Mr Justice Donald Binchy heled that the high court fell into error in concluding that mandated workers were required to report to Tusla any disclosures of historic child abuse under section 14 (1)(a) of the 2015 Children First Act.
A HSE policy requires its therapists and other mandated workers to report an adult’s disclosure of historic child abuse to Tusla. This policy was adopted following the HSE’s revised interpretation of its statutory obligations under the 2015 Act in December 2021. The director of counselling with HSE at John Street, Sligo, claimed the new operating procedures do not distinguish between current and retrospective harm. A report must be sent to Tusla, even if the client is now an adult, there is no current risk of harm to a child and the alleged perpetrator is not identifiable. He gave an example of an adult client being denied counselling if they did not consent in writing to a report of their account of child abuse being sent to Tusla.
Prior to the adoption of this policy, councillors were obliged to report current concerns where they had reasonable grounds to suspect harm or risk to any child currently under the age of 18. They also had to report allegations where the alleged perpetrator was identifiable. The Nationals Counselling Service raised concerns that vulnerable clients would no longer avail of counselling if they were told any disclosure of childhood abuse must be reported to Tusla even if they did not provide any information identifying the abuser. The Judge had concerns that this would increase the risk to children as fewer adults using the services would reduce the reporting of historic childhood abuses to Tusla, rather than increasing it. The service claimed its adults clients were more likely to engage with Tusla after engaging in a safe therapeutic relationship.
The high court had originally found that the plain meaning of the words at section 14 of the 2015 Act leads to an “unambiguous conclusion” that there is a reporting obligation on disclosures of childhood abuse by an adult. The Court of Appeal overturned this decision as Mr Justice Donald Binchy said there was “no ambiguity” about who a child was when used in the phrase “a child … had been harmed” in the Act, it refers only to a person who, at the time the mandated person becomes aware of the alleged harm, is a child and “cannot in any circumstances include persons over the age of 18 years”. Therefore there is no legal requirement to report to Tusla any disclosures of historic childhood abuse except in cases where there is any reasonable suspicions that a child is currently at risk of harm or if the alleged abuser is identifiable.
Ms Justice Aileen Donnelly and Ms Justice Una Ni Raifeartaigh agreed with this decision.
Click here for the full judgement in the case of Tom McGrath v Health Service Executive [2023] IECA 298 Judgments | The Courts Service of Ireland