Court quashes decision to investigate alleged historic child sex abuse case

Mr Justice Simons said the incorrect standard of proof was applied in the Child and Family Agency's subsequent investigation. File photo

A Child and Family Agency (CFA) decision to investigate historic child sex abuse allegations against a man in his 60s has been quashed by the High Court.

However, Mr Justice Garrett Simons said while the CFA retains a discretion to investigate the complaint further, it is not under an obligation to do so. The power to investigate historical abuse and to make findings which can be published to an alleged abuser's family and employer "must be exercised in a reasonable and proportionate manner", he said.

The case arose out of alleged incidents in the summer of 1969 when the complainant was a nine- or 10-year-old boy and was doing odd jobs in a hotel. The alleged abuser was a young man or teenager and also working in the hotel.

The complainant claimed he was lured into bed in the hotel on three separate occasions that summer. He said they were "playing with each other", no force was used and thought it was harmless at the time.

The older boy told him not to say anything to anyone. The complainant believes it may have played a part in his mental breakdown at age 23 and to having ongoing mental issues.

Both men are now in their 60s.

The CFA was first notified of his complaint in 2013. He was interviewed by a social worker and he then made a complaint to the gardaí. However, efforts by the CFA to follow up the complaint with him met with no response.

By 2015, the DPP decided not to institute proceedings and about a year later the CFA closed its file on the case. However, it reopened it again in November 2017 after it was referred to the CFA's specialist inquiry team.

The first time the alleged abuser was notified of the complaint was May 2018 and he denied the allegations or that any bodily contact took place. It was suggested the allegations were malicious and there had been "aggro" between the parties in relation to certain matters, Mr Justice Simons said.

The alleged abuser then brought High Court proceedings challenging the CFA's decision in July 2018 to reach a "provisional conclusion" that some sexual contact had occurred.

The alleged abuser argued the court should restrain further inquiry. The CFA conceded the 2018 decision was invalid and should be set aside but said it was entitled to continue its inquiries.

Today's ruling

Today, Mr Justice Simons said the CFA decision to close its file in September 2016 was lawful as was the subsequent decision to commence a fresh investigation.

However, the manner in which it carried out that subsequent investigation was unlawful, he said. The incorrect standard of proof was applied, one of the two CFA decision-makers had never met the complainant and there was also a failure by the CFA to disclose to the alleged abuser its 2016 decision to close the file.

The July 2018 decision on a fresh investigation was therefore quashed, the judge said.

It would not be appropriate to direct the CFA to reconsider the matter, he said. It was however a matter for the CFA to consider whether to commence a further investigation.

In the event it does so, it must be conducted in accordance with the requirements of natural and constitutional justice, he said.