Social workers should have kept an open mind rather than coming to a particular conclusion that a man sexually abused a teenage girl, the High Court has ruled.
Mr Justice Alexander Owens found that fair procedures were not afforded to the man during the investigation by the Child and Family Agency (CFA) social workers.
He ordered the CFA, also known as Tusla, to carry out a new investigation under different social workers.
The girl first made a complaint about the alleged abuse when she was 14, first telling her mother before she was interviewed by a social worker. She also made a statement to gardaí but the Director of Public Prosecutions eventually decided not to prosecute the man.
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The CFA still had a statutory duty to investigate but this did not start until 2018, by which time the complainant was an adult.
The man was provided with copies of her statements to gardaí and social workers.
The deciding social workers reached a “provisional conclusion” that the evidence demonstrated on the balance of probabilities that he posed a potential risk towards children because it was likely that an allegation of sexual abuse levelled against him by the girl was true.
Mr Justice Owens said the procedural rules provide that an adverse “provisional conclusion” is final unless the factual conclusions underpinning it are displaced.
The decision-makers in this case drew their provisional conclusion “when they should have been keeping an open mind”, the judge said.
They should have canvassed the man’s response to what the girl stated to them in interviews before proceeding to the next step, he said.
They promised to revert to the man before making the “provisional conclusion but they did not honour this commitment”, he said.
After being notified of the provisional conclusion, the man’s legal representatives requested that the girl, now a woman, be made available for cross-examination.
The woman declined to make herself available for cross-examination and the deciding social workers proceeded to make a final determination against him.
While he initiated an appeal against the decision, he refused to participate in any appeal otherwise than on his terms. He demanded a full new hearing on the merits with a right to cross-examine the girl and he did not engage with the appeal panel. His appeal was eventually treated as abandoned.
He then brought High Court judicial review proceedings challenging the decision.
Mr Justice Owens said that, absent good reason, a person faced with an allegation of sexual abuse must be given an opportunity to test that allegation by putting questions to an adult accuser.
Refusal by an adult to submit to questioning will not of itself be a good reason for dispensing with this requirement of procedural fairness, he said.
Lack of compellability of an adult cannot be relied on as a good reason for such a course, he said. Unjustified refusal by an adult to participate in this part of the process is not a “right of the complainant”, he said.