Reporting cases of historical child abuse

Mr Stephen O’Leary provides advice on when a doctor must notify Tulsa in cases of historical child abuse

The Children First Act 2015 (‘the Act’) created a new framework for reporting concerns to Tusla, the Child and Family Agency. The Act is, for the most part, very clear in the obligations that it imposes. Section 14(1) of the Act states:

“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.”

It is apparent from this section that a mandated person has strict obligations to report concerns that a child has been harmed, is being harmed, or is at risk of being harmed. While there was no doubt that the Act applied to persons under the age of 18, ambiguity arose as to whether harm reported by an adult that occurred to them when they were a child came within the definition of the Act. This ambiguity caused difficulty for mandated persons when working with patients who reported such abuse. Welcome clarification on this issue has recently been provided by the Court of Appeal where it was held that reports of historical abuse suffered by an adult do not have to be reported to Tusla automatically unless there is a continuing risk of harm to a child.

Background

In November 2019, the HSE Child Protection and Welfare Policy was published. Section 8.2 of the policy document addressed retrospective reports of abuse. It stated:

“Some adults may disclose abuse that took place during their childhood. Such disclosures may come to light when an adult is attending counselling, receiving palliative care, or is being treated for psychiatric or other health issues. Service users should be informed at the outset of contact with a service, as appropriate, that if any child protection issues arise, including disclosures of retrospective abuse, that this information must be passed on to Tusla where there are reasonable grounds for concern that abuse occurred, as there may by a current or potential risk to children (identifiable or not).”

Subsequent to this, the National Counselling Service (NCS), being a part of the HSE, published a proposal for the implementation of this HSE policy. The NCS highlighted that this obligation to report retrospective abuse may result in less people availing of their services, or that current vulnerable clients might cease using their service as they would not consent to any report being made to Tusla. The National Counselling Service developed guidelines for its staff on when a mandated report of historical abuse was required. However, the HSE did not agree with the NCS’s guidance. The HSE intervened and made clear that given their interpretation of section 14 of the Act even reports of historical abuse in which the abuser was not identified, or where there was no current risk to a child, would still have to be reported to Tusla. Ultimately, the director of counselling in the NCS issued judicial review proceedings against the HSE seeking to quash their policy on reporting historical abuse.

The High Court

In the High Court, the judge identified two possible interpretations arising from a literal reading of section 14(1)(a) of the Act. These were:

That a report is required where past harm has occurred to a person as a child irrespective of their current age; or

That a report is only required in instances where past harm has occurred to a person who is currently a child.

The Court considered the literal interpretation of section 14(1) as well as reviewing the balance of that section of that Act and indeed the context of section 14 within the whole Act. The Court also had regard to the wider legislative context in which the Act was introduced.

Ultimately, the High Court concluded that all reports of historical abuse must be reported to Tusla pursuant to section 14, even where the abuser had not been identified or where there was no known risk of further abuse occurring. The Court held that this was in keeping with Tusla’s statutory obligations to investigate complaints of historical child abuse. Information provided to Tusla, which in isolation may not seem to be of particular concern, may take on a different complexion when compiled by Tusla with other information that it held on file.

It is now clear that where an adult patient reports historical abuse to a doctor, the doctor is not obliged to report it to Tusla unless there is a current risk of harm to a child

The Court of Appeal

The NCS appealed the decision of the High Court that reports of historical abuse must be reported to Tusla in all circumstances. The Court of Appeal acknowledged that there were two interpretations of section 14(1) of the Act as set out by the High Court judge. However, the Court of Appeal approached the case in a different manner. For the Court of Appeal, the key question was:

“Does the phrase ‘a child… has been harmed’ as it is used in section 14(1)(a) of the Children First Act 2015 include a person who was harmed as a child, but who is no longer a child as defined by section 2 of the said Act at the time of the making of the relevant disclosure to the mandated person?”

The Court of Appeal carried out an extensive review of the authorities on statutory interpretation, including the Supreme Court decision in Heather Hill Management Company v An Bord Pleanála which was delivered in 2022 and subsequent to the High Court’s ruling in this matter.

The Court of Appeal held that:

“The word ‘child’ cannot be interpreted so as to include an adult who suffered harm as a child. Therefore, 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.” (original emphasis)

In reaching this decision, the Court not only had regard to the definition of a child within the Act, but also had regard to the definition of a child in the Child Care Act 1991. The Court stated that if the Oireachtas wanted to ensure that all reports of historical abuse were reported to Tusla this would be expressly provided for in the Act given the far-reaching consequences of such a requirement.

The Court of Appeal concluded that:

“It is important, for the avoidance of any doubt, to emphasise that, notwithstanding the interpretation of section 14(1)(a) which I have favoured above, 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 Tusla.”

However, the Court of Appeal went on to confirm that:

“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. Needless to say, however, where the adult providing such information consents to its being reported to Tusla, then the mandated person can and should do so.”

Conclusion

The judgment provides welcome and necessary clarity to doctors and other mandated persons in terms of their mandatory reporting obligations under the Act. The mandatory requirement to report harm, or potential harm to a child, creates a clear framework to which mandated people must adhere and functions best when there is no ambiguity.

It is now clear that where an adult patient reports historical abuse to a doctor, the doctor is not obliged to report it to Tusla unless there is a current risk of harm to a child.

While a patient should still be advised of a doctor’s reporting obligations as a mandated person, the decision in this case should ensure that those who suffered abuse in the past can seek the appropriate help today knowing that their report of historical abuse will only be reported to Tusla where (a) there is a current risk to a child or (b) the patient consents to any such report being made.

If you are unsure as to your obligations about making a mandated report to Tusla under Children First then you should contact your indemnifier or Tusla for further advice.