THE HIGH COURT
JUDICAL REVIEW [2025] IEHC 263
BETWEEN
G.H.
APPLICANT
AND
TUSLA CHILD AND FAMILY AGENCY
FIRST RESPONDENT
AND
IRELAND
SECOND RESPONDENT
AND
THE ATTORNEY GENERAL
THIRD RESPONDENT
AND
X.Y.
AND
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSON
NOTICE PARTIES
Judgment delivered by Mr. Justice Micheál O'Higgins on 8th April 2025
Introduction
1. This is a challenge to a decision of the Child and Family Agency deeming the applicant's allegations of historical abuse to be unfounded. The case raises issues of locus standi, fair procedures and the need for public law decision-makers to give reasons for their decisions.
2. The applicant who is now a qualified social care worker was placed in foster care by the HSE in the first named notice party's home when she was a child. Some years later in 2015, the applicant made a complaint to the first respondent, the Child and Family Agency (the "Agency"), about emotional and physical abuse and neglect suffered by her during her placement. The allegations were assessed by the Agency under procedures adopted to give effect to its child protection mandate under s. 3 of the Child Care Act 1991 (the "1991 Act").
3. The Agency concluded by a report in May 2017 that there were concerns about how the foster carer had behaved during the placement. The applicant's concerns were categorised as "serious concerns". The report noted inter alia that the applicant's account was consistent, and that "other children raised similar concerns". The report was issued to both the applicant and the foster carer (hereinafter "the notice party") in May 2017.
4. In September 2018, the applicant commenced plenary proceedings against the Agency and the notice party for injuries and mental distress allegedly caused to her as a result of their negligence and breach of duty in respect of her placement in care as a child.
5. At some point in 2019, the applicant was informed that the original investigation into her complaint was flawed, and that a new investigation would be conducted. It is not clear how this arose, and no explanation or context has been provided in the affidavits filed by the Agency in these proceedings.
6. The applicant's complaint was investigated by the Agency over approximately a five-year period between 2018 and 2023. At several points during this period, the applicant voiced her concerns about the conduct of the investigation, the delay involved and the failure to keep her informed about the progress of the investigation
7. The applicant was interviewed by social workers, and she pointed to evidence which she maintained was relevant to the investigation; she informed social workers that there may be counsellor's notes which would be of assistance and named some four individuals who she contended would support her allegations.
8. In early January 2023, the applicant received an indication that the first respondent intended to conclude its investigation and find her complaints unfounded. The applicant and her solicitor sought clarity as to the true position and sought access to the information upon which the final decision would be based.
9. Unbeknownst to the applicant, a final decision had in fact already been made on the 19th December 2022 declaring the applicant's allegations to be "unfounded". The final conclusion and report were provided to the notice party but not to the applicant (para. 23 of the Agency's amended statement of opposition). However, no further details about the December 2022 decision have been provided in the Agency's affidavits.
10. The applicant received notice of the Agency's conclusion that the allegations were unfounded by letter dated the 10th July 2023. I will come back to the detail of that letter presently, but for the moment it can be noted that the letter provides no reasons for the Agency's conclusion. Nor does the letter refer to the decision of the 19th December 2022. In point of fact, the first time the applicant learned of the decision of the 19th December 2022 was when the Agency delivered its statement of opposition in the present proceedings.
These judicial review proceedings
11. The applicant challenges the decision of the Agency deeming her allegations against the notice party to be unfounded, as notified to her on the 10th July 2023. She seeks various declarations as to the alleged inadequacy of the procedures applied by the Agency in her case, including declarations that the Agency's procedures are ultra vires s. 3 of the 1991 Act.
12. The second and third respondents ("the State respondents") are joined in the proceedings in circumstances where the applicant alleges that s. 3 of the 1991 Act is invalid, unconstitutional and incompatible with the European Convention on Human Rights ("ECHR") if it permits the Agency to carry out investigations without reference to an independent decision maker and/or if it permits the Agency to deprive the applicant of a "right of appeal" against a finding in respect of a complaint of abuse.
13. It seems to me that the State respondents were joined to the proceedings out of an abundance of caution. Counsel for the applicant emphasised that the constitutional issues as against the State respondents would only fall to be determined in the event that the applicant's primary case as against the first respondent was unsuccessful. In truth, the case as pleaded against the State respondents was never really developed in oral submissions and was not pursued with any degree of vigour. For reasons that will be clear later, I have decided that it is ultimately not necessary for the court to consider the case against the State respondents.
14. For completeness, I should mention that the notice party was represented before the court and made brief submissions. The second named notice party, the Irish Human Rights and Equality Commission ("IHREC"), did not participate.
Preliminary issues
15. Before addressing the substantive issues, I will firstly consider two preliminary issues raised by the respondents. Firstly, it is contended that the proceedings are out of time in that they were brought outside the three-month time limit provided in O. 84, r. 21 RSC. Secondly, it is contended that the applicant lacks locus standi to maintain these proceedings.
