Court allows redacted parenting capacity report sharing to ensure fair trial and children's best interests.

Record No: 2024/25189

Neutral Citation: [2025] IECC 5

AN CHÚIRT TEAGHLAIGH CHUARDA

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE CHILD CARE ACT 1991

AND IN THE MATTER OF M.S, A CHILD AND IN THE MATTER OF E.S, A CHILD

Between

L.M

APPLICANT /APPELLANT AND CHILD AND FAMILY AGENCY, E.S & THE GUARDIAN AD LITEM

RESPONDENT(S)

Judgment of her Honour Judge Jennifer O’Brien delivered this 16th day of May 2025

1. This matter comes before the court by way of appeal from the District Court in respect of an order made on 5 December 2024.

2. The applicant/appellant is the father of the above-named children the subject of the within proceedings who are in the care of the first named respondent. A parenting capacity assessment took place in respect of the second named respondent, the mother of the above-named children (the “report”). The first named respondent and the second named respondent have declined to share the report of the said parenting capacity assessment with the applicant/ appellant’s legal advisors. The District Court at first instance refused an application by the appellant pursuant to section 47 of the Child Care Act, 1991 seeking a direction that the said report be shared. As such, the appellant has applied to this court seeking an order pursuant to section 47 of the Child

Care Act, 1991 directing that the parenting capacity assessment report prepared in respect of the second named respondent be shared with the appellant's legal advisers.

The appellant has also filed an affidavit in the matter in which he avers that he is the father of the children the subject of these proceedings. M was born on the 27th of August 2022 and was made the subject of an interim care order pursuant to section 17 of the Child Care Act, 1991 (“the 1991 Act”) on 22 September 2022. E was born on 7 June 2023 and an emergency care order under section 13 of the 1991 Act was granted on 17 July 2023 followed by an interim care order thereafter. The said interim care orders have been extended from time to time up to the present date. It is acknowledged that the Child and Family Agency now wish to move forward with its application for care orders in respect of both children pursuant to section 18 of the 1991 Act, that is for the remainder of their minority.

3. The appellant goes on to aver that the parenting capacity assessment carried out in respect of Ms E. S has not been shared with him or with his legal advisors. He states that by letter dated 12 November 2024 his solicitor wrote to the solicitors for the Child and Family Agency (the “CFA”) requesting that the report be shared. That letter is exhibited. By replying letter dated 15 November 2024 the CFA confirmed its refusal to share the report. The appellant avers that an application was moved on his behalf requesting the District Court to make an order pursuant to section 47 of the 1991 Act directing that the report be shared as previously requested. The court rejected that application. He avers that although there was a suggestion that a redacted version of the report would be prepared by the CFA to be approved by Ms. E.

S and then circulated to his legal advisors, it is his understanding that the redacted report did not materialise. He avers that in consequence no version of the report has been provided to his legal advisors by the CFA.

4. The appellant goes on to aver that the CFA has indicated its intention to apply for care orders in respect of his children until they are both 18 years old. He avers that he would not consent to this outcome and accordingly given the significance of the orders sought by the CFA he sets out his concern that orders of this kind will be made in respect of his children with this key evidence having been withheld from him. He avers that in the absence of all evidence, it is not possible to properly assess the case against him. He says he cannot be fully advised by his legal advisors, nor can he provide informed instructions to them. He avers that cross-examination of the author of the report and almost certainly other witnesses, cannot be adequately prepared.

5. The appellant gives further evidence that he would not agree to his children simply being cared for by Ms. E.S. He avers that in circumstances where a possible outcome of the upcoming applications is the return of the children to her care, that he is not in a position to adequately prepare for and address that outcome in the absence of the report being shared with his legal advisors. He says that the report may contain information relevant to arguments that he might raise in that regard. He avers that the withholding of the report is actively hindering his ability to prepare for the full care order hearing.

6. The court heard and read legal submissions put forward by counsel for the appellant, counsel for the Child and Family Agency, counsel for the second named respondent and counsel for the guardian ad litem. These are set out below:

LEGAL SUBMISSIONS OF THE APPELLANT

Factual Background

1. On 28 November 2024, the Appellant sought a direction under s.47 of the Child Care Act 1991 (“the 1991 Act”) that Child and Family Agency (“the CFA”) share with his legal advisers a copy of the July 2024 Parenting Capacity Assessment Report, prepared by Consultant Clinical Psychologists Dr Coman and Ms Lynch-Coman, in respect of the Second-Named Respondent, Ms. S. (“the Report”). This was refused by the District Court. Although the CFA suggested a redacted Report may be provided, Ms S. opposes this. The Appellant now appeals the Court’s decision, seeking:

“An Order pursuant to s.47 of the Child Care Act 1991 directing that the Parenting Capacity Assessment Report prepared in respect of the Second- Named Respondent be shared with the Applicant’s legal advisers.”

2. In the underlying proceedings, the CFA is otherwise prepared to move applications under s.18 of the 1991 Act seeking Care Orders until the age of 18 in respect of M.

(DOB: 27 August 2022) and E. (DOB: 7 June 2023), the children of the Appellant and Ms. S.

3. First, the Appellant does not agree to Care Orders being made until the age of 18. The CFA will rely on the Report, and its authors as witnesses, in seeking to obtain the Care Orders. Effective cross-examination of these and almost certainly other witnesses will be impossible if the Report is withheld. In the absence of all the evidence, the Appellant cannot be fully advised, form views on the issues, and provide informed instructions.

