Parental Equality

Click HERE for the Barr Judgement which was relied on in this case. It is quite possible that this case would never have happened if the HSE had to follow the Barr judgement in the first instance!

Sample Extracts:-

"Needless to say the statutory authority must in its investigation observe the norms of natural justice and fair procedures."

"As the complainant is now twenty two years old, I am satisfied that there is no good reason why he should not be made available for cross-examination in respect of the complaint that has been attributed to him. In addition, the applicant is entitled to have made available to him all of the material assembled by the second named respondent in its investigation into the allegations made against him that is relevant to those allegations. He is also entitled to be heard in his own defence and to have the testimony of such persons who can give testimony on his behalf, relevant to the allegations in issue, heard and considered by the second named respondent. In my judgement, having regard to the very serious and criminal nature of the allegations made against the applicant, the foregoing provisions are the minimum necessary to vindicate the applicant’s right to fair procedures if this investigation is to continue. "

"As said earlier, the investigation carried out by the second named respondent previously, was, I am satisfied, utterly wanting in the norms of natural justice. "

"A gross delay of almost two years of near total inactivity then arose. Following that the SWAHB reactivated the investigation and persisted in and compounded its previous errors. Having replied to the applicant on the 26th March, 2006, disclosing the identity of the complainant, instead of giving him an opportunity to be heard, they simultaneously move ahead without affording the applicant any opportunity to be heard and in a social work report dated the 27th March, 2006, concluded, treating the allegations made as well founded, that the applicant posed a serious risk to children. This report was sent to the school. The conduct of the second named respondent in this regard was an extraordinary disregard of the applicant’s right to natural justice and fair procedures."

"5.8 Moving on to the demand made by the applicant in his letter of the 21st July, 2003, in respect of nine matters, this request, in general, was a reasonable one, though perhaps some of the items of information requested may have been unnecessary and excessive. However, as someone who was the subject of a previous investigation by the Eastern Health Board, which was found to be unsubstantiated, he was entitled to be cautious."

"The evidence in this case discloses a litany of failures on the part of the second named respondent to adhere to the requirements of fair procedures in its conduct of its investigation into the allegations made against the applicant. Those failures commenced with the first bare demand made of the applicant, that is, that he attend at a meeting to discuss the allegations. The second named respondent refused to give any details or documentation to the applicant in advance of that meeting. I am satisfied that the insistence on the applicant’s attending the proposed meetings without knowing any details of the allegations made or sight of relevant documents placed him in grave jeopardy. I am in no doubt that the procedure proposed for that first meeting with the applicant which the second named respondent wholly disregarded the extraordinary jeopardy in which the applicant was being placed and his constitutional right to fair procedures."

5.16 As said earlier, the investigation carried out by the second named respondent previously, was, I am satisfied, utterly wanting in the norms of natural justice. If a new investigation was to commence in light of the prospect or possibility of the applicant’s return to teaching, then, in my view, at this stage, the investigation could not progress in any meaningful way respecting the norms of natural justice, without affording the applicant an opportunity to confront his accuser R.K. in cross-examination. As the complainant is now twenty two years old, I am satisfied that there is no good reason why he should not be made available for cross-examination in respect of the complaint that has been attributed to him. In addition, the applicant is entitled to have made available to him all of the material assembled by the second named respondent in its investigation into the allegations made against him that is relevant to those allegations. He is also entitled to be heard in his own defence and to have the testimony of such persons who can give testimony on his behalf, relevant to the allegations in issue, heard and considered by the second named respondent. In my judgement, having regard to the very serious and criminal nature of the allegations made against the applicant, the foregoing provisions are the minimum necessary to vindicate the applicant’s right to fair procedures if this investigation is to continue.

5.18 It is only through the institution of the instant proceedings has the applicant had revealed to him all of the written material that forms the basis of the complaint made against him. Because that material was revealed the through the process of disclosure in these proceedings it could be said not to have been available to him in an unfettered way. In any future investigation all material on which the complaint is based would have to be released to him unequivocally for the purposes of the investigation.


parentalequality.ie	09/09/2010

High Court Judgment re HSE allegations of Sexual Abuse