16. The first issue need not detain us for very long. Leave to issue these proceedings was granted by Hyland J. on the 6th November 2023. If the three-month time clock commences to run from the date of the Agency's letter of the 10th July 2023, that means that the time limit expired on the 9th October 2023. Since leave was not granted until approximately one month later on the 6th November 2023, the respondents plead a time point and assert a failure on the applicant's part to justify an extension of time under the Rules. However, in the course of oral submissions, counsel for the applicant pointed out that the leave application was formally opened on the 9th October 2023 (the last day of the three month period) and that this was apparent from the second line of the order of Hyland J. granting leave.
17. While technically it might be said that an extension of time is necessary in respect of the applicant's challenge to the (undisclosed) decision of the 19th December 2022, it is agreed by the respondents that this decision was not notified to the applicant either at that point or indeed at any stage since. Moreover, the first respondent's amended statement of opposition deletes para. 10 from the original statement which complained that the applicant's proceedings were flawed in not seeking to quash the final conclusion report of the first respondent dated the 19th December 2022. It is fair to record that when it was brought to the court's attention that the leave application had been formally opened within time, that effectively brought to an end the respondents' time objections.
18. In any event, insofar as an extension of time may be needed to challenge the undisclosed decision of 19th December 2022, I am satisfied that the interests of justice favour granting such an extension. Good and sufficient reason for extending time has been identified and the applicant has demonstrated that the delay in challenging the decision arose from circumstances beyond her control. The applicant was neither aware, nor could have been aware, of the decision of 22nd December 2022. The decision of 10th July 2023 was challenged within time.
Locus standi
19. Turning to the second preliminary issue, para. 5 of the Agency's statement of opposition (and its amended statement) includes a plea that the applicant does not have sufficient interest or locus standi to maintain these proceedings. No such plea is included in the statement of opposition of the State respondents.
20. Before addressing the case law on this issue, I think I should firstly make a few observations on the facts of the case, as many of the factors that have a bearing on locus standi also have a bearing on substantive issues, including the main issue concerning whether the first respondent is under a duty to give reasons.
21. The allegations made by the applicant mainly relate to allegations of neglect and emotional abuse, with some limited allegations of physical abuse. While serious, the allegations are not at the highest end of the overall spectrum of potential abuse. In making that observation, I am not in any sense minimising the seriousness of the applicant's complaints, but simply acknowledging that cases of this nature can cover a wide spectrum of different types of offending and misconduct. The allegations relate to an important and pivotal stage of the applicant's life, namely her childhood, when she was in the care of the notice party who at that point was tasked with her care and protection.
22. MacGrath J. observed in F.A. v. Child and Family Agency [2018] IEHC 806 that the task of the Agency in relation to the investigation and determination of whether an allegation of child abuse of a sexual nature (on the facts of that case) is founded or unfounded is a difficult one. The failure to properly investigate an allegation of such nature may have devastating consequences for a child at the centre of the inquiry, or other children who may be at risk and whose interests are paramount in accordance with Article 42A of the Constitution. On the other hand, the advancement of an allegation of abuse against the subject of an investigation may have serious consequences for the person concerned, in terms of their overall life, employment relations and general reputation within the community.
23. In the present case, two highly relevant factors are the fact that the applicant is no longer a child and the fact that the notice party is now an elderly woman in her 80s. The latter factor is undoubtedly a factor to weigh in the scales when considering whether, as a matter of justice, the first respondent's investigation should be reopened. Of course, that is a separate question as to whether the Agency should be obliged to give reasons for a decision.
24. On the other side of the coin, there is no suggestion in the present case that the applicant's complaints about her experiences in the notice party's care are in any sense trivial, de minimis, delusional or vexatious. Indeed, as of 2017, the concluded view was that the complaints raised "serious concerns" about the notice party, that the outcome had implications for further placement with the family and that the Agency's investigations up until that point in time revealed that other children raised similar concerns in relation to their care.
25. A further factor of relevance to the question of the applicant's interest in these proceedings is the reality that the first respondent offers no explanation whether, and on what basis, the original findings in 2017 were set aside or departed from and a fresh investigation commenced. Of course, I do not in any sense exclude the possibility that this may have occurred for good reason. However, since no reasons have been advanced, it is very difficult to form an assessment on this issue.
26. The applicant's judicial review papers make clear that she had a significant level of engagement with various social workers when carrying out their investigative duties on behalf of the first respondent during the period 2017 to 2023. The applicant provided social workers with an extensive bank of information, the names of potential witnesses, and detailed accounts as to her experiences during the placement. She clearly viewed the investigation as an important matter from her point of view because at various stages throughout the investigation she contacted the Agency for updates and complained about the delay.