4. Second, the Appellant disapproves of Ms S. caring for his children. Where a possible outcome of the s.18 applications is the return of the children to her care, and as it can be presumed Ms S. will advance that proposition at the hearing, the Appellant requires sight of the Report if he is to adequately prepare to meet that case.

5. It is submitted that the withholding of the Report is unlawful and will result in the violation the principles of natural and constitutional justice, including fair procedures, as well as a failure to act in the best interests of the children.

Issues

6. It is submitted that the following issues arise:

(i) Whether this Court has jurisdiction to make the direction sought.

(ii) Whether it is in the children’s best interests that the direction be made.

(iii) Whether the Appellant’s rights are infringed by withholding the Report.

Jurisdiction

7. This Court has the necessary jurisdiction under s.47 of the 1991 Act:

“Application for directions.

47.—Where a child is in the care of the Child and Family Agency, other than special care under Part IVA, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.” (Emphasis added)

8. The emphasised text confers a jurisdiction broad and comprehensive. In Eastern Health Board v McDonnell [1999] 1 IR 174, McCracken J said s.47 “gives an extremely wide jurisdiction” and is an “all embracing and wide ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court” (p. 184). Similarly, in Western Health Board v KM [2001] 1 IR 729, the High Court (Finnegan J), in a judgment upheld on appeal by the Supreme Court in Western Health Board v KM [2002] 2 IR 493, said (p. 734):

“this section is couched in the widest possible terms and I can find nothing in the Act of 1991 insofar as the same deals with the powers, functions and duties of the District Court to suggest that a restrictive interpretation of s. 47 is appropriate… s. 47 empowers the District Court to do whatever it deems

appropriate to achieve the policy of the Act of 1991 as a whole and the objective set out in s. 24 of the Act of 1991.” (Emphasis added)

9. This extensive jurisdiction is engaged when child welfare issues arise. In VQ v Horgan [2016] IEHC 631, Baker J emphasised the “far reaching and wide jurisdiction” of s.47 which occurs when “matters arise which require consideration of the welfare or interests of the child” (para. 39). As stated in Eastern Health Board, where matters arise “which could reasonably be considered adversely to affect the welfare of the child, and only in such circumstances, should the District Court interfere” (p. 184).

10. The background to this appeal is an impending hearing where s.18 Care Orders may be made in respect of two children. The conduct of that hearing affects their welfare and interests as their lives will be changed by its outcome. Once that welfare issue arises, s.47 is “designed to give the District Court full authority to give directions to the H.S.E. in all matters pertaining to the welfare of the child who is in care” (JG v Staunton [2014] 1 IR 390, paras. 28–29). This includes a direction that the Report be shared as requested.

Best Interests of the Children

11. Section 24(1) requires a court to “regard the best interests of the child as the paramount consideration”. The non-exhaustive list of factors provided is of little aid in this dispute over net legal issue, pertaining more to the s.18 hearing itself. But s.24(2) permits a court to have regard to “all of the factors or circumstances that it considers relevant”. In this respect, the Appellant notes that taking a child into care is an “extreme measure” of “very last resort” (Achim v Romania (App No 45959/11). It is clearly in the children’s best interests to ensure, if s.18 Orders are made, that this is the right decision. Fundamental to this is ensuring that parents’ procedural rights are vindicated to allow them to fully and robustly test the evidence. To require the Appellant to engage in the s.18 hearing without evidence available to him does a disservice to the children the subject of the proceedings, impermissibly limits their rights under Article 42A.4.1° of the Constitution and s.24 of the 1991 Act, and violates his own rights.

The Rights of the Appellant State (D and D) v Groarke

12. In State (D and D) v Groarke [1990] 1 IR 305, the Supreme Court in the context of child care proceedings commented (p. 310):

“[F]or a lawyer acting on behalf of the parents and therefore joining issue on the question of abuse, to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had, in good time before the trial, reports or summaries of the evidence which was to be given…”

13. This passage indicates that the Appellant’s legal advisers are entitled to the Report.

The Appellant is contesting (at minimum) the length of the Care Orders sought and Ms S.’s request to care for the children herself. He cannot adequately do so without sight of the relevant evidence. In circumstances where the authors of the Report will be called as witnesses, the Appellant’s legal advisers will not “be in a fully prepared position to cross-examine” them in the absence of the Report. Nor will they be fully prepared to cross-examine other witnesses, as the Report feasibly contains information which could form part of those cross-examinations.

14. This judgment was applied in Child and Family Agency v C [2015] IEDC 14 where a s.18 hearing was adjourned to permit a Respondent parent to be provided with recordings of interviews of their child. In other words, the hearing could not proceed without the Respondent parent being access to all the evidence (para. 7):

“The principal basis of the second adjournment application was that in the interests of fair procedures and in accordance with the State (D and D) v Groarke [1990] IR 305, C required sight of recordings of interviews of Child A by the Gardaí and other Agencies, which had not up to that date been made available to C. The Court granted the second adjournment application. The Court then set new hearing dates for the section 18 proceedings…”

DK v PIK

15. This position is supported by DK v PIK [2022] IECA 54. The case concerned a judicial separation where the High Court refused the mother’s application to relocate the children, in circumstances where the judge had met the children after the hearing but before issuing a decision. The mother appealed the Order and requested the digital audio recording of that meeting. This request was refused by the High Court and appealed to the Court of Appeal. State (D and D) v Groarke was cited by the mother as authority for the proposition that fair procedures required that all evidence relied on by a court be known and available to the parties (para. 25). The Court of Appeal held that the mother was entitled to see the transcript in issue. Given its high degree of relevance to the instant appeal, this judgment requires thorough quotation:

“52. The principle that a litigant ‘should be able to see and hear all the evidence which is seen and heard by a court determining his case’ has been said to represent ‘an irreducible minimum requirement of an ordinary civil trial’ (Al Rawi v Security Service [2010] EWCA Civ 482, [2012] 1 AC 531, para 30).

