“The Child Abuse Substantiation Procedure (CASP) is a revision of the 2014 Policy “Policy and Procedures for Responding to Allegations of Abuse and Neglect”. It is based on learning that indicated the need to further enhance consistency of practice across the Agency. In addition, changes were also required to incorporate new legal judgements in this complex area of law and practice.
Tusla’s principal focus continues to be the care and welfare of vulnerable children and families, many of whom are encountered in different contexts such as neglect, abuse, domestic violence and the wider remit of Tusla services. Safety planning for children today remains at the centre of our primary duty and this often requires the appropriate sharing of relevant information to safeguard children.
In recent years we have seen a significant increase in the focus on retrospective cases with many adults making disclosures in respect of their childhood. In both retrospective and indeed aspects of current alleged abuse Tusla is limited in its investigative authority and powers. An independent Expert Assurance Group appointed by the Minister which made its final report in the past week was clear in its view of the challenges for Tusla;
Regarding particularly retrospective cases the Expert Group notes:
“Tusla acts on balance of probabilities and the main action it can take regarding a person of concern once a conclusion of ‘founded’ has been reached is to share information. It must be recalled Tusla is not a policing body and does not have significant powers. For example it cannot compel a witness to attend for interview or seize evidence. It must rely on good information and co-operation of both the complainant and the person who is the subject of the allegations in its role…………………………The EAG would note that irrespective of the approach…challenges to the investigatory aspects of Tusla’s role will persist. For example, Tusla remains obliged to apply fair procedures and will still lack powers such as those mentioned above”
In relation to interviews being held as part of this procedure:
- There is a legal requirement to afford any accused person of their right to natural justice and fair procedures and to undertake stress testing.
- “stress testing” takes place at the beginning of this process to ensure due process and fair procedures from the outset. To balance this with the rights of the person who has made a disclosure we are fundamentally aiming to ensure the robustness of the interview process so as to negate the need on their part for further questioning and further hurt or trauma associated with further interviews.
- It is important to note that the Guide makes no requirement that a complainant would be cross examined. The Guide takes account of the fact that under due process the person who an allegation is made against may request to question or cross examine a victim. Tusla fully recognises the right of the person making a disclosure to refuse this request and we would never undermine a person’s right in this context. The guide outlines different ways in which Tusla might explore the request for cross examination considering the least harmful approach for the person who made a disclosure. Tusla cannot and would never compel a person to participate in a process that they would deem harmful to themselves.
In applying the new Child Abuse Substantiation Procedure Tusla is attempting to meet all of its responsibilities and duties having regard to a complex legal backdrop. We are absolutely mindful of the trauma and emotional distress experienced by survivors of retrospective abuse.
We are committed to ensuring that any approach we take in all aspects of our work is open to review and change and CASP will be no different. Regardless we want to assure all people who present with a need associated with abuse current or historic that we will along with partner agencies mobilise all the support possible to them to deal with the challenges they experience. We will continue to act with both fairness and compassion to the people we serve.