27. In Hogan, Morgan and Daly, Administrative Law in Ireland, 5th Ed., (Round Hall, 2019) the authors observe at para. 18-229 that the modern tendency of the courts in common law countries is to move away from a technical approach to locus standi towards a rationalisation of standing requirements based on considerations relating to the general administration of justice and the separation of powers. The authors refer to recent dicta to the effect that the standing rules are merely rules of practice which may be relaxed if there are "weighty countervailing considerations" justifying a departure from the ordinary rules. The authors go on to say that while there are still relatively few cases where a bona fide applicant failed on the basis of standing, there is also a line of contemporary case law emerging which shows a move away from what might be termed an ultra-liberal approach. The authors discuss two modern decisions which illustrate the more liberal manner in which the Cahill v. Sutton ([1980] IR 269) principles have been applied.
28. One such case is the decision of the Supreme Court in Mohan v. Ireland [2021] 1 IR 293. Mr. Mohan was a male candidate who sought a nomination from Fianna Fáil in the 2015 General Election for the Dublin Central Constituency. The Electoral (Amendment) (Political Funding) Act 2012 provided for enhanced state funding for political parties who met a quota of female candidates. The other prospective candidates were female, and the general secretary of the party accordingly directed that the candidate selected must be a woman. Mr. Mohan maintained that this quota system was unconstitutional, but both the High Court and the Court of Appeal held that he lacked the requisite standing to bring the challenge. The Supreme Court disagreed. Stressing that Henchy J. had referred in Cahill v. Sutton to "interests", O'Donnell J. (as he then was) noted that "interest" is a deliberately broad term, extending beyond constitutional or even legal rights. It is sufficient if a person is affected in a real way in his or her life.
29. Applying that test here, I am satisfied in the overall circumstances of this case that the applicant has demonstrated that her interests were engaged in the first respondent's decision-making process. The decisions of the Agency that are under challenge in these proceedings affected the applicant in a real and meaningful sense. The complaint to the Agency concerned matters of importance to her childhood, her wellbeing in early life, her relationship with her foster carer and her relationship with other children. The issues raised were confidential and sensitive and had implications for her dignity and personal sense of wellbeing. In my view, the applicant has a clear interest in ensuring that the complaint she made to the Agency was properly and fully processed in accordance with law.
30. As it happens, the issue of a complainant's locus standi to challenge an outcome of "unfounded" in an Agency decision making context directly arose for consideration in a case before the High Court entitled D.M. (A Minor) v. Child and Family Agency and R.K. [2022] IEHC 716. In that case Phelan J. stated the following on the issue of locus standi:
"55. In this case, the Applicant is the complainant in a statutory process. Whilst the purpose of the process is not to determine rights inter partes and has been found in earlier cases not to amount to a vindication of a victim's rights, it seems to me that the Applicant has an interest in ensuring that her complaint is processed in accordance with law. Indeed, the observations of Butler-Sloss LJ in Regina v. Harrow London Borough Council, ex parte D [1990] 3 All E.R. 12 (quoted by MacGrath J. in FA v. CFA [2018] IEHC 806) made in respect of the statutory framework in operation in England merit repetition...
56. The force of these comments is in the recognition that the assessment process is part of a protection package for a child and the process is concerned not only with the rights of the accused person but also with the welfare of the child. In F.A. v Child and Family Agency [2018] IEHC 806, the task of the Agency, charged as it is with very weighty and serious duties under s. 3 of the 1991 Act, was acknowledged as not an easy one, particularly in relation to the investigation and determination of whether an allegation of child abuse of a sexual nature is founded or unfounded. As MacGrath J. observes in F.A., the failure to properly investigate an allegation of such nature may have devastating consequences for a child at the centre of the inquiry, or other children who may be at risk. He observed that in line with the requirements of Article 42A of the Constitution, the paramount consideration in the s. 3 process is and must be that of the welfare of the child.
57. As recognised by the Supreme Court, albeit in the context of constitutional challenge to legislation, in Mohan v. Ireland [2021] 1 IR 293, "interest" is a deliberately broad term, extending beyond legal rights. In Mohan it was concluded that it was sufficient if a person was affected in a real way in his or her life. I consider that the Applicant, as a victim of alleged abuse, has an interest in ensuring that public agencies with a legal mandate to promote her welfare and to protect others from similar abuse properly discharge that mandate. Further, as acknowledged in Lancefort Ltd. v. An Bord Pleanala [1999] 2 IR 270 (Keane J.), there is a public interest in ensuring that public bodies obey the law which mitigates a narrow approach to recognising the interest of the Applicant as a child complainant."
31. I respectfully agree with Phelan J.'s analysis. In my view, the position here is clearcut and not marginal: the applicant has locus standi to maintain this challenge.