53. In AP v Minister for Justice and Equality [2019] IESC 47, [2019] 3 IR 317, Clarke CJ… noted that it did not appear ‘that there is any provision in Irish law which would allow a court, making a substantive decision on the merits, to have regard to information which is not available to both sides of the case’… In the following paragraph, he expressed the view ‘that, in judicial proceedings, a court cannot have regard, in coming to its ultimate conclusion on the merits, to materials or evidence which were not generally available to the parties”…

54. The judgment of O’ Donnell J… in AP is to the same effect… [H]e noted that ‘it had not been sought in Irish law to provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties.’ Instead, he went on, ‘the law, through the medium of the decided cases, sought a variety of ad hoc measures to try to achieve a difficult balance between the competing interests, while maintaining the principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.’

55. According to O’Donnell J, it must be recognised ‘that fundamental issues are involved if it is contended that a person can be the subject of an adverse

decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld’… He noted the absence of any legislation in this jurisdiction providing for a closed material or special advocate procedure, while also agreeing with Clarke CJ (and with Hogan J in the Court of Appeal in AP) that ‘there are, to put it at its lowest, serious doubts whether it would be permissible to provide that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party’ (para 132).

56. AP is therefore authority for the ‘principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.’ That is so even in extreme cases, where the security interests of the State are at issue. While the Supreme Court in AP did not rule out the possibility that some form of closed materials/special advocate procedure might be provided for by the Oireachtas, it also recognised that there appeared to be limited scope for doing so under the Constitution.

57. These principles apply to the determination of appeals to this Court as they apply to determinations of disputes at first instance in the High Court (or any other court). Each involves the administration of justice under the Constitution and each accordingly requires adherence to the basic ground rules of constitutional adjudication.

58. Are family law proceedings, or at least proceedings involving children, in a different category, as counsel for DK suggested in argument? …

61. … Even if… custody/access disputes under the Act ought properly to be treated as being akin to child protection or wardship proceedings, that would not lead to any dilution of the principles articulated in AP. The principle that a court cannot, in making a substantive decision on the merits in adversarial proceedings, have regard to information that is not available to both parties ‘is not … to be seen as weakened by the fact that the process in question is inquisitorial rather than adversarial in nature.’: per O’ Malley J (for the Supreme Court) in AC v Cork University Hospital [2019] IESC 73, [2020] 2 IR 38 (para 378 of the report). In AC, O’Malley J concluded that the circumstances in which the order taking AC into wardship had been made breached her constitutional right to fair procedures. One of the grounds for that conclusion was that the order had been made on the basis of a report of the medical visitor, and an affidavit from the HSE, that had not been disclosed to AC (para 376).

62. It is clear, accordingly, that the principles set out in AP apply to these proceedings…

63. It may be that some departure from those principles can be justified in the particular circumstances of a given case. That is the approach that has been taken in England and Wales… Whether, having regard to AP and AC, such an approach is open to an Irish court may be open to question. But even if such an approach is open here, it is clear that any departure from the fundamental principle of disclosure in this context would require compelling justification. There is no such justification here in my view. …

73. AP and AC clearly indicate that to have required PIK to present her appeal in circumstances where she and her legal representatives had not had sight of material that was clearly relied on by the Judge in reaching the decision the subject of the appeal would have been fundamentally unjust and contrary to the basic ground rules of the administration of justice under the Constitution. In these circumstances, and in the absence of any relevant countervailing factors, the Court concluded that the order sought by PIK should be made.

74. Article 6(1) ECHR supports that conclusion: see the decision of the ECtHR in McMichael v United Kingdom (1995) 20 EHRR 205… Article 6(1)

applies to proceedings before this Court on appeal. McMichael… also suggests that the non-disclosure of material in proceedings involving custody/access may amount to a breach of the rights of a parent under Article 8 ECHR.

However, it is not necessary to consider the Convention further given the conclusions I have reached on the basis of Irish law.” (Emphasis added)

16. The following principles can be distilled from the judgment in DK:

(i) A litigant seeing and hearing all the evidence seen and heard by a court is an “irreducible minimum requirement” of an ordinary civil trial.

(ii) A court “cannot” have regard, in coming to its ultimate conclusion on the merits, to materials or evidence which were not generally available to the parties. No provision in Irish law allows for this.

(iii) Irish law does not provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties.

(iv) There are, to put it at its lowest, serious doubts whether it would be permissible to provide [in legislation] that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party.

(v) In any court decision, the administration of justice “cannot” be based on evidence which is not disclosed to the parties. That is so even in extreme cases, where the security interests of the State are at issue.

