Figures released by the Office of the Director of Public Prosecutions show that, in 2019, 459 people were prosecuted in Ireland for sexual offences. Among the cases was that of one of the youngest complainants in the history of the State, who was just three years old at the time of her disclosure.
“Sometimes I feel we were guinea pigs, a test case the State was never going to win. After four years of battling the system, we know how dangerously inefficient it is,” says Kate, a mother of two in her 40s.
It began one evening in November 2016, on a day like any other. A school day, a work day, a normal day. Kate collected her two young kids from the childminder, prepared dinner and ran them a bath.
He puts his fingers up me deep
As Kate was drying Zoe (3), she noticed her vagina looked sore. “I wonder why you keep getting red there?” she asked. “It’s probably because Dave keeps tickling me there,” the child replied. Kate asked where he tickled her. “On my belly, my bones and my bot.”
The three year old touched her ribs, her bottom and the top of her hips. When Kate asked her if Dave did anything else, Zoe replied: “He puts his fingers up me deep.”
Struggling to maintain her composure, Kate asked her husband, Tom, to settle Zoe, who was anxious after seeing her mother upset.
Reeling, Kate phoned a social worker, whom she knew through her work, to ask for advice. “Reassure her that she’s a good girl for telling Mammy, write everything down that she said and go to see your GP in the morning,” was the response.
Kate and Tom’s children had been minded by Susie, a childminder with 20 years’ experience, at her home since March 2016. It was an arrangement that had worked nicely to date.
Susie looked after two other young children also, and the four little ones got along well. In September 2016 Zoe started playschool. At that time, Susie asked the couple’s permission for Zoe to be collected at lunchtime by her husband, Dave. They agreed.
“Of course you feel you have to get a sense of who will be looking after your children. We interviewed Susie and she seemed good. We didn’t meet him in a formal sense. But something like this happening is the furthest thing from your mind,” Tom says.
“Looking back now I shouldn’t have left them with someone I didn’t know. If I had my time over, obviously, I just wouldn’t have. I put it off for ages because I didn’t know how to go about choosing someone I didn’t know,” says Kate.
The following morning, in a state of shock, Kate attended her GP, who took detailed notes. The doctor did not ask to see the child. Hours later, the doctor phoned Kate advising her to go to the Garda and report what had happened.
Specially trained gardaí attended the family home two days later. They explained to Kate and Tom that they would spend time alone playing with Zoe, and if she made a disclosure about Dave, they would begin the formal process.
Zoe did so, and the Garda opened an investigation.
Three days after Zoe told Kate what had happened, gardaí asked Zoe to attend St Louise’s Unit in Crumlin hospital for a physical examination. It was “a horrendous experience” from Kate’s point of view. “I deeply regret doing it now that I know how few cases secure evidence from it, even when sexual abuse has been admitted.”
Unlike the Sexual Assault Treatment Unit at the Rotunda Hospital, which operates on a 24-hour basis, St Louise’s is accessible during office hours only. This meant waiting for an appointment. The fact that Zoe was seen after the 72-hour recommended timeframe went against the prosecution at trial.
They even wanted her back in six months later to do a follow-up blood test. We said no and that was used against us in court of course
Kate and Tom did their utmost to normalise Zoe’s visit to hospital. However, the medics wanted her to have a blood test to check for HIV and hepatitis. It is a frequent procedure in forensic assessments for under-14 year olds, but Tom thinks now it was “utterly unnecessary”.
“It traumatised her so badly and she now has a massive phobia of all needles ... They even wanted her back in six months later to do a follow-up blood test. We said no and that was used against us in court of course,” he says.
The clinic has clarified that it “provides forensic ... medical examinations for children and young people when there is a concern or disclosure of child sexual abuse”. Its approach “is influenced by both national and international best practice”. Samples taken are determined on a case by case basis but “screening for infectious diseases will usually be taken – swabs for chlamydia and gonorrhoea and bloods for blood-borne viruses.”
One week later, in compliance with its statutory duty Tusla, the Child and Family Agency, opened its own investigation after being informed of Zoe’s disclosure by investigating gardaí.
It was at this point, as the shock wore off and the horror became a fact of life, that Kate and Tom began to feel that neither Tusla nor gardaí knew, with any sense of clarity, what lay ahead for the family in a practical sense.
“We didn’t even get a letter from Tusla laying out exactly what would happen. I mean, they say in their own policy document that they will write to you immediately,” Tom says.
Equally, the couple say, gardaí did not give them a handbook or any printed material with advice, resources or procedures. They met a liaison officer only once in three years of dealings with the Garda. Their world had been turned upside down and they did not feel supported by either State body.