Duty to give reasons
32. I turn now to consider what I regard as the main issue of substance in the case, namely the question as to whether the first respondent is under a legal duty to provide the applicant with reasons for the impugned decisions. The amended statement of grounds at para. E (c) says that the first respondent erred in law in failing to provide the applicant with reasons for the decision dated 10th July 2023 and/or the decision dated 19th December 2022. Case law makes clear that the question of whether a decision maker is obliged to give reasons for public law decisions affecting a person's interests will depend on a range of factors including the nature of the decision-making process, the importance of the issues raised, whether the issues engage constitutional entitlements and a range of other factors framing the context of the question.
Unusual features of the case
33. Before examining the law on this issue, I think it would be helpful to identify a number of unusual features about the proceedings which in my view have a bearing on the duty to give reasons question.
34. First, in relation to the underlying allegations, the Agency concluded in May 2017 that there were "some matters of concern" with respect to the notice party; that other children had raised similar concerns in respect of their care; that the applicant had provided a consistent account of her allegations in her interviews on the 2nd July 2015 and the 13th February 2017; and that the outcome of the Agency's investigations in 2017 had implications for further placements being made with this particular family.
35. Second, the overall length of this investigation - if one combines the two processes, from 2015 to 2023 - requires proper explanation. At first blush, the delays involved seem inordinate.
36. Third, the Agency had no objection to sharing with the applicant the reasons for its conclusions in 2017. However, by December 2022 and/or July 2023, the Agency's position had fundamentally changed. The Agency was now insisting, in relation to the same underlying allegations, that it was not obliged to give reasons for its decision and secondly, was not obliged to provide the complainant with a copy of the report relating thereto. In my view, the difference in the approach adopted by the Agency as between the two separate processes is stark and difficult to reconcile. No attempt has been made in the opposition papers to reconcile or explain the contrasting positions.
37. Fourth, the Agency neglected to inform the applicant of the outcome of the CASP (Child Abuse Substantiation Procedure) investigation in December 2022. This too is unexplained. The letter notifying the applicant of the conclusion that the allegations were "unfounded" inexplicably makes no reference to the actual decision of December 2022. In fact, the letter of the 10th July 2023 reads as if it is the formal record of the Agency's decision on the complaint.
38. Fifth, both sides have criticised each other's pleadings in this case. The first respondent criticises the applicant's case as making wide ranging assertions without engaging with relevant legal frameworks so as to establish a legal entitlement to the relief sought. For her part, the applicant criticises the paucity of information in the first respondent's affidavits which are said to be formulaic and deficient for failing to shed light on the decision-making process. In my view, there is force to the criticisms of each side. On the applicant's side, the pleadings and written submissions are unfocussed and many of the legal arguments are simply not developed. On the first respondent's side, I regard it as unsatisfactory that the affidavits are so uninformative and bare and provide virtually no context or explanation for the decision-making process followed by the Agency.
39. The duties as to candour and pleadings in a public law case were the subject of discussion in a recent decision of the Court of Appeal (Butler J.) in Elsharkawy v. Minister for Transport [2024] IECA 258 at paras. 38 - 46. I don't propose to repeat what is said there, save to reiterate the point made that the legal and regulatory framework within which most public authorities work is now imbued with an ethos of openness and transparency which may have been lacking in earlier decades. In fairness to the Agency's position, no criticism is made of the statement of opposition in terms of its breadth or particularity. However, I do think it is unsatisfactory that the Agency's affidavits are so uninformative and lacking in detail. Some effort should have been made to either explain the decision-making process or, if that was not possible, at least to explain why that was so.
40. I don't underestimate the heavy burden placed on social workers who are tasked with investigating allegations of child abuse, particularly where the allegations are historical in nature. On top of a social worker's day to day duties, the task of assessing whether an allegation is "founded" or "unfounded" is onerous and difficult and likely to be stress-inducing. Moreover, where an allegation is determined to be unfounded, the additional task of having to explain this to a disappointed complainant must also present particular challenges. Generally speaking, it will be a matter for the social workers concerned to decide what level of engagement and explanation is necessary in the circumstances of each case. Depending on the facts, it may be appropriate to give a degree of latitude to social workers in deciding how best the competing professional objectives can be achieved, whilst ensuring that the fair procedure rights of participants are observed.
41. Sixth, the letter of the 10th July 2023 which records the impugned decision in these proceedings contains somewhat mixed messages on the question whether reasons for the decision will be made available. The letter reads in material part as follows:
"Dear [Applicant]
We refer to our recent conversations with you on 29/06/2023 and 10/01/2023.
As you are aware, my colleague Suzanne Dunne and I were tasked by Tusla with responsibility of carrying out an assessment of the allegations made by you. The purpose of these assessments is to substantiate allegations and determine if there is a potential risk to children. I am the Social Work Team Leader on this team with line management responsibility.
