Barr Principles show McCabe’s right to be told of accusations

There is a Constitutional obligation on the child protection services to inform people, such as Sgt Maurice McCabe, that a child abuse allegation has been made against them in order to allow them respond, the High Court made clear some years ago.

The ruling, by the late Mr Justice Barr, established the so-called Barr Principles which are, or should be, known to every professional in the childcare field, according to those with knowledge of the area. The ruling sets out the obligations and duties of the childcare service both towards the protection of children but also those against whom allegations have been made.

The rights of people charged with wrong-doing to be informed of what is being alleged, and to be given a reasonable opportunity to offer a defence, are “cardinal rules” of Constitutional justice, the 1997 ruling noted.

False claims

The court said that given the capacity of false claims of child abuse to do “great injustice and harm”, to put families and children at risk and destroy relationships, the services have a duty to take all reasonable steps to interview the person against whom the complaint has been made, to furnish the person with notice of the allegation before being interviewed, and to give the person a reasonable opportunity to make his defence and then to carry out such investigations as might appear appropriate in the light of his response to the complaint.

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In the McCabe case it is understood that a complaint of serious child abuse was made against the serving Garda in August 2013, but McCabe was not contacted about the matter until December 2015, when he denied the allegation.

Bizarrely, in the period between the complaint being recorded, and the contact being made, the counsellor who had notified the child protection agency, Tusla, of the complaint, had informed Tusla that it had been a mistake. Tusla has now apologised to McCabe and his family.

The Barr judgment came in a case (MQ vs the VEC and others) involving a man doing a social studies course about whom the child protection services had concerns. The principles set out in the judgment have been widely recognised as setting out the rules for such matters since.

In the judgment, Mr Justice Barr said the child protection services had to take all reasonable steps to investigate the veracity of the complaint, including the steps in relation to vindicating the rights of the person accused, and it was only when it had formed “a considered opinion that the complaint may be well-founded”, that the obligation arose to take appropriate action, which might involve contracting third parties or the Garda.

Fair procedures

In the case, the third party was the VEC, and the judge considered what duties the VEC had if told that an alleged abuser might not be suitable for a particular course of education which leads to employment as a childcare worker. He said that, once informed, the VEC had a duty of fair procedures towards the alleged abuser, which Mr Justice Barr also outlined in the well-known judgment. One duty was to inform the alleged abuser.

In the case of McCabe, it appears his employers, the Garda Síochána, knew of the allegation, but did not contact the sergeant.