The controversy surrounding the treatment of Sgt. Maurice McCabe by various State agencies has raised significant issues regarding the operation of our child protection system in Ireland. Issues that perhaps have needed attention for some time and that will now hopefully receive due attention. Before we try to disentangle the fallout from this controversy, let’s briefly remind ourselves of how the McCabe case unfolded.
It was revealed the child sexual abuse allegations made against Sgt. McCabe, referred to TUSLA (Irish State Child and Family Agency) in August 2013 by a counselor employed by the Health Service Exectuive’s (HSE) National Counselling Service (NCS), were false. The HSE is Ireland’s national health service provider.
The following year in 2014, a TUSLA social worker opened files on all four of the McCabe children which also included their then adult children. It has yet to be determined why files were opened on adult children as this is not standard procedure within TUSLA practice or child protection practices. Additionally, it is also yet to be determined what was the reason for the time delay from the initial referral?
It also emerged that the referral to TUSLA originated from the same individual connected with previous 2006 allegation of “inappropriate sexual behavior” against Sgt. McCabe. However, after an investigation by the Office of the DPP (Director of Public Prosecutions), the investigation determined there were no grounds to proceed with prosecution against Sgt. McCabe.
Nine months after the NCS referral to TUSLA, the NCS contacted TUSLA to advise them that the referral had included an error. They stated:
“the line ‘that this abuse involved digital penetration, both vaginal and anal’ is an error and should not be in the referral. It is in fact a line from another referral on another adult that has been pasted in error”
An error that will surely gain significant attention under the Charleton inquiry which is investigating the alleged smear campaign against McCabe who was a whistleblower.
In 2016, approximately two years and four months after receiving the initial referral, a TUSLA social worker contacted Sgt. Maurice McCabe to advise that he was the subject of an allegation of child sexual abuse. Sgt. McCabe’s issued a statement through his attorney refuting the allegations and referred to the previous decision not to prosecute him. This was the first contact TUSLA made with Sgt. McCabe regarding the referrals they had received relating to him. The following June 2016, Social Workers informed Sgt. McCabe that there had been an error and that no such allegation was made against him. Again, another error that will surely receive significant attention.
The following June, in 2016, Social Workers informed Sgt. McCabe there had been an error and that no such allegation was made against him. Again, an error that will receive significant attention in McCabe’s defamation investigation.
So what’s the child protection context of all this?
In the ordinary course of things, the allegation of sexual abuse or inappropriate behaviour in childhood made to the NCS by the then adult individual constitutes what TUSLA terms a ‘Retrospective Disclosure’. This is a disclosure by an adult of abuse they experienced as a child. These types of referrals make up approximately 10% of TUSLA’s child protection caseload and have been the source of some controversy in recent years.
The independent Health and Quality Authority (HIQA) is tasked with assessing the efficacy and function of Tusla child protection and welfare services nationally. They carry out both announced and unannounced inspections of child protection and welfare services and in recent years have begun to pay attention to Tusla’s management and assessment of retrospective disclosures.
In recent reports, HIQA has deemed Tusla’s handling of such referrals as inadequate and posing potential risk to children. They have reported in respect of some services:
“…a large number of retrospective abuse referrals had not yet been assessed which meant that the potential risk to children was not fully known”; “inspectors found there were significant delays in the service assessing risks in relation to retrospective abuse and there were immediate and high risks that were not dealt with in a timely manner”.
An adult disclosure of abuse may relate to an incident that occurred decades ago. For example, a sixty year old man coming forward to disclose abuse he suffered when he was eight or nine. It may also, however, relate to abuse disclosed by a 19 year old in which the incident occurred when they were 17.
These disclosures, therefore like all referrals to child protection services, may or may not contain details of an alleged abuser, details of an identified child or children at risk or specific locations or dates of where and when the abuse took place. It may be argued that some of the more ‘historic’ of these referrals may contain no identifying information at all with no way for social workers to ascertain the level of risk to children. But what is crucial here is the above HIQA report which states, “referrals had not yet been assessed which meant that the potential risk to children was not fully known”.