We are writing to you now to inform you that we have completed our assessment of the allegations and reached a conclusion.
Final Conclusion
The final conclusion of our assessment of the allegations is unfounded.
In reaching this final conclusion, Tusla has taken into account any and all meetings with you and the PSAA (A), along with all the relevant material assembled in the assessment process.
We appreciate you making contact with Tusla and acknowledge that this may have been difficult for you. We aim to treat everyone affected by allegations of abuse with fairness, dignity, and respect while also ensuring that decisions are made in line with law, policy and best practise. Tusla depends on the information provided by you and other people to determine if there is an existing risk to children.
Should you wish to discuss the content of this letter or require clarifications in relation to it, or your rights in relation to data protection, please do not hesitate to contact the Team Leader. She is available by phone on [number given]. If she is unavailable, please leave a message and she will contact you on my return.
There are many people and services available to help you. Please find a list of supports below:
HSE National Counselling Service, [number given]."
42. The balance of the letter goes on to reassure the applicant that her feedback matters. The letter states that the Agency wants to hear from the applicant about her experience of using the service, of what worked and what could improve. Further, it states that if she would like to submit feedback, a particular form should be utilised and returned to the listed email address.
43. One might be forgiven for thinking that the statement "should you wish to discuss the contents of this letter or require clarifications in relation to it... please do not hesitate to contact the team leader" is suggestive of a willingness on the Agency's part to discuss the final outcome and the basis for it. However, a person forming any such impression would be mistaken and disappointed because, in fact, the Agency's steadfast position is that reasons for a decision of this nature will not in fact be given to a complainant. This strikes me as quite an extreme position for the Agency to adopt. In my view, the Agency's suggested approach of never giving reasons to complainants fails to allow leeway for individual circumstances or nuance.
44. Seventh, the letter of July 2023 is unusual in two further respects: first, the complete absence of any underpinning reasons for the Agency's decision. In this regard, it stands in stark contrast to the letter sent to the applicant in May 2017, relating to the same underlying complaint. Second, the absence from the letter of any reference to the final conclusion reached by the Agency in December 2022. The applicant was not notified about the December 2022 conclusion at the time and, as I have said, did not learn about it until the Agency filed its opposition papers in these proceedings.
Summary of the applicant's submissions on the duty to give reasons
45. The applicant's main point under this heading is that fair procedures incorporate an obligation on public law decision makers to give reasons. Reliance is placed on the decision of the Supreme Court in Connelly v. An Bord Pleanála [2021] 2 IR 752 wherein it was said that any person affected by a decision is at least entitled to know in general terms why the decision was made.
46. Reasons must be adequate and intelligible enough to enable the reader to understand why the matter was decided the way it was and what conclusions were reached on the principal controversial issues. The reasons must establish that the decision-maker has directed its mind to the issues it has to consider. Where there is conflicting evidence, ordinarily the decision-maker should state reasons for preferring one party's evidence over another.
47. The applicant emphasises the background context and the relevant fact that at an earlier stage in 2017 a different conclusion was reached. Accordingly, from a factual point of view, the case for requiring reasons is even stronger. As to the general position in administrative law, reliance is placed on the Supreme Court's decision in Mallak, which I will address later in my judgment.
48. The applicant submits that the role and purpose of the CASP investigation is wider than merely assessing any risk posed by the notice party into the future. Moreover, the advanced age of the notice party is not a valid basis for exempting the first respondent from the normal administrative law duty to give reasons to an affected party for a final decision.
Summary of submissions by the Child and Family Agency
49. The Agency submits that investigations of this nature are conducted pursuant to its Policy & Procedures for Responding to Allegations of Child Abuse & Neglect dated September 2014 (the "2014 Procedure") and more recently, pursuant to the CASP introduced in June 2022. These policies find their genesis in the first respondent's obligation under s. 3 of the 1991 Act imposing on it a duty to promote the welfare of children.
50. In respect of current or retrospective disclosures of alleged child abuse, the Agency investigates and assesses the allegation made against an individual in accordance with the natural and constitutional justice to which he or she is entitled. The primary purpose of the assessment is to identify whether an allegation is "founded" or not, and to take such steps as are necessary to ameliorate any risk by implementing necessary protective measures.
51. Accordingly, in the within proceedings, the Agency's processes contained in the policies are designed to inform an assessment of any risk posed by the notice party. The purpose of this "forward-looking" assessment is to determine whether there may be a current or future risk to a child, and assess any such risks. In finding that such a risk does exist, the respondent is entitled to implement protective action to ensure the safety and welfare of children. In conducting any such assessment, the first respondent is not engaging in an exercise to "vindicate" the complainant or substantiate her allegations; nor is it to establish guilt or innocence in relation to an alleged criminal act nor indeed to determine civil liability. The Agency submits that the applicant's proceedings wholly fail to engage with this reality.