(vi) These principles apply across all courts. Each involves the administration of justice under the Constitution and each accordingly requires adherence to the “basic ground rules of constitutional adjudication”.

(vii) That a case involves child care matters, or is inquisitorial rather than adversarial in nature, would not lead to any dilution of these principles.

(viii) It may be an open question as to whether departure from these principles can be justified in a given case. But even if that approach is available, it would require “compelling justification”.

(ix) On the facts in DK, to proceed where a party has not had sight of material was clearly relied on by a judge in reaching a decision “would have been fundamentally unjust and contrary to the basic ground rules of the administration of justice under the Constitution”.

17. It is pointed out, also, that withholding evidence infringes the principles of natural and constitutional justice, including fair procedures. It fails to accord with the principle of audi alteram partem because, as explained by MacMenamin J in PC v Minister for Social Protection [2018] IESC 57, “often the other side will have something to be said in their favour, which must be heard, considered, and factored into the decision”

(para. 21). In short, “what is required is that an applicant must have an opportunity of making his or her case” (VJ v Minister for Justice [2019] IESC 75, para. 45).

Application to the instant case

18. It is submitted that the principles contained in DK form an imperative requiring the direction sought. The Appellant highlights that sharing the evidence is a “basic ground rule of constitutional adjudication” and an “irreducible minimum requirement” of a civil trial. This terminology approved by the Court of Appeal is critical. “Irreducible” is defined as follows: “That cannot be reduced”; “That cannot be reduced to a simpler or more intelligible form”; “That cannot be reduced to submission; invincible, insuperable” (Oxford English Dictionary). Similarly, the Supreme Court in AP held that “a court cannot have regard… to materials or evidence which were not generally available to the parties”, and that “in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties” (emphasis added). The word “cannot” is mandatory language.

19. It is essential that the Supreme Court in AP stated that there is no provision in Irish law which would allow a court “to have regard to information which is not available to both sides of the case”, and that O’Donnell J had “serious doubts” about whether that would be constitutional. Similarly, the judgment in State (D and D) v Groarke does not envisage a hearing proceeding without evidence being made available to both parties. The Court of Appeal in DK also did not approve the proposition that these principles could be departed from by a court, but rather noted that it “may” be an open question. Accordingly, the Appellant respectfully contends, based on the legislative framework and the jurisprudence, that the provision of the Report is, literally, an “irreducible minimum requirement”; that this Court “cannot” permit the s.18 hearing to take place with key evidence withheld from the Appellant. This approach aligns most closely with the authorities of DK, AP, and State (D and D) v Groarke.

20. Without prejudice to that submission, should this Court take the view that there can be circumstances in which evidence may be withheld, as stated in DK this would require “compelling justification”. This means there is a presumption in favour of disclosure and the burden of proof is on the CFA and/or Ms S. to establish the contrary.

21. While it is accepted that relevant factors exist which may be suggested to lean against the Appellant’s case, it is rejected that the high threshold of “compelling justification”

is met. By letter dated 15 November 2024, the CFA said the following factors justify the withholding of the report:

“• The respondent parents are separated for some time now

• We understand that there are domestic violence orders in place against your client

• Where is no proposal that the parents would jointly parent the children in the event of a care order not being granted

• The recommendations of the PCA will be contained in general terms within the social work report for the hearing which would, as always, be provided to you

• Your client will not be ‘in the dark’ about the PCA contents”.

It is further understood that Ms S. has expressed she does not wish for certain information contained within the Report to be known to the Appellant.

22. That the Respondent parents have separated and do not propose to co-parent in the event the Care Orders are not made are not factors of any particular relevance. There is nothing unusual, exceptional or “compelling” about them.

23. That a domestic violence Order may exist holds relevance inasmuch as it would indicate past wrongdoing on the part of the Appellant and vulnerability on the part of Ms S.. This can be considered together with Ms S.’s general wish for certain information within the Report not to be shared with the Appellant. It is submitted that even these factors are not sufficiently “compelling” in the sense which that term was used in DK. Past wrongdoing for any individual is not something which can be safely relied upon to deprive them of their procedural rights, their rights to natural and constitutional justice, in separate court proceedings—if a domestic violence Order is in place, it was the appropriate response to any such behaviour, not the withholding of relevant evidence in these proceedings. Additionally, it is respectfully suggested that there is no evidence before the Court that Ms S.’s vulnerability would be exacerbated by the sharing of the report and, even if there was, the question is whether that is sufficiently compelling to do away with an “irreducible minimum requirement” of fair procedures.

24. It is a reality of litigation, part of the “basic ground rules of constitutional adjudication” where each party is entitled to fair procedures, that certain information one may wish to keep private becomes known to another party. As the Report has to date been withheld, it is not even apparent, and there is no evidence known to the Appellant, that there would be any inconvenience and/or prejudice to Ms S. should the Report be shared. While the provision of a redacted report may, and this is not accepted, aid in curing the defects identified, Ms S. has refused same.

25. Finally, the CFA contends that the Social Work Report prepared for the s.18 hearing, that is the report of Jade O’Leary dated 27 November 2024, sets out the “recommendations of the PCA… in general terms”, and so the Appellant will not be “in the dark” about its contents. First, recommendations alone are insufficient; how can a party critically analyse recommendations without the information upon which those recommendations were grounded? Second, the said report does not even include the “recommendations”:

“4.2.5. … A parenting capacity assessment has been completed by Dr Carmel Coman Lynch and Dr William Coman, these assessments have been shared with the court and give a more detailed insight into Ms S.’s capacity to care for her children and outlines how her vulnerabilities which include her cognitive capacity seriously impact her ability to care for her children which could then lead to the children being seriously harmed.