“The interaction between the Garda and Tusla seems to be very, very lax,” says Tom. The couple repeatedly got the sense that the professionals they were dealing with were aghast at the young age of their daughter.
Tusla outsourced its investigation to St Clare’s, a child sexual abuse assessment unit based at Temple Street hospital. Here, social workers and psychologists met Zoe five times, starting in January 2017. These experts were tasked with deciding whether her disclosure of sexual abuse was “credible” or “not credible”.
Three months later they informed Kate and Tom that their assessment concluded that a credible case of abuse existed. But with this progress came frustration.
“We couldn’t believe that we weren’t entitled to a copy of the report at that stage,” says Kate. The couple have since received a copy under a Freedom of Information request.
“Throughout the entire process these were the only professionals qualified to determine if Zoe was telling the truth, and yet their report isn’t admissible at trial. The jury never hears their findings because of the rule against opinion evidence. We feel a change to the law is needed in the cases of very young children, because their credibility is so open to attack,” Tom says.
In December 2017 gardaí contacted Kate and Tom with some good news. Dave was being charged. The DPP felt the evidence threshold had been met for Dave to stand trial. “We were just elated, absolutely thrilled. We honestly didn’t think it would happen.”
Even if Dave had not been charged by gardaí, Tusla remains statutorily obliged to ascertain whether a “founded allegation” of child sexual abuse exists. If it finds that it does, it must inform his employers, its primary duty being to share this information to safeguard children.
Yet, 15 months on from the St Clare’s report issuing, and despite countless letters from Kate and Tom, there was no action.
"We had written to TDs and to the minister for children and youth affairs, Katherine Zappone, because we were so frustrated. And all this time, in his job, he had limited interaction with children," says Tom.
In the summer of 2018 Tusla reported that a founded allegation existed. The couple were immensely relieved. This was short-lived however, as Dave quickly lodged an appeal.
At just six years of age, Zoe was one of the youngest witnesses ever to give evidence at a criminal trial
The couple were informed that the trial was set for October 2019, a period of almost two years after Dave had been charged with the crime of sexually assaulting Zoe. They complained loudly to the Garda and it was brought forward slightly.
It was here that the lack of supports for child witnesses in the Irish legal system were laid bare, according to the couple. At just six years of age, Zoe was one of the youngest witnesses ever to give evidence at a criminal trial.
Tom recalls the detective garda in charge of the case insisting on multiple occasions that the only way the family could access the Criminal Courts of Justice in Dublin was through the front door. “This would have meant getting there hours before court started and keeping Zoe occupied rather than risk running into the defendant and his family,” he says.
After hearing that witnesses “with connections” had been facilitated, the couple pressed the Garda, and to their disbelief provision was made for them to enter through a back door.
“We were smuggled in and had to swap cars with a garda in a nearby car park; it’s just inconceivable there is no proper provision for a separate entrance for vulnerable witnesses,” he says.
The couple cite a litany of things that made Zoe’s experience at court much more difficult than anticipated. Initially, there was no room available for her to view her DVD evidence before it was shown to the jury. After a frantic search one was found.
The technology in the courtroom broke down repeatedly so Zoe had to leave the video-link room and return to it numerous times. “All that expensive marble, and the IT is substandard,” Kate says.
In the lead-up to the trial, it was Tom who requested that the DPP consider using an intermediary in Zoe’s case. An intermediary is an expertly trained person who explains questions that are put by barristers to a vulnerable witness. They were legislated for in Ireland in the Criminal Evidence Act 1992 but have been used only a handful of times since.
They are used consistently in child sexual abuse cases in the UK. The intermediary meets the child before the trial and assesses their ability to answer and comprehend questions. The intermediary sits in the video-link room during the trial, making it less daunting for the witness.
Although the DPP arranged for Zoe to have one, the trial judge ruled that the intermediary, who travelled over from England, was not needed, a crushing blow for Kate and Tom.
During legal argument, in the absence of the jury, the senior counsel for the defence put it to the intermediary that she was there to make herself an indispensable part of the trial procedure in such cases in Ireland.
The defence asked her nothing else because they knew if they did it would have permitted her to tell her story. Silencing her is unforgivable
In ruling that her services were not required, the trial judge said “we” didn’t need a person to travel to Ireland to explain how to talk to children.
“The treatment the intermediary received in court was embarrassing,” says Tom. “The fact they’re not used here in common practice is gravely unfair to child witnesses.”
After Zoe’s DVD testimony was played, wherein she described Dave’s actions, her cross-examination began. She was asked whether she believed in Santa, in the tooth fairy and in the Easter Bunny, but “her complaint was never put to her”, says Kate.