52. It is the fair procedures of the person accused of suspected abuse that is at the heart of the procedures and accordant risk assessment, and any perceived interest or right of the applicant cedes priority to the fair procedure rights of the person the subject of the impugned process, namely the notice party. The role of the applicant in the 2014 Procedure and thereafter in the CASP procedure was as provided for in those processes. Insofar as the applicant seeks to rely on the processes, she is confined to the role given to her thereunder. Indeed, the applicant can commence personal injury proceedings seeking damages and/or make a complaint to An Garda Síochána. However, she cannot rewrite, or invite the court to rewrite, the Agency's risk assessment processes.
53. By analogy with the decision of Ferriter J. in Lidl Ireland GmbH v. Chartered Accountants Ireland and Grant Thornton [2022] IEHC 141, the Agency submits that the principal thrust of the present proceedings is misplaced. As in the Lidl case, a policy was implemented which did not impact any rights of the applicant, whether arising pursuant to the policy itself, the 1991 Act, the Constitution or the ECHR.
54. The principle of nemo iudex in causa sua neither applies to the administrative procedures which have been adopted to comply with the first respondent's statutory obligations under the 1991 Act, nor is it an issue that is relevant to the applicant's case. The legal basis for the grounds related to bias and the need for a second "independent" decision maker are not readily understood but, in any event, are rejected.
55. The policies adopted by the respondent seek to balance the requirements of an investigation with the right to fair procedures on the part of the person being investigated. The policies provide for the reaching of a provisional conclusion and a final conclusion to the initial investigation and provide that the person against whom an allegation was made may seek an appeal and/or review in accordance with the right to fair procedures.
56. In oral submissions, senior counsel for the Agency emphasised that the CASP policy, correctly construed, does not provide for the provision to the complainant of the final conclusion of the substantiation assessment, or the rationale for same; it is only the person suspected of alleged abuse who is entitled to receipt of the final conclusion of the assessment. Counsel submitted that a comparison between paras. 20.3 and 20.4 of the CASP policy demonstrates that the authors of the policy drew a clear-cut distinction between the obligation to explain the rationale for a decision to a person the subject of an abuse allegation ("PSAA") in para. 20.3 versus the absence of any such equivalent requirement being owed to a person making the disclosure ("PMD") in para. 20.4. Para. 20.3 makes an express reference to the social worker notifying the PSAA of the final conclusion and the "rationale for same in writing". No such express requirement is referenced in para. 20.4 which details the actions to be taken with respect to the complainant following the final conclusion.
Discussion of whether there is an obligation to give reasons to a complainant
57. In my view the first respondent is correct insofar as it is submitted that the applicant cannot reasonably expect the court to rewrite the risk assessment processes of the Agency. In my view, it is a matter for the Agency, and not the applicant or indeed the court, to decide the wording of the Agency's policies. Undoubtedly, care has been taken in deciding what matters to cover, and not cover, in the Agency's published policies. However, in my view, that is not really the point at issue. The point at issue is whether, as a matter of administrative law, the first respondent is obliged to give reasons for the impugned decision.
58. The mere fact that the Agency may choose in its published policies not to include an express duty to give reasons to complainants does not oust or nullify the Agency's public law obligations in a given situation.
59. There may well be valid reasons why the framers of the CASP policy chose not to make an express reference to any obligation to provide a complainant with the reasons for a decision. Neither the policy itself, nor the two affidavits filed on behalf of the Agency, deals with this issue. Equally, however, I think it is fair to observe that the policy does not contain an express prohibition on disclosing to a complainant the reasons for a conclusion of "unfounded".
60. While the CASP document is undoubtedly PSAA-centred, it cannot be said that the policy ignores altogether the role of the complainant. An examination of the policy shows that the role of the PMD is emphasised throughout the process. I will mention just a few examples:
- Para. 11.6 deals with the notification requirements to the PMD as part of the preliminary enquiry stage.
- Para. 12. 3 deals with certain notification obligations towards the PMD.
- Para. 12.6 refers to the desire to avoid multiple interviews with the PMD.
- Para. 14 and onwards refers to the process of interviewing the PMD.
- Para. 14.5 requires a social worker to keep in touch with the PMD post interview and avoid unnecessary delays.
- Para. 17 and onwards refers to engagement with the PMD where the PSAA requests that questions are put.
- Para. 20 and onwards deals extensively with notification requirements to the PMD.
61. None of this is controversial and indeed is consistent with the contents of the Agency's letter of the 10th July 2023 to the applicant notifying her about the final conclusion. In that letter it is emphasised that the Agency depends on the information provided by complainants and other people to determine if there is an existing risk to children.