…

9.3. Ms S. is a young mother who clearly loves her children, the social work team feel that Ms S. is engaged at present to the best of her ability, unfortunately as highlighted in the parenting capacity assessment completed by Dr William Coman in section 7.3.1 ‘Ms S. has a number of vulnerabilities that impact her ability to parent her children. These vulnerabilities are described by Dr Coman as significant and multidimensional and take into account her epilepsy diagnosis, cognitive capacity, personality, insight, interpersonal challenges and social challenges.”

26. The Appellant contends that these extracts present more questions than answers. They offer no insight into how the recommendations were arrived at, nor do they actually state what the recommendations were. The factors which are considered when assessing Ms S.’s vulnerability are set out, but no information whatsoever is provided in relation to them: “her epilepsy diagnosis, cognitive capacity, personality, insight, interpersonal challenges and social challenges”.

27. The same can be said of the s.18 report of the Guardian ad litem, J. S., dated 29 November 2024:

“8.13 E. completed a parenting capacity assessment with psychological pathways and this report was shared in July 2024. This is a detailed report which comprises of two components a neuropsychological assessment and a psychological assessment. The overall outcome of this assessment outlines that E. does not have capacity to provide her children with the care that they need. This is down to a number of complex factors impacting on E.’s life. The report states: - ‘In our opinion Ms S. presents with significant vulnerability in terms of parenting capacity and we are not confident that this vulnerability can be mitigated by intervention to such a degree that the children can be returned to her care in the foreseeable future.’”

28. Therefore, the Appellant submits that the factors placed before this Court which are said to favour withholding the Report are themselves not particularly significant. They then must be weighed against those in favour of sharing the report: these are the factors set out above. They include the “paramount consideration” that the best interests of the children are served by the sharing of the Report, as well as the rights of the Appellant to natural and constitutional justice, including fair procedures; the latter are expressly very substantial matters which require “compelling justification”

to be departed from if, indeed, it is permissible to depart from them at all.

Whether a summary of the Report is sufficient

29. The judgment in State (D and D) v Groarke said what was necessary was “reports or summaries of the evidence which was to be given and, in addition, an examination of any video recording by him and by any medical witness he proposed to call”. The question arises of whether a “summary” of the Report, if the above-quoted passages from the Social Work Report could constitute a summary, is sufficient.

30. It is contended that a parenting capacity assessment report is not one which lends itself to effective summarisation because such reports include various technical testing methods, information and data. The technical nature of the report is clear in the instant case as the Report was prepared by two Consultant Clinical Psychologists. As helpfully stated in this regard by Ms Seery, it “is a detailed report which comprises of two components a neuropsychological assessment and a psychological assessment”.

What specifically was involved in the neuropsychological assessment? What was involved in the psychological assessment? How accurate are the results? How can they be tested by the Appellant without sight of the Report? What precisely was said in relation to Ms S.’s parenting capacity which the Appellant may wish to rely on at hearing? A summary is not sufficient to vindicate the procedural rights of the Appellant.

ECHR

31. DK cited McMichael v United Kingdom (1995) 20 EHRR 205. That judgment, and Articles 6 and 8 of the ECHR, directly support the instant appeal. It held:

“the right to a fair—adversarial—trial ‘means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party’… [L]ack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children’s hearing in question but also to assess their prospects of making an appeal to the Sheriff Court.”

Conclusion

32. In summary, the Appellant submits that:

(i) This Court has jurisdiction under s.47 to make the direction sought.

(ii) The welfare and interests of the children are best served by ensuring that if s.18 Orders are made, this is the right decision. Fundamental to this is fully advised and prepared Respondent parents and evidence which has been robustly tested.

(iii) The jurisprudence is clear that in court proceedings all evidence must be available to all parties.

(iv) There is no authority which holds that such principle can be departed from.

(v) Without prejudice to that submission, “compelling justification” would be required for such a departure. No such justification is present in this case.

(vi) Highly compelling factors require the sharing of the Report: it is in the best interests of the children, and it is required to vindicate the rights of the Appellant to natural and constitutional justice, including fair procedures.

(vii) Given the nature of parenting capacity assessment reports, a summary of same is not sufficient to remedy the defects in this case.

Seán Beatty BL

16 February 2025

LEGAL SUBMISSIONS OF THE CHILD AND FAMILY AGENCY:

1. These outline submissions are filed on behalf of the Child and Family Agency.

Brief Factual Background

2. The Child and Family Agency (“the CFA”) has brought applications pursuant to s.18 of the Child Care Act 1991 (“the 1991 Act”) seeking Care Orders until the age of 18 in respect of M. (DOB: 27 August 2022) and E. (DOB: 7 June 2023), the children of the Appellant and Ms S., the Second Named Respondent. For the purpose of those proceedings the Agency obtained a Parenting Capacity Assessment Report, prepared by Consultant Clinical Psychologists Dr Coman and Ms Lynch- Coman, in respect of the Second-Named Respondent, Ms S. dated the 7th July 2024 (“the Report”).