“What Dave did was never put to her. The defence asked her nothing else because they knew if they did it would have permitted her to tell her story. Silencing her is unforgivable,” she says.
As is standard procedure in any criminal trial, the prosecution was unable to ask Zoe any questions about what Dave was alleged to have done because the defence had not asked any questions about it in their cross-examination.
The State’s delay in bringing the case to court meant that the defence repeatedly referred to “the passage of time”.
“We felt this was used to cast aspersions on Zoe’s credibility to recollect what had happened to her. In comparable cases in the UK, a trial comes to court within six months of a defendant being charged. It needs to change here,” Kate says.
Under the Young Witness Initiative in the UK, the Crown Prosecution Service fast-tracks cases in which the complainant is under the age of 10. The rationale for this is that the child will have a better chance of remembering what occurred.
The couple had taken Zoe to Cari, or Children at Risk in Ireland, before the trial. They explained to Zoe that the court was a place where she would get to tell her story. “I wish they hadn’t told her that now, because in the days afterwards she asked why she never got to tell the judge what Dave did,” Kate says.
“She would have told her story to the jury in a pure way. I think the defence saw how bright and articulate she was and didn’t take this risk,” Tom adds.
During Kate’s time in the witness box, the senior counsel for the defence asked how was it that a young child like Zoe came to know the words “penis” and “vagina”. Kate replied that it was part of the National School Curriculum to teach children the correct names for body parts and those terms were used in the family home.
“He smirked at my reply and I got cross, so I said to him, ‘Do you find this funny? Because I don’t find this funny.’ I felt he was implying that she had been primed to make a complaint of abuse, which is outrageous,” she recalls.
Delay after delay after delay, and all the time four lives on hold
After a 10-day trial, Dave was acquitted. For Tom and Kate, it was a devastating blow.
“We accept the decision of the jury based on the evidence in front of them, but we believe their decision may have been different had Zoe’s case been put to her, had the intermediary been allowed, and if the St Clare’s report was admissible,” Tom says.
The couple say their expectations of Dave being convicted were low, as figures from St Clare’s reveal that only 4 per cent of cases in which an expert psychological assessment concludes that a credible case of sexual abuse exists proceed to court. Of these, only half result in a conviction.
“I think it’s inexcusable that the State considers it acceptable for a criminal case involving a young child to take 2½ years to get to court. Delay after delay after delay, and all the time four lives on hold,” Kate says.
As the couple pieced their lives back together over the next few months, their one saving grace was that Zoe was showing no signs of being affected by what she had endured.
However, they were becoming increasingly concerned that Dave’s appeal to Tusla to have the founded allegation overturned, a process that they had been told would take six to eight weeks, had not concluded a year later.
“The level of Tusla’s safeguarding thus far had involved going into Susie’s house, telling her what he was accused of and that he’s not allowed to be alone with children any more and that she’s to stop minding children in her home,” Tom says.
Kate recalls that within weeks of this she saw Dave driving around with his toddler grandchildren in the car.
The couple kept hearing the same response from Tusla: “The appeal panel is independent and we cannot be seen to try to influence or force it.”
Finally in January 2021, 18 months after what should have been a two-month investigation, Tusla contacted them to say Dave had won his appeal. “The very worst part is that we, as Zoe’s parents, are not entitled to know why. We are not entitled to that information. It’s cruel. Just cruel. There’s no other word for it,” Kate says.
Kate contacted St Clare’s and was told that the appeal panel did not speak to the social workers and psychologists who assessed Zoe. The family are left baffled about how the decision was overturned without consultation with the professionals who say Zoe was abused. Zoe’s file has been closed by Tusla, as she is deemed safe.
“Four years. It’s a staggering amount of time during which we wrestled with the presence of this in our lives almost every single day,” Tom says.
There are no further safeguarding measures in place for Dave, and Susie can now resume childminding services in their home.
So what of the future?
The couple harbour many concerns about their bubbly, bright, resilient little girl. “She has coped unbelievably well with everything she has been through,” Kate said. They worry about the questions she’ll have as she grows up, and tries to make sense of what happened to her.
“She’ll know that her three-year-old self was so brave, that she spoke out and was believed by the experts and by us, but then nothing. No conviction, Tusla’s initial decision overturned on appeal. And we won’t even be able to tell her why. We dread that conversation.”
Tusla’s response
In response to a detailed query from The Irish Times, setting out the points raised in this article, Tusla provided the following statement: "It is not appropriate for us to comment on individual cases. When a person enters into an engagement with us they have a right to expect that information generated in that relationship is, and remains private. We are always happy to meet with people who feel they have unresolved issues or concerns and we are happy to meet the family in this case should they wish to do so."
All names have been changed to protect the anonymity of the parties involved