62. In my view, the Agency's arguments as to whether there is an obligation to give reasons understates, and fails to reflect, the importance of the role played by a complainant in the entire process. One of the key submissions made on behalf of the Agency was that, because the applicant was not the subject of the risk assessment, she was not entitled to receipt of the final conclusion report or the reasons for same. The Agency argues that even if the applicant is held to have sufficient locus standi to bring the case, there is no basis for impugning a procedure to which she was not a participant, and which was lawfully conducted (para. 52 of the Agency's written submissions). In my view, this is too narrow an outlook because it ignores the reality that a complainant has an interest in ensuring that her complaint is properly investigated and that her allegations against the notice party are accorded such credibility and consideration as they may be due. While I accept the point that it is not the Agency's role to vindicate the complainant or to sanction the alleged abuser, it is clear from the judgment of Phelan J. in D.M. that a complainant has a legitimate interest in ensuring that her complaint is processed in accordance with law. In my view, that important finding builds the argument that there may be circumstances in which the Agency will be under an obligation to provide reasons to a complainant for its final decision. Phelan J.'s judgment in D.M. pre-dated the CASP policy, instead concerning the 2014 Procedure. However, of relevance to the reasons debate according to para. 10 of the judgment, the report of the Appeal Panel was furnished to the complainant, albeit in redacted form.
Case law on duty to give reasons
63. In Sister Mary Christian and Others v. Dublin City Council (No.1) [2012] IEHC 163 at para. 8.16 Clarke J. held as follows:
"The underlying rationale of cases such as Meadows (in that respect) and Mulholland is that decisions which affect a person's rights and obligations must be lawfully made. In order to assess whether a relevant decision is lawful, a party considering a challenge, and the court in the event of a challenge being brought, must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made. What that information may be, may vary enormously depending on the facts under consideration or the nature of the decision under challenge. However, the broad and underlying principle is that the court must have access to sufficient information to enable the lawfulness of the relevant measure to be assessed."
64. Sitting as a member of the Supreme Court, the same judge took the opportunity to expand upon the statement in his judgment in Rawson v. Minister for Defence [2012] IESC 26 at paras. 6.8 to 6.10:
"... As pointed out by Murray C.J. in Meadows a right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine that lawfulness...
6.9 However, where the possible basis for challenge is concerned with the decision making itself then there is the potential for a greater deficit of ready information. Where the possible basis for challenge is founded on an absence of the correct question being addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision will need to know something about the decision making process itself...
6.10 However, if a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person's constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, "rendered either pointless or so circumscribed as to be unacceptably ineffective"".
65. The leading case on the duty to give reasons is Mallak v. Minister for Justice Equality and Law Reform [2012] 3 IR 297. Mallak concerned an application for a certification of naturalisation. The respondent Minister informed the applicant that he was refusing the application, but refused to provide any reasons, insisting that he was not obliged to explain his decision. The applicant was unsuccessful in the High Court. Cooke J. found inter alia that a decision of whether to grant or refuse a certificate of naturalisation was within the respondent's absolute discretion and furthermore, that what the applicant sought was a benefit or privilege to which he had no legal right. The Supreme Court in a groundbreaking decision allowed the appeal and quashed the decision of the respondent. The court held that the rule of law required that all decision makers act fairly and rationally, meaning that they must not make decisions without reasons. The fact that the grant or refusal of a certificate of naturalisation was a matter of privilege, rather than a right, did not affect a person's right to have his or her application considered in accordance with law or to apply to the courts for redress. Moreover, it was not possible for the applicant, without knowing the respondent's reasons for refusal, to ascertain whether he had a ground for applying for judicial review and, by extension, it was not possible for the courts effectively to exercise the power of judicial review. At paras. 66 and 67 of the judgment Fennelly J. stated the following:
"66. In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.
67. Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them." (emphasis added)
66. In Connelly, the Supreme Court stated that as a general approach for considering the adequacy of reasons given by a decision-maker, two requirements must be satisfied: firstly, any person affected by the decision was entitled to know, at least in general terms, why it was made; and secondly, any person affected by the decision was entitled to have enough information to consider whether they could or should avail of any appeal or bring a judicial review of the decision. The application of this general approach may vary greatly from case to case and the type of reasons that will be necessary.
67. A particular feature of the present case which has a bearing on the existence or otherwise of a duty to give reasons is the fact that, in relation to the same underlying complaint, the Agency effectively changed position in the later decision, opting not to give reasons. In such a situation, the requirement of a reasonable explanation of the decision-making process will be enhanced. Y.Y. v. Minister for Justice and Equality [2018] 1 ILRM 109 concerned the deportation of an individual who contended that he would be subject to treatment contrary to Article 3 ECHR if returned to Algeria, his country of origin. Finding for the applicant, O'Donnell J. held:
"[given that] the Refugee Appeals Tribunal has a specific expertise in considering risks in countries of origin, and furthermore has a specific fact-finding role... its views must normally be treated with respect. That entails a reasoned explanation of why the decision maker has come to a different conclusion."
