Mandatory Reporting clarification from the Court of Appeal regarding historic disclosures of harm

The recent Court of Appeal ruling provides clarification on Mandated Reporting to Tusla – the Child and Family Agency following a disclosure by an adult of historic child abuse to a Mandated Person.  In this article Clare Daly, Solicitor gives an in-depth overview of the recent case and outlines some key points.

Introduction

Children First Act 2015 provides for certain mandated professionals to report concerns of harm to a child, onwards to the Child and Family Agency.  Section 14 (1) provides that “where a mandated person knows, believes or has reasonable grounds to suspect, on the basis of information that he or she has received, acquired or becomes aware of in the course of his or her employment or profession as such a mandated person, that a child (a) has been harmed, (b) is being harmed, or (c) is at risk of being harmed, he or she shall, as soon as practicable, report that knowledge, belief or suspicion, as the case may be, to the Agency.”

The obligations set out in S.14 are unambiguous where there is a real risk to those under the age of eighteen.

However, how these Section 14 obligations should be interpreted in the context of retrospective disclosures of harm in childhood, made at a later point by an adult  has been less certain but has now been clarified by the Court of Appeal.

Background

The appellant, a Director of a Counselling Service and the respondent (the HSE) disagreed as to the scope of s.14 1(a) of the 2015 Act. The appellant contended that the word “child” as used within s.14 1 (a) of the 2015 Act refers only to a person who is a “child” – as defined in the 2015 Act, at the time that the mandated person referred to in s.14 (1) receives, acquires or becomes aware of the information referred to in that section.

The respondent argued that the statutory definition of child should be properly construed within the context of the statute as a whole, and within the objectives of the legislation- that the word “child” includes any person who has been harmed when a child, even though that person may now be an adult.

This disagreement between the parties as to the scope of s.14 (1) (a) of the 2015 Act came to a head following upon the publication by the respondent, on 14th November 2019, of a document entitled the HSE Child Protection and Welfare Policy (the “Policy”).

The National Counselling Service published a proposal for implementation of these guidelines, expressing concerns that, the vulnerable clients who need the services of the NCS will no longer avail of those services if they are informed that any disclosure by them of childhood abuse must be reported to the Agency, even if they do not provide any information identifying the abuser.

Thus, they argued, fewer adults will avail of NCS counselling services, and this in turn will inevitably reduce the extent of existing reporting of historic childhood abuse to the Agency rather than increase it.

It was argued that the respondent, in its directions to counsellors and therapists as set forth in the Policy, has gone further than the 2015 Act requires, to the detriment of both of children who may be at risk of abuse, and adults who are in need of its services.

2021 document ()   required the reporting of retrospective childhood abuse where identifiable information about the person who is the subject of the allegations is disclosed to the counsellor or therapist concerned, or if a current risk to a child or children is identified.

The applicant sought leave to issue Judicial Review proceedings seeking an order of certiorari quashing both the Policy and the 2021 ISOP.

The respondent argued that the 2015 Act places an obligation on mandated persons to notify the Agency of retrospective disclosures of childhood abuse and it is thereafter for the Agency to investigate the notifications as it deems appropriate,

High Court 

In 2022 the High Court had held that section 14(1)(a) of the Act required mandated persons to notify the Child and Family Agency where an adult disclosed retrospective harm suffered as a child, where that that harm reached the threshold as set down in section 2 of the 2015 Act.

The Court also provided that s.14(1)(a) did not require the consent of the person disclosing this harm, prior to making the notification to the CFA. Instead, the mandated person had an obligation to ensure that the person was informed of the counsellor’s mandatory reporting obligations including the limitations on the counsellor’s duty of confidentiality.

Court of Appeal 

The Court of Appeal has now overturned that decision and has held that the High Court fell into error in failing to place sufficient emphasis on the statutory definition of “child”, and also in concluding that the use of the past tense in s.14(1)(a) indicated an intention to include those who had suffered harm in the past, but who had since passed into adulthood. The Court held:

1. There is no ambiguity about who is a “child” as the word is used in the phrase “a child … has been harmed”, as that phrase appears in s.14(1)(a) of the 2015 Act. It refers only to a person who, at the time that the mandated person receives or acquires or becomes aware of the information referred to in the section, is a child as defined in the 1991 Act and cannot in any circumstances include persons over the age of 18 years;
2. The Trial Judge fell into error in concluding that s.14(1)(a) of the 2015 Act requires mandated persons to notify the Agency where an adult discloses past harm suffered as a child where that harm falls within the definition of “harm” as set out in s.2 of the 2015 Act.
3. This interpretation of s.14(1)(a)… is consistent with the 2015 Act as a whole, does not give rise to any anomaly or absurdity and nor is it undermining of the legislative intention to protect children;
4. This interpretation does not obviate the obligation of mandated persons to report any reasonably held suspicions that a child is at risk of harm;

The Court specified the reporting requirements under the 2015 Act: (own numbering inserted)

1. For the avoidance doubt, a mandated person who, as a result of information received from an adult (in the course of the mandated person’s employment or profession) has formed a suspicion on reasonable grounds that a child is at risk of being harmed, must report that suspicion to the Agency
2. Where an adult who has been a victim of harm in childhood discloses to a mandated person the identity of the person alleged to have caused the harm, is not subject to a mandatory reporting obligation, as the legislation stands, in the absence of any current risk to a child. Where the adult providing such information consents to its being reported to the Agency, then the mandated person can and should do so.
3. The respondent correctly argued that the legislation does not differentiate as between categories of mandated persons.

Implications

The applicant sought the “entitlement of adult survivors of childhood abuse to be treated as adults, unless the court considers that this is clearly necessitated by the 2015 Act.

Concerns centred on the requirement to  report disclosures to the Agency, even if the client is now an adult, and where there is no current risk of harm to a child and the alleged perpetrator is not identifiable.

It was also reported that an adult client may be denied counselling if they did not consent in writing to a report of their account of child abuse being sent to the Agency.

The Court of Appeal decision refines a long-held view that section 14 (1)(a) applied to retrospective disclosures by adults in circumstances where the past tense language used in this provision implied that reports should be made to the Agency based on retrospective disclosures of abuse by adults.

This Court of Appeal clarifies the legislative definition of “child” in considering whether retrospective disclosures by adults fall within the remit of section 14. Moreover, it appears to offer some comfort to professionals tasked with weighing up difficult questions around disclosure in the face of a client’s reliance on the duty of confidentiality.  The question to be assessed in real terms is whether a child is at risk of being harmed. If that answer is in the affirmative, then a report must always be made. A service user should always be made aware of the limitations impinging on a counsellor’s duty of confidentiality, particularly where a child protection concern arises.

Full judgment here pdf (courts.ie)