3. In November 2024, the Appellant sought by way of an ad hoc application, a direction pursuant to s.47 of the 1991 Act that the CFA release the Report to the Appellant’s legal advisors. This was refused by the District Court. Although the CFA suggested a redacted Report may be provided, the Second Named Respondent opposes this. The Appellant now appeals the District Court’s decision and seeks a Direction “that the Parenting Capacity Assessment Report prepared in respect of the Second- Named Respondent be shared with the Applicant’s legal advisers”.

4. In the circumstance of this case the ad hoc manner in which the section 47 application was moved was entirely unsatisfactory. Same should have been brought by way of proper motion grounded on evidence. The District Court should have had the benefit of legal submissions and evidence to consider the matter in a fully informed manner and determine the issues with the benefit of a properly moved application.

The Legal Framework

Best interests of the children is the paramount consideration

5. Section 24(1) of the 1991 Act requires a court in any proceedings to “regard the best interests of the child as the paramount consideration”.

Section 47 has its limits

6. Section 47 permits the District Court to “give such directions and make such order on any question affecting the welfare of the child”. The High Court have clarified that “The District Court has an overall supervisory and directory jurisdiction in regard to the exercise by the CFA of its powers, and over the foster parents or other persons in whose care a child is placed. The case law has emphasised the far reaching and wide jurisdiction under s. 47, by which is vested in the District Court the power to make all decisions relating to the care and welfare of a child, subject only to the proviso that the court ought not interfere unless matters arise which require consideration of the welfare or interests of the child.1

7. There is no immediately clear link in the circumstances of this case between the Direction sought and the welfare of the children. However, there can be no doubt that the Constitution presumes that the welfare of children is primarily to be found within the family. Baker J in SMcG v Child and Family Agency2 underlined that a court when considering questions of the best interest or welfare of a child must also take into consideration the nexus of the relationship between mother and child and further opined that” “the interests of the parents, or of an unmarried mother of children, while they may not always coincide with the interest of the children are to be considered as a factor which must be weighed in assessing the best interests and welfare of the children”. Accordingly it is accepted in principle that the rights of the parents to fair procedures in childcare proceedings that determine parental responsibility in respect of a child going forward are intrinsically linked to the welfare interests of that child even though they may not align.

VQ v Horgan & Anor [2016] IEHC 631 [2015] IEHC 733

8. Having said that, the Agency does not accept that the nexus goes so far as to mean that any parent in childcare proceedings can bring a section 47 application predominantly to protect his or her own interests and rely on the above nexus to come within the section 47 remit. Moreover, what is really at issue here is the disclosure or discovery of a report within the context of childcare proceedings. Undoubtedly the Appellant should have invoked the appropriate court mechanism and brought an application pursuant to the District Court Rules seeking the release of the report.

Despite its breadth in my view Section 47 was clearly never intended to be a catch all section to be used in scenarios such as this. That is all the more apparent when there are express court rules in place which provide a mechanism for same.

9. Ultimately the best interests of the 2 children involved here are the Agency’s paramount consideration and the delay in bringing the care proceedings to a

conclusion is contrary to those interests. For that reason, subject to the Court, the Agency is open to reserving its position in a general sense in relation to the District Court’s jurisdiction to make such a direction under section 47 and instead deal with the merits of the application so that the childcare proceedings can be moved on as quickly as possible. Given the polar opposite positions of the parents however this may not be an option.

Nature of the Proceedings

10. The District Court care proceedings are going to determine whether the Court should place the children in the care of the Agency until they reach their age of majority or for such shorter period as the court may determine. Where a care order is in force, the CFA has like control over the child as if it were his parent. In other words in section 18 proceedings the Court is determining whether or not the CFA should effectively take the place of the parents. There can be no doubt that care proceedings are extremely serious and the consequences for both child and parent are far reaching.

Fair Procedures.

11. The Agency in bringing section 18 applications is seeking to invoke the Court’s jurisdiction to make care orders and as the statutory body it has responsibility to ensure, in so far as it is within its control, that such an application is brought in accordance with the principles of natural justice. Accordingly, the Agency must adhere to fair procedures which aim to guarantee protection, transparency and efficiency for persons whose rights and interests are affected by the outcome of such a court process. In other words, the Agency has an obligation to ensure that the rules of fair procedures are applied throughout the District Court care proceedings which may undoubtedly impact on the rights or interests of any person affected by the outcome and that includes the Appellant and the second named respondent.

12. There is no doubt that the report is evidence upon which the CFA intends to rely for the purpose of the care proceedings against the Respondent Mother. Although the care proceedings run jointly as against both parents the fact that the Report relates solely to the mother is an important one. At first glance, given the nature of the relationship between the Appellant and the Respondent mother, it is somewhat difficult to see how the Appellant can assert that his rights are impacted by the Court’s determination of the mother’s parental responsibility. However, the Appellant asserts that he is contesting ( at a minimum) the length of the Care Orders sought and the Second Respondent’s request to care for the children herself. Given that the Appellant is the children’s father it is accepted that at a minimum he has an interest in the outcome of the proceedings. In other words, even if the care proceedings were to run separately against each parent it is accepted that each would have an interest in the determination of the care proceedings in respect of the other.

That is not to say that the interest is equal given the fact that the father, as I understand it, is not a Guardian of the children. However, it is accepted in principle that the report is relevant to the issues that the Court has to determine and those issues by their very nature impact on the rights of the children and their parents.