As recently as February 2016, two months after their initial contact with Sgt. McCabe, TUSLA Child Protection services in Cavan were assessed by a team of HIQA investigators. The inspection was announced in other words the social work department knew the inspection would be taking place. HIQA reported, “there were waiting lists for assessments and for retrospective allegations of abuse and the system in place to manage the assessment wait lists was not robust”.
HIQA stated at this time that TUSLA team leaders kept a list of all adult referrals and that these cases had been audited and categorised with on-going liaison with the Irish State Police Service (Gardaí). This would appear to be good practice in the face of the growing number of referrals to TUSLA, albeit the cases are remaining on a waitlist for full assessment were required.
Despite this, reports concerning the handling of the allegations against Sgt. McCabe highlight a two-and-a-half-year delay in Social Work action on the matter. HIQA are not the only ones who have highlighted concern in respect of Tusla’s handling of retrospective cases.
As early as May 2015, then Senator, Jillian van Turnhout raised the matter with, then CEO of Tusla, Gordon Jeyes following the Laois/Offaly controversy; and as recently as July 2016 Fíanna Fáil frontbench spokesperson for Children, Anne Rabbitte TD, raised the matter in the Dáil (Irish Parliament) with Minister Zappone herself.
During this latter exchange, Minister Zappone acknowledged the failings in Tusla’s assessment of retrospective disclosures. She went on to acknowledge that frontline social workers are in a position where they are working from a draft guidance document and advised that she would seek clarification on the entire matter from Tusla, stating “I have asked to meet senior officials in Tusla next week to be updated on the steps they are taking to deal nationally with these cases, and on cases currently before the courts which may impact on Tusla’s practice in these matters”.
The Minister went onto state “I want Deputy Rabbitte to know that I do have concerns in relation to dealing with adult disclosure cases or retrospective cases. I would like to see timelines on when they have been allocated”. It would appear that the outcome of Minister Zappone’s meeting with Tusla following this exchange is relevant in respect of what is unfolding currently.
The bottom line is that retrospective disclosure of childhood abuses are not being prioritised or resourced. HIQA have noted long waiting lists in respect of these referrals to TUSLA and despite draft guidelines and a number of specific Tusla teams being set up to assess these cases the problems remain. What is occurring is a system failure within Tusla or maybe a failure due to a lack of a system being in place in the first place.
Frontline practitioners are not receiving adequate training and clarification in respect of how to handle retrospective allegations of abuse.
Competing Rights and Confusion
One of the key issues in this allegation or referral of abuse, which occurred in childhood, casts two sets of competing legal rights into play. The adult referrer’s right to justice and to have his/her referral investigated and the right of the alleged abuser to privacy, good name, and the presumption of innocence.
It is these competing rights which have caused the most confusion within the child protection system which is also the central cause of what can only be termed ‘paralysis’ in relation to the investigation of adult disclosures of childhood abuse. If an alleged abuser or victim refuses to engage with social work, does the duty to protect children cease? Justice Barr was quite clear that social workers have a duty to assess any potential future harm to identified or unidentified children. And to do this “before the risk crystallises into actual harm” as Justice Hedigan added in a later case.
It would appear that Tusla’s fear of suit in these matters, or maybe just sheer confusion, has led to these referrals being moved down the caseload list and in some cases not receiving an assessment at all. This can have detrimental effects on alleged perpetrators who, if falsely accused, want to clear their name. It also has effects upon victims who have taken a monumental step in disclosing the abuse they have suffered. Finally, it also affects the social workers who are tasked with assessing these cases. Competing rights to justice and good name hanging in the balance while these matters sit in social work offices.
The McCabe case deals with a false allegation against an individual. However, the central fear is the non-assessment of a referral for a child potential being abused by an individual who has been identified yet has failed to be assessed in a timely manner.
There are no winners in the McCabe case. While the political fallout is yet to be determined, we must remember, in this specific case, a man and his family have been put through hell at the hands of our most trusted of State institutions. Meanwhile, the reputation of confidentiality and professionalism of our child protection services and of our State-run counselling service hangs in tatters.
It is critical that steps are taken to rectify these issues, to support and guide front-line staff and ultimately to provide an efficient and sensitive service to those wishing to disclose abuse, those who may be falsely accused and all and any children who may be at actual or potential risk in our communities.