Legal fears overshadow victims in new Tusla guidelines

Caution over legal challenges is the backdrop to Tusla’s new policy for investigating child abuse

Photograph: Alan Betson

Photograph: Alan Betson

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The fear of legal action being taken against Tusla, the child and family agency, runs through controversial new guidelines for how the agency will investigate allegations of child abuse.

The unpublished guidelines, seen by The Irish Times, pull back the curtain on how social workers deal with allegations of child abuse. The Child Abuse Substantiation Practice (Casp) was drawn up to better standardise policy, where previously there was criticism over a lack of consistency in how allegations were investigated.

The new policy continually references the rights of the person subject to an abuse allegation and how they must be afforded fair procedures.

However, there is little guidance as to how social workers should ensure the rights of the alleged victim are upheld through what can be a difficult process. The policy covers alleged abuse relating to current children and adults disclosing childhood abuse.

Concerns

The guidelines are to come into force in June, and were drawn up in part to “incorporate new legal judgments in this complex area of law and practice,” according to Tusla.

There lies the root of concerns organisations supporting survivors have with Casp, which some in the sector privately feel reads in parts as if it was written by the lawyer of an alleged perpetrator.

Tusla has been subject to several legal challenges from individuals investigated over abuse allegations in recent years. As a result the agency has internally become increasingly wary of court battles, a caution clearly on show throughout the guidelines for social workers.

The element of the policy likely to be most controversial covers how the alleged victim can potentially be questioned by their alleged abuser or their legal representative as a means of “stress testing” the claims.

One striking line from the guidelines states “it would generally be inappropriate for a child or vulnerable adult to be directly questioned” by the accused.

Tusla has taken significant flak over previous controversies, and risks further reputational damage if it is seen as prioritising the rights of the accused over the rights and wellbeing of the alleged victim – based on a fear one is more likely to take legal action.

A spokeswoman for Tusla said the Casp policy was written within the current statutory authority of the agency, and Tusla “has and continues to seek a stronger legislative framework” for its functions.

Safety

Throughout the guidelines Tusla does stress that the safety of the child should take priority where the social worker believes “there is or may be an immediate serious risk” of harm.

However, accurately assessing the level of risk to a child is a difficult task in a sphere where judgment calls are made in a grey area.

Under Children First legislation organisations that provide counselling to abuse survivors are mandated to report disclosures of abuse to Tusla, even if the individual does not want the agency to pursue the matter. The result is an adult disclosing childhood abuse as part of a healing process is pulled into a Tusla investigation they never intended to instigate.

The Casp policy states “no guarantee” can be given to the alleged victim that their name will be withheld from the alleged perpetrator, due to the need to afford the accused fair procedures.

“Even where there is a serious risk to them from the [alleged perpetrator] no guarantee can be given in respect of maintaining their anonymity,” it states.

Taken together, survivors’ organisations fear several elements of the new policy risk re-traumatising the most vulnerable person in the process, the alleged victim.