13. The starting point therefore is that all parties should have access, via their legal advisors, to the report. In other words it is accepted that there is a presumption in favour of disclosure. However, where such disclosure impacts other constitutional rights such as are raised by the Respondent Mother, then it is the CFA’s position that a balancing of those rights must ensue. Such a balancing of rights can only be done on the evidence and this necessarily means that the person asserting the infringement of their constitutional rights must adduce the evidence in support of that assertion.

Irish Caselaw

14. In State (D and D) v Groarke3, the Supreme Court in the context of child care proceedings underlined that “[F]or a lawyer acting on behalf of the parents and therefore joining issue on the question of abuse, to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had, in good time before the trial, reports or summaries of the evidence which was to be given…”

15. In AP v Minister for Justice and Equality4 Clarke CJ noted that it did not appear “ that there is any provision in Irish law which would allow a court, making a substantive decision on the merits, to have regard to information which is not available to both sides of the case”. The judgment of O'Donnell J5 in AP is to the same effect. At para 111, he noted that “ it had not been sought in Irish law to provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties.” Instead, he went on, “ the law, through the medium of the decided cases, sought a variety of ad hoc measures to try to achieve a difficult balance between the competing interests, while maintaining the principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.”

16. In DK v PIK6 Collins J opined that AP is therefore authority for the “principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.” That is so even in extreme cases, where the security interests of the State are at issue.

17. Collins J went on to confirm as per O'Malley J7 in AC v Cork University Hospital8 that this basic principle “is not … to be seen as weakened by the fact that the process in question is inquisitorial rather than adversarial in nature”.

[1990] 1 IR 305 [2019] IESC 47, [2019] 3 IR 317, (as he then was) (Dunne, O'Malley and Finlay-Geoghegan JJ agreeing)

[2022] IECA 54 (for the Supreme Court)

[2019] IESC 73, [2020] 2 IR 38

Accordingly, there is no exception to the general rule for childcare proceedings.

However, the fact that the welfare of the children is the paramount consideration means that there is an additional factor to be considered in childcare proceedings that would not be present in other civil litigation. As Collins J underlined “such proceedings are, in essence, adversarial in nature, involving a lis between the parties, albeit one that falls to be determined within the specific framework of the 1964 Act, including the statutory injunction to treat the best interests of the child or children as “ the paramount consideration.”

18. However, Collins J continued on in DK v PIK to clarify that that did not mean the rule was necessarily absolute: “It may be that some departure from those principles can be justified in the particular circumstances of a given case. That is the approach that has been taken in England and Wales9 …………..Whether, having regard to AP and AC, such an approach is open to an Irish court may be open to question. But even if such an approach is open here, it is clear that any departure from the fundamental principle of disclosure in this context would require compelling justification. There is no such justification here in my view”.

19. Although the above question has yet to be conclusively determined by the Irish Courts it seems to me that the general rule could never be absolute notwithstanding the strength of the decisions in AP and AC. If a situation pertained for example that there was evidence of risk to a child’s life if disclosure of a Report was ordered it seems to me that the Court would have to embark on a weighing up of the rights involved vis a vis the evidence and the evident hierarchy of those rights to achieve an appropriate balance. However, in such a scenario, in my view, the Court would have to have evidence of such risk to consider departing from the general rule. I do not believe mere assertion of risk would be sufficient given the fundamental importance of fair procedures.

UK Caselaw

20. In Re D (Minors) (Adoption reports: Confidentiality) Lord Mustill laid down the

see for instance decisions such as In re K (infants) [1965] AC 201, In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC

593 and In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2013] 2 AC 66.

following guidance when attempting to balance competing rights:

“In response, I tender the following propositions, with which I understand all of your Lordships are in accord.

1.It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards nondisclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the

child and should order non-disclosure only when the case for doing so is compelling.”10

21. That case, however, involved a situation where the child to be protected by nondisclosure was also the child the subject of the adoption proceedings. However, a number of points are nonetheless relevant:

i. First the right to disclosure is in the context of court proceedings – and not a free-standing right.

ii. Second the right to disclosure arises only when a decision adverse to the party is being taken.

22. The issue of non-disclosure arose again in A v A Local Authority.11 That was a childcare case. The mother and father were of Pakistani origin. Their child had been taken into care because of concerns regarding parental capacity. During a meeting, the mother admitted to her social worker that while on holiday in Turkey she had slept with three men and had been encouraged to do so by her sister and aunt. The mother also stated that she was bisexual and also that she wished that she was a man. The trial judge ordered disclosure to the father without allowing a risk assessment to be completed regarding same. This was in circumstances where the mother feared an honour killing and danger not only to herself but to her sister and aunt.

23. The Court of Appeal overturned the trial judge’s decision. Lord Justices Etherton and Sullivan in their joint judgment emphasised that the goal was to achieve a fair balance between the various rights and interests and that particular regard had to be had to rights under Articles 2 and 3 ECHR. A danger of vigilante style death was a matter of the gravest concern, they added:

[1996] AC 593 at p.615.

[2009] EWCA Civ 1057.

