In 2017, the agency found “serious concerns” about her foster carer. After she started legal proceedings against Tusla, it re-investigated and declared her allegations “unfounded”.
Last month, a care leaver won her judicial review against Tusla, after the agency changed its position regarding her complaint of abuse by a former foster family.
Justice Micheál O’Higgins instructed the agency to provide the care leaver with reasons for its decision that her allegations were unfounded, according to the judgment.
In 2015, the care leaver told Tusla she experienced neglect and emotional abuse in the foster care placement, together with “some limited allegations of physical abuse”, according to the judgment.
Tusla investigated her complaint and, in 2017, wrote to her and said that it categorised the allegations as “serious concerns” and noted that the care leaver’s account was consistent and “other children raised similar concerns”, it says.
These investigations, Tusla said, according to the judgment, are not meant to “‘vindicate’ the complainant or substantiate her allegations”, but to assess whether the foster carer might pose a current risk to children still in their care.
In September 2018, the care leaver started legal proceedings against Tusla and the former foster carer for injuries and mental distress due to negligence. This could have resulted in a financial judgment against the agency.
At some point in 2019, Tusla told her “that the original investigation into her complaint was flawed”, and it had started a new investigation. Then in July 2023, Tusla wrote to the care leaver to say that – this time – it had found her complaint unfounded.
Tusla didn’t provide reasons to the judge for why it changed its position, nor did it tell the court why it launched a second investigation in 2019, he writes in his judgment.
In response to those same queries, sent by email Tuesday, a Tusla spokesperson didn’t give direct responses, saying they are confidential, but did say that Tusla will take the judgement into consideration.
“The Agency considers the outcome of any Judicial Review and any implications for policy and practice, as appropriate in on-going review,” she says.
Tusla is both the investigator and decision maker in child-abuse cases, including when the child is in the care of Tusla. And it also faces potential liability if the child was in its care, and its investigation of itself results in adverse findings.
Experts previously flagged issues with this set-up, and sought involvement from An Garda Síochána’s National Vetting Bureau in determining whether allegations are founded. But that doesn’t appear to be part of proposed new legislation in the area.
In response to queries about Tusla’s apparent conflict of interest when investigating allegations of abuse of children in its care, a spokesperson for the Department of Children, said:
“Dedicated teams manage the CASP [child abuse substantiation procedure] process, separate to those involved in the active management of the child protection cases.”
Firstly, Justice O’Higgins ruled that the complainant had legal standing to take the judicial review.
Joe Mooney, assistant professor of social work at UCD, says the judgement is important in that regard, because it previously wasn’t clear if a person disclosing abuse had a right to take a judicial review.
Mooney says the complainant should also have a right to appeal the decision without taking a judicial review, which they currently do not. “The person making the disclosure should have some recourse to an appeals process,” he says.
Justice O’Higgins noted that social workers have a tough job in deciding whether abuse allegations are founded or unfounded. But he said he needed more information about that decision-making process.
“I regard it as unsatisfactory that the affidavits are so uninformative and bare and provide virtually no context or explanation for the decision-making process followed by the Agency,” he says.
O’Higgins ruled that a public body has a duty to give reasons, and referred to a 2012 Supreme Court decision in which an applicant for naturalisation requested reasons for why his application was refused.
“The court held that the rule of law required that all decision makers act fairly and rationally, meaning that they must not make decisions without reasons,” says O’Higgins, in his judgment.
Tusla “had no objection to sharing with the applicant the reasons for its conclusions in 2017”, the judgment says.
However, after the care leaver started legal proceedings against Tusla, and the agency ran a new investigation and reached a different conclusion, its position on sharing its reasons changed.
The judgment does not mention the timing of the care leaver’s legal proceedings, but does note the change in Tusla’s position on sharing its reasons.
“The Agency was now insisting, in relation to the same underlying allegations, that it was not obliged to give reasons for its decision and secondly, was not obliged to provide the complainant with a copy of the report relating thereto,” the judgment says.
