Lost in the woods
A recent Court of Appeal decision provides much-needed comfort to professionals working in the area of historic disclosures, particularly medical and psychological services, argues Clare Daly
A recent Court of Appeal decision (McGrath v HSE) has provided some much-needed comfort to professionals working in areas at the coalface of historic disclosures, particularly medical and psychological services.
The decision provides clarification regarding mandatory reporting obligations arising from disclosures of historic harm and, in doing so, sets out guidance for those clinicians trying to navigate their mandatory reporting obligations in the face of reticent patients.
The Children First Act 2015 provides for certain mandated professionals to report onwards concerns of harm to a child to the Child and Family Agency (CFA).
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 interpretation of section 14, in the context of reporting retrospective disclosures of harm in childhood, made by an adult, has resulted in disparate interpretations and applications of this section.
This resulted in a High Court case, McGrath v HSE. The court findings were appealed to the Court of Appeal, which has now issued judgment.
Charlotte’s web
The appellant (a director of a counselling service) and the respondent (the HSE) were in disagreement as to the scope of section 14(1)(a) of the 2015 act.
The appellant contended that the word ‘child’, as used within that section, 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 section 1(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 section 14(1)(a) came to a head following the publication by the respondent, on 14 November 2019, of a document entitled HSE Child Protection and Welfare Policy.
Following issues arising from same, a further clarifying document – an interim standard operating procedure – was circulated by the respondent in 2021.
The applicant sought leave to issue judicial-review proceedings seeking an order of certiorari quashing both the policy and the 2021 interim operating procedure.
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 harm reached the threshold as set down in section 2 of the 2015 act.
The court also provided that section 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.
Little Jack Horner
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 section 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 that there is no ambiguity about who is a ‘child’: 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.
It was further held that the trial judge “fell into error” in concluding that section 14(1)(a) requires mandated persons to notify the CFA where an adult discloses past harm suffered as a child, where that harm falls within the definition of ‘harm’, as set out in section 2 of the 2015 act.
The court said that this interpretation of section 14(1)(a) “is consistent with the 2015 act as a whole, [and] does not give rise to any anomaly or absurdity and nor is it undermining of the legislative intention to protect children”.
Moreover, this interpretation does not obviate the obligation of mandated persons to report any reasonably held suspicions that a child is at risk of harm.
Submissions to the Court of Appeal raised interesting points of law on both sides. The appellant argued that the definition of ‘child’ in the 2015 act means a person under the age of 18 years “other than a person who is or has been married”.
The exclusion of a person who is married reflects the fact that, at the time of the enactment of the 2015 act, it was possible for persons under the age of 18 years to marry, and could result in significant anomalies.
The respondent’s submissions included an interesting comparison as regards the defences available under the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012, where no such defences are available under the 2015 act.
However, the Court of Appeal said the 2015 act does not make it an offence for a mandated person not to comply with the reporting obligations in that act.
Secondly, the obligation in the 2012 act is not framed around the moment in time when a person receives information, but rather is engaged by the knowledge that an offence has been committed against a child in the past, and it is clear that this refers to any time in the past.
Hansel and Gretel
The Court of Appeal decision underscores four crucial factors that a professional can rely on when making a risk-based analysis in light of disclosures of historic abuse:
- The phrase “a child has been harmed” can only apply to a person who is a child at the time that the mandated person receives or acquires or becomes aware of the information referred to in the section. To find otherwise would deprive the word ‘child’ of its ordinary meaning.
- To require mandatory reporting of historic harm that has been disclosed by an adult who was a victim of childhood harm or abuse to a mandated person would represent a “significant change in the law”.
- Notwithstanding the interpretation of section 14(1)(a), which the court favoured, 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.
- 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, the mandated person 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.
Little Red Riding Hood
This clarification from the Court of Appeal is a welcome one. A key concern arising from the original interpretation of the act was the view that fewer adults would avail of counselling services and this, in turn, would inevitably reduce the extent of existing reporting of historic childhood abuse to the CFA rather than increase it.
Moreover, it is clear that the active participation of the person making the disclosure is a vital component of mandatory reporting, as regards any decision to share this information with the CFA.
The High Court had emphasised the importance of informed consent in counselling services in circumstances where counsellors are subject to mandatory counselling requirements.
A 2021 study by Dr Joseph Mooney from the School of Social Policy in UCD, entitled Barriers or Pathways, found that 77% of the people he surveyed stated that they were not advised that their personal data, and specifically details of their disclosure, would be shared; and a similar percentage were not told with whom their information would be shared.
In the course of this study, Dr Mooney opined: “We need to avoid what appears to be a slow drift towards treating adults who come forward to make retrospective disclosures of childhood abuse as mere suppliers of information.”
This Court of Appeal decision provides valuable clarification regarding the legislative definition of ‘child’ when assessing whether retrospective disclosures of abuse, coming from adults, fall within the remit of section 14.
Moreover, the decision appears to provide increased reassurance to clinicians when faced with 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.
Clare Daly is a solicitor practising in the area of data protection and child-protection law.
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Clare Daly
Clare Daly is a solicitor in Comyn Kelleher Tobin Solicitors, practising in the areas of child law, litigation and data protection.