Ireland: High Court Determines That A Child Protection Referral Is Protected By Qualified Privilege

Last Updated: 29 March 2018
Article by Clare Daly

RP & Another –v- BK [2018] IEHC 139

The High Court has held that a Landlord who made a child protection referral to Tusla and the HSE arising from child  protection concerns she had about her tenants, did so in good faith and could successfully rely on the defence of qualified privilege in defamation proceedings issued by the parents of the child.  This was despite the fact the landlord had been in a dispute with the tenants.

The High Court ruled that the Landlord could rely on the defence of qualified privilege and also the statutory protection under the Protections for Persons Reporting Child Abuse Act 1998.

BACKGROUND

The Plaintiffs had leased a residential property from the Defendant. At the termination of the tenancy the Defendant had refused to relinquish the deposit to the Plaintiff in circumstances where there was damage to the property. An inspection of the property revealed a vent which had been installed in the airing cupboard of the property without the knowledge or the consent of the landlord. The Landlord was concerned that the airing cupboard had been used for the detention of the tenants' autistic child for disciplinary purposes. Further, damage to the property, also caused the landlord to believe that the tenants had been aggressive. The Landlord reported the concerns to Tusla. Notably, the Landlord's evidence indicated that she had in fact worked with disabled children for some time in the preceding years and had been involved in a previous notification that was substantiated.    

The Plaintiff tenants claimed the referral was motivated by malice on the part of the Defendant, as the parties were engaged in proceedings before the PRTB, proceedings which had been initiated by the Plaintiffs, who were seeking the return of their deposit. Following the PRTB hearing, a portion of the deposit was to be returned to the Plaintiffs. The Tusla/ HSE referral investigations appeared to coincide with the dates immediately post the PRTB hearing however the Defendant Landlord gave evidence to the effect that she had contacted the HSE some week prior to the hearing.  The Landlord Defendant also said that she had sought the guidance of her cousin, a designated officer in a regional college, a number of weeks prior to making the referral to Tusla and a number of weeks prior she had also sought the informal advice of a solicitor during a social occasion.

In the course of deliberations, Mr Justice Barr was of the view that the Court had no hesitation in finding that the statements made by the defendant to Tusla on a specific date, were defamatory statements within the meaning of the 2009 Act.

The key issue in this case is whether the defendant's communication with the social worker was made on an occasion of qualified privilege as set out in section 18 of the Defamation Act 2009.

  1. It was accepted that the social worker was a designated officer and accordingly, it was appropriate to communicate any concerns that one may have about the safety or welfare of minors to that person.
  2. It was submitted by the Plaintiff that the defence of qualified privilege was lost due to the fact that the Defendant made these statements, either knowing them to be untrue, or reckless as to whether they were true or untrue and did so out of malice, due to the fact that she was embroiled in a dispute with the plaintiffs. Section 19 of the Defamation Act provides that the defence of qualified privilege can be lost if "... the plaintiff proves that the defendant acted with malice." Proof of malice defeats a defence of qualified privilege.
  3. Interestingly, the Court quoted McMahon and Binchy in determining that the incidental presence of an improper motive will not always be fatal; provided the author was primarily and honestly interested in protecting the recognised interest, the incidental presence of disgust, indignation or annoyance will not destroy the privilege.
  4. The Court was satisfied that the Defendant Landlord was acting honestly and in good faith when she made her concerns known to Tusla and she was therefore entitled to rely on the defence of qualified privilege in respect of her statements on that occasion.
  5. Notably, the Court also found that the Defendant is also entitled to rely on the provisions of s. 3 of the Protections for Persons Reporting Child Abuse Act 1998. She would only lose the protection afforded by s. 3 thereof, if it were proven that she had not acted reasonably and in good faith.

NOTES

Notwithstanding the disagreement that took place in or about the same time as the child protection referral was made, the Landlord was held to have acted in good faith. The evidence indicated that the Landlord had been in contact with the relevant services for some time prior to the date of the PRTB hearing.

Section 3 of the 1998Act provides at the relevant section (emphasis added) that:

A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to an appropriate person of his or her opinion that-

  1. a child has been or is being assaulted, ill-treated, neglected or sexually abused, or
  2. a child's health, development or welfare has been or is being avoidably impaired or neglected, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person."

The legislation is drafted with the emphasis based in favour of reporting, in order to protect the reporter and, in doing so, encourage reporting of child protection concerns. In fact, the suite of child protection legislation is focused entirely on promoting reporting and the sharing of information where a child protection concern arises. Children First Guidance (2017) begins as follows: "It is everyone's responsibility to protect children and young people and to do our best to keep them safe."

This case highlights the fact that while the motives of the reporter may be questioned, a reporter's malice must be proven in order for the defences under the law to be lost. The onus of proof is placed on the person alleging malice to make that case. Where such malice has not been proven, the reporter can rely on the protections afforded under the legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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