“In my view, the difference in the approach adopted by the Agency as between the two separate processes is stark and difficult to reconcile,” O’Higgins writes. “No attempt has been made in the opposition papers to reconcile or explain the contrasting positions.”
He added that the fact that Tusla ran a second investigation, which reached a different conclusion from the first one strengthened the applicant’s case for seeking reasons.
And also noted that, “Of course, I do not in any sense exclude the possibility that this may have occurred for good reason,” he says. “However, since no reasons have been advanced, it is very difficult to form an assessment on this issue.”
A spokesperson for Tusla didn’t directly answer queries including why it launched a second investigation in this case, pointing to confidentiality as the reason.
“When a child or family enters into a relationship with a public service such as Tusla, they are entitled to expect that information generated in that relationship is treated in confidence and remains private,” she says. “This is critically important in the subject matters [in] which Tusla is involved.”
O’Higgins instructed Tusla to provide the complainant with reasons for the decision.
“The mere fact that the Agency may choose in its published policies not to include an
express duty to give reasons to complainants does not oust or nullify the Agency’s public law obligations in a given situation,” he says.
Mooney, at UCD, says that while it is common for an investigation of this nature to take years, it is unusual for Tusla to launch a fresh investigation after its process has concluded.
When asked, the Tusla spokesperson said the agency doesn’t know on how many occasions since 2015 Tusla started a new investigation after it had already issued a decision.
“Tusla collates and publishes many data metrics, however, a specific breakdown in terms of the data requested is not currently part of our collated data or national metrics,” she says.
Tusla agreed in 2017 that there were serious concerns, says Mooney, so he is surprised that this was later revisited.
The judgement flags that there were other children affected, and that Tusla stopped using the foster carer, he says, so it is unusual that the agency later changed its position.
“What is unusual is that it is suggested that other children were affected and that it affected the use of this placement for the purposes of fostering,” he says.
Experts have said there’s a need to reform the process of Tusla investigating allegations of abuse by children in the care of people it placed them with.
“The current framework involves an inherent conflict of interest on the part of Tusla,” said the then Special Rapporteur on Child Protection, Conor O’Mahony, in his Annual Report 2020 submitted to the Oireachtas.
“In that it is charged with both investigating the complaint and making a decision on whether it is founded,” O’Mahony said.
An expert advisory group, established in the aftermath of the false allegations about Garda Sergeant Maurice McCabe, recommended that the government clarify the legislation around how such investigations should be carried out.
The expert group recommended that the Department of Children continue to explore the idea of an enhanced role for the National Vetting Bureau in deciding whether complaints are founded.
“This would obviate the need for Tusla social workers to conduct quasi-legal investigations and reduce the risk of secondary traumatisation for complainants, while still providing the necessary protections for the constitutional rights of a person accused of abuse,” says O’Mahony in the report.
At the moment, social workers are expected to stress test the allegations while also trying to offer empathy to the person disclosing allegations of abuse, he says.
Mooney, at UCD, says that the government needs to reform Section 3 of the Childcare Act 1991, because it is too vague. “The legislation needs to be clear, it needs to be articulate,” he says.
The process should be trauma-informed and take into account the needs of the person making the disclosure, he says. “An unfounded allegation means I don’t believe you, to a person disclosing, an unfounded allegation means that you haven’t been heard,” he says.
The Tusla spokesperson said the point of the process is to protect children “who may be at risk today or in the future”. As for past crimes, if social workers believe a crime has been committed, they report this to An Garda Síochana, she says.
The spokesperson for the Department of Children said it intends to publish the Child Care (Amendment) Bill 2025 in the coming months. But it seems that will not resolve these issues, but rather solidify the current process.
“The General Scheme proposes to require the Agency (Tusla) to determine what procedures are appropriate with regard to the assessment and management of allegations of harm, and to issue guidelines in that regard,” the department spokesperson said.
“It is intended, therefore, that the effect of these provisions will be to place current practice … on a statutory footing,” the spokesperson said.
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