One day in 2017, two seven-year-old children had a typically innocent encounter in a school playground. The ultimate outcome of the incident, which lasted for about a second, has been trauma for one of the families, serious questions around training for school principals, and whether or not it is correct that a record be kept on a child wrongly accused of “sexual abuse”.
It happened on February 10, 2017 during “big” lunch at the primary school which is in Munster. Both children agree on the basic facts. The girl came up to the boy. He had just turned seven, she was a little older. She told him he had a nice hat. He responded by “poking her in the private part”.
She told the teacher who informed the principal. Some three months earlier, there had been a separate alleged incident between the two. The girl had told her mother one weekend in November that the boy had “grabbed her in the genital/private area” at lunchtime. It is unclear whether the girl used the word “genital”. The boy had no recollection of any such event.
Nobody else saw it and it was not recorded on the CCTV trained on the school yard. The teacher was not told about it on the day it allegedly occurred. There is no evidence that it ever happened apart from the girl telling her mother at least one day later. The school’s policy on such matters is on the record.
Most professional opinion would say that the allegation here didn’t even constitute sexualised behaviour between a six-year-old (as the boy was then) and a girl of seven.
Either way, the matter was handled according to policy. Parents were spoken to and, in a class on SPHE (Social Personal and Health Education), the teacher mentioned the issue of good and bad touches in the school yard.
The parents of both children met and there was no problem. The girl attended the boy’s birthday party a few weeks later. And then, in February, the incident with the hat occurred. It was caught on CCTV and is, as related by both children, spontaneous and instantaneous.
The principal decided to make an official report to Tusla. He filled out a standard intake form to report child protection and welfare concerns. In it, he provided a narrative of the two incidents.
He submitted the report on February 13, 2017. In Tusla, they saw immediately that this was not something to worry about. The social worker who completed the form noted: “Allegation unfounded — normal sexual exploration. Referral closed at intake.”
Three days later a letter was dispatched from Tusla to the school principal. It read: “The Child and Family Agency has assessed that this alleged incident does not meet the threshold in respect of alleged abuse. The definition of sexual abuse is an abuse that occurs when a child is used by another person for his or her own sexual gratification or arousal.
“The two children involved in this alleged incident are seven years old.
“I want to clarify that normal sexual exploration involves naïve play between two children and one of the key aspects of this behaviour is its tone. There should not be any coercive or dominating aspects to this behaviour.”
The boy’s parents are adamant the principal overreacted and went well beyond the school’s stated policy. Yet the board of management backed up the principal. In response to a complaint from the boy’s family, the board wrote that it was the “considered view of the BOM that the principal has followed all procedures and that he dealt with the matter in consultation with Tusla and the school’s protection policy”.
That statement would appear to be at variance with the facts and the school’s policy as outlined above. The family’s next issue was with Tusla. Their son was now on file at the Child and Family Agency as being the subject of an allegation of sexual abuse.
Requests that the file be deleted on the basis that it was an unfounded allegation concerning a seven-year-old were rejected. The family appealed this decision. The appeals officer wrote to the family with a decision, saying she “cannot agree to destroy this data and file as it has been correctly created in response to a report of a concern for a child, in accordance with Tusla’s own policies and procedures.”
The letter went on: “I wish to acknowledge to both of you the obvious difficulty experienced by you and by (boy’s name) following the report made by his school to Tusla. It appears that while Tusla’s own involvement was short-lived with a clear outcome for (boy’s name) which indicated no cause for concern, unfortunately other communications and decisions related to his former school have unfolded which have caused you significant difficulties. These issues however fall outside the scope of this appeal.”
By the time of the appeal, the parents had moved their three children from the school. They had also felt compelled to move from their GAA club because of ties to the school. They also moved church because of connections between a priest and the school.
Tusla’s position is curious. The Irish Examiner asked Tusla to specify the policy or legislation that demanded the retention of a record such as this. The agency responded with a statement (on this page) which did not address specifics.
Data protection law in this area emphasises proportionality. Article 5 of the GDPR data legislation states that data must be “kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.”
How long should a record of an unfounded allegation of sexual abuse against a seven-year-old — dismissed immediately within the agency — be kept?
There are issues here for how schools deal with allegations and how Tusla retains records. For the family concerned, the whole affair has had a life-altering effect.
“It destroyed us,” the boy’s father told the Irish Examiner. “I don’t say that softly. We have had to change school, club and even the church we go to. Two of my kids have spent time in therapy over it. My son is a soft guy and now he’s afraid to go near anybody. He did nothing wrong.
“When they grow up, at some point they’re going to look back on it and say ‘daddy you did nothing about it’. But I have all the files that show what went on. I know what happened. I know how we were treated.
Tusla response to questions regarding retention of records
The Irish Examiner submitted the following questions to Tusla:
RESPONSE FROM TUSLA:
Tusla processes personal data for the stated purpose for which is it collected, under consent or other legislation to which Tusla is required to adhere. The legislation to which Tusla is obligated to operate within is complex, including and not limited to, the Child and Family Agency Act 2013, Children First, and data protection legislation.
Therefore, a particular set of circumstances may arise where complex legal and regulatory consideration is required in order to achieve a resolution to a matter.
Tusla has a Record Management Policy which sets out a number of record retention limits, up to and including in perpetuity.
Legislation does not provide prescriptive retention periods for records but rather a framework within which multiple rights and statutory obligations must be balanced and apportioned.