

PK applied for leave to seek judicial review, and in November 2016 the High Court delivered judgment in his favour.

The High Court ordered, inter alia, a declaration that the CFA was obliged to set aside the first report, and to allow PK’s appeal to the appeal panel in the event of the CFA failing to provide PK with the right to cross-examine the complainant within two months. Furthermore, an order that the CFA be restrained from any further action in relation to the investigation or from relying on the first report until the right to cross-examine in afforded. Mr Justice Hedigan explained that the High Court’s findings in regard to cross-examination was based on PDP v. Board of Management of a secondary school and HSE IEHC 189, in which it was held that fair procedures required that the complainant, who had become an adult, be made available for cross-examination.

Court of Appeal

The CFA appealed the orders of the High Court on the basis that the application for judicial review was premature due to the fact that the appeal process had not been concluded. Among the 12 grounds of appeal, the CFA submitted that the High Court embarked on its own inquiry into the merits of the case before the CFA; that it had raised five separate issues not raised by the parties and proceeded to rule upon them; and that it erred in ordering cross-examination where it had not been sought during the investigative stage on the CFA’s inquiry.

PK submitted that the High Court had acted within jurisdiction, and had made no orders other than those limited to the fair procedures matters raised by PK in his pleadings. It was also submitted that PK had only obtained legal aid for the review stage, and that he was a man with “minimal understanding of his rights and should not be considered to have waived his right to cross-examine the complainant”.

In the Court of Appeal, Mr Justice Hedigan noted that no challenge was made to the procedures followed by the CFA in the investigative stage of the process. It was also noted that, save for the cross-examination point, no issue was taken with the procedures followed by the review body.

Mr Justice Hedigan said that for the Court to proceed with an application for judicial review where the application is premature, it usurps the function of the respondent body which is actually charged with the task of doing so. In this regard, Mr Justice Hedigan said that the principles which should guide the Court were outlined in Rowland v. An Post 1 IR.

Mr Justice Hedigan said that the two key questions identified in Rowland were:

Furthermore, the Court had to consider the significant margin of appreciation afforded to decision makers as to how their investigation process is conducted.

Mr Justice Hedigan said that it was “inappropriate and unfair” of the High Court judge to make the criticisms of the CFA which he did in his judgment, and that it was clear he had gone far beyond the one issue of cross-examination which was raised by PK.

Considering I. v. HSE IEHC 159, Mr Justice Hedigan emphasised the particularly sensitive nature of child abuse investigations, and said that investigations should be completed before judicial review applications are made so to allow the expeditious conduct of one single set of proceedings and minimise the devastating consequences for those involved. As such, Mr Justice Hedigan found that the application or judicial review must fail because it had been made prematurely.

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