68. In Y.Y., O'Donnell J. made clear that a Minister was not bound to accept the Tribunal's finding. However, the fact that the Minister decided to come to a different conclusion required that a reasonable explanation should be provided. In my view, all things being equal, the same rationale should apply here.
69. On an overall assessment, I find that the accumulation of the following factors renders it appropriate that the Agency provides reasons as to why it concluded that the applicant's allegations against the notice party were unfounded:
(i) In relation to the same allegations, in an earlier decision-making process the Agency had come to a different conclusion;
(ii) The overall length and delays in the investigation, the fact that the Agency's investigation straddled two different written policies, and the fact that the applicant had to repeatedly seek updates on the progress of the investigation reinforce the desirability that the applicant should be given a reasonable explanation for the final decision;
(iii) In the context of that earlier process which concluded in May 2017, it does not appear that the Agency had any objection to sharing the reasons for its conclusion with both the applicant and the notice party. An entirely contrary position is now being insisted upon, and no attempt has been made by the Agency to explain this difference in approach;
(iv) The Agency neglected to inform the applicant of the outcome of the CASP investigation in December 2022. This failure is unexplained;
(v) The first respondent has filed two affidavits which do little more than verify the contents of the statement of opposition and assert that social workers conducted the assessment in accordance with the Agency's relevant policies. The affidavits offer no explanation as to whether, and why, the original findings in 2017 were set aside or departed from and a fresh investigation commenced. As I have said, it may be that this occurred for good and valid reason, but since no reasons have been provided, this cannot be assessed;
(vi) No case is made in the Agency's affidavits that the reasons for the impugned decisions are obvious or that effective judicial review is not precluded;
(vii) No case is made on affidavit that, for reasons of sound policy or principle, or other operational imperative, the Agency is precluded from explaining the impugned decisions;
(viii) No case is made on affidavit that the applicant's right of review should be limited or equivalent to the narrow right of review of a decision of the Director of Public Prosecutions, where special considerations apply (see for example the decision of the Supreme Court in Murphy v. DPP [2014] 1 IR 198);
(ix) Nor do the affidavits provide any explanation as to why the social workers involved in the earlier decision-making process have not sworn affidavits. The Agency's two deponents identify themselves as having directly managed a social worker, Suzanne Dunne, but this is not further explained or contextualised.
(x) Paragraph 20.4 of the CASP policy refers to an obligation to inform the PMD, or their parents if the PMD is a child, that they are entitled to put in a complaint in writing using the Agency's "Tell Us" complaints procedure if they believe they have been treated unfairly. While not determinative of the issue, this provision begs the question of how a complainant knows if they have been treated unfairly if they don't have the reasons for the impugned decision.
(xi) The decision of the Agency to file largely uninformative affidavits which shed little or no light on the decision-making process means that in the present case it is not possible for the applicant, without knowing the Agency's reasons for its change of mind, to ascertain whether she has a valid ground for applying for judicial review of the impugned decision and by extension, it is not possible for this court to effectively exercise its power of judicial review. Applying the logic of the Supreme Court in Mallak, that state of affairs gives rise to a situation of unfairness that warrants intervention.
Case against the State respondents
70. It is agreed between the parties that the case against the second and third respondents will fall away in the event the applicant succeeds in obtaining relief against the first respondent. That being so, in view of the conclusion I have reached on the question of reasons, it is not necessary for me to consider the constitutional issues further.
71. Insofar as the applicant sought other reliefs beyond an order directing that reasons be given, I find that, consistent with the analysis of Fennelly J. in Mallak, the logical sequence to follow is that the decision maker should first provide the reasons for the impugned decision and thereafter, if necessary, a challenge to the validity of the underlying rationale can then be considered. In other words, the cart should not be put before the horse. In all these circumstances, the court does not have to determine the remaining issues.
Conclusion
72. For the reasons stated, I direct that the first respondent should furnish the applicant with the reasons for the impugned decision. I will hear the parties on the final reliefs to be granted, the question of redactions and any consequential issues. In the meantime, it is open to the parties to discuss these issues.
Signed: Micheál O'Higgins
Post-script: By agreement between the parties, the Court made an Order on 11th April 2025 anonymising the names of the applicant and the first notice party and prohibiting the publication of any information that would, or be likely to, identify the parties concerned.
Appearances:
For the applicant, Derek Shortall SC and Michael Kinsley BL instructed by Daly Khurshid Solicitors.
For the first respondent, Feichín McDonagh SC and Jim Benson BL instructed by the Office of Legal Services of the Child and Family Agency.
For the second and third respondents, Colin Smith SC and Shelley Horan BL instructed by the Chief State Solicitor's Office.
For the notice party, Stephen Hanaphy BL instructed by the Legal Aid Board.