Requirement to Report Historic Sexual Abuse of a Child

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Requirement to Report Historic Sexual Abuse of a Child

Published 30 marzo 2023

McGrath v The Health Serve Executive [2022] IEHC 541
The High Court considered, as part of a judicial review, the proper interpretation of the mandatory recording obligation created under Section 14 (1)(a) of the Children First Act 2015 (“the 2015 Act”).

An interpretation of that provision had informed the Health Service Executive (“HSE”) Child Protection and Welfare policy 2019 (“the 2019 policy”) and its implementation in respect of the circumstances in which a mandatory report of historic sexual abuse
must be made to Tusla, the body with responsibility for investigating such issues. The 2019 policy proceeded on the basis that a report to Tusla was mandated where there were reasonable grounds, in prescribed circumstances, to suspect that a child had been harmed whether or not that child was now an adult.

The Court held that the question of statutory interpretation which arose was whether, properly construed, Section 14 (1)(a) of the 2015 Act required a report only where the child concerned was still a child.

The Court concluded that Section 14 (1) imposed a reporting obligation in the following circumstances:

  • Information that had been received or required by a mandated person; and,
  • Based on that information, a mandated person had reasonable grounds to suspect that a child had been harmed, was being harmed or was at risk of being harmed.

The Court held that the 2015 Act did not create a distinction between professionals such as counsellors engaged by any service and other persons in relation to the obligation to comply with Section 14 of the Act. Further, no exemption from the obligation to make a mandatory report was given by the 2015 Act to counsellors where the making of such a report may, in the opinion of the counsellor, caused harm to the service user.

The Court held that Section 14 (1)(a) of the 2015 Act properly construed required that mandated persons notify Tusla where an adult disclosed past harm suffered as a child, where that harm fell within the definition of harm set out in Section 2 of the 2015 Act. The Court said that, to be clear, Section 14 (1)(a) did not require the consent of the person who had been harmed before the report must be made to Tusla. However, the Court noted that this did not obviate the necessity to ensure informed consent to treatment on the basis that a counsellor was subject to mandatory reporting requirements. The Court held that the obligation was on the counsellor to properly inform the individual of how confidentiality and counselling was managed and the limitations on confidentiality, including the mandatory reporting obligations imposed under the 2015 Act. Further, Section 14 (1)(a) did not require that the mandated person know the identity of the alleged perpetrator (or that they be identifiable) before a report must be made to Tusla.

The Court stated that, once the mandated report had been made to Tusla, it was thereafter for Tusla to determine what investigation or further steps ought to be taken in relation to the report (pursuant to Section 16, sub-section 1 of the 2015 Act).


Aisling Crowley

Aisling Crowley


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