“The basic principles which the Court applies to determine whether or not to prohibit disclosure of relevant information in this type of case are clear and now well established. While the historical starting point is the speech of Lord Mustill in Re D (Adoption Reports: Confidentiality) [1996] AC 593, the incorporation of the Convention into our law by the Human Rights Act 1998 has inevitably raised awareness that the relevant principles apply to the rights of all those, in addition to the child, who would be adversely affected by disclosure or non-disclosure: Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. The fundamental objective of the Court in every case is to strike a fair balance between the various rights and interests in the context of achieving a fair trial: Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828 at para [15]. It is an inevitable consequence of Article 6, but would be the same under the common law, that non-disclosure of relevant material is the exception, and should only be ordered where the case for doing so is compelling. On the other hand, it is obvious that a fair trial for the purposes of Article 6 may still be achieved without disclosure of every piece of relevant material. These are the fundamental principles which underlie the balancing exercise which the Court undertakes. While the focus in child proceedings is inevitably on the best interests of the child, there is, beyond those fundamental principles, no rigid universal starting point for carrying out the balancing exercise.

In the reported cases the conflict is usually between those who call for full disclosure of the information in order to achieve a fair trial under Article 6 and those who claim that disclosure will infringe their rights under Article 8, whether on the ground of privacy or confidentiality or some other reason. Unlike the right to a fair trial, which is absolute and unqualified, Article 8 rights are qualified rights. They are expressly subject, among other things, to protection of the rights and freedoms of others. This case concerns not only Article 8 rights, but also Article 2 and Article 3 rights, of the mother, sister and aunt of A. Article 2 and Article 3 rights are not qualified rights, and that fact as well as their position in the list of rights and freedoms in the Convention highlight their importance. A danger of vigilante style physical punishment, whether or not likely to result in death, is plainly a matter of gravest concern. That is especially true in child proceedings if the danger is to the mother or close family members of the child.”12 [Emphasis added]

24. The judges held that the Judge had not had material before him to reach his judgment on the risk of violence with regard to each of the mother, sister and aunt.13 The judges went on to state:

“The significance of the privacy and confidentiality rights of the mother, sister and aunt under Article 8 might not, in the final analysis, weigh heavily when balanced against the right to disclosure under Article 6. Further, we acknowledge and endorse the Judge's sensitivity to differences in cultures and traditions within our society. Nevertheless, in our judgment, on the specific facts of the present case, the Judge acted outside the ambit of a proper exercise of discretion in terminating the risk assessment in view of the seriousness of a possible infringement of the Article 2 and Article 3 rights of A's mother, sister and aunt...”14

25. The matter was revisited by the UK Supreme Court in the decision in Re A (A Child)15, appealing the Court of Appeal’s judgment under the name Re J (A Child:

Disclosure).16 In that case, a child, X, had made allegations against a man, F, who was the father of a child, A. A’s mother, M, sought to restrain F from having unsupervised access to A. X did not want the allegation disclosed to F.

26. X had medically unexplained symptoms and there was medical evidence that there was “a close temporal relationship between X’s reported experiences of abuse and her presentation with episodes of medically unexplained symptoms.”17 Most recently, X experienced episodes of physical illness at times had been life threatening.

27. A medical report stated that

At paras 38 and 39.

At para 51.

At para 52.

[2012] UKSC 60.

[2012] EWCA Civ 1204.

Para 6 of the Supreme Court decision.

i. disclosure would be “potentially detrimental to her health”.

ii. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would “put her at risk of further episodes of illness”18 iii. “being summoned to court is one step further than disclosure and would inevitably be immensely stressful and therefore carry the same risk of deterioration in her physical (and mental) health.”

28. It was claimed that disclosure would constitute inhuman and degrading treatment contrary to Article 3. Significantly, the reports and evidence did not allege any future risk to the life of X. As a result, Article 2 was not argued in the case.

29. Both the Court of Appeal and the Supreme Court ordered disclosure. The Supreme Court accepted that disclosure could amount to inhuman and degrading treatment.

But Baroness Hale stated:

“The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her. I conclude therefore, in agreement with the Court of Appeal, that to disclose these records to the parties in this case will not violate her rights under article 3 of the Convention.”19

30. It is important to note that in Re A there was no allegation of a physical threat emanating from the father, F, to X. X was alleging that the mere fact of disclosure to the father (even if X was not brought to court) was inhuman and degrading treatment.

Conclusion

At para 6(vi)(a).

At para 32.

31. It is respectfully submitted that these are the fundamental principles which underlie the balancing exercise which the Court undertakes:

i. The relevant principles apply to the rights of all those, in addition to the child, who would be adversely affected by disclosure or non-disclosure.

ii. The fundamental objective of the Court in every case is to strike a fair balance between the various rights and interests in the context of achieving a fair trial.

iii. It is an inevitable consequence of Article 6, but would be the same under the common law, that non-disclosure of relevant material is the exception, and should only be ordered where the case for doing so is compelling.

iv. A fair trial for the purposes of Article 6 may still be achieved without disclosure of every piece of relevant material.

v. While the focus in child proceedings is inevitably on the best interests of the child, there is, beyond those fundamental principles, no rigid universal starting point for carrying out the balancing exercise.

Sarah McKechnie BL

LEGAL SUBMISSIONS ON BEHALF OF THE SECOND-NAMED RESPONDENT:

-a

A. Preliminary Objection

1. It is respectfully submitted on behalf of the Second-Named Respondent that section 47 of the Child Care Act 1991 (“the 1991 Act”) does not provide for the remedy sought by the Applicant in these proceedings and the Court ought to dismiss the proceedings on this preliminary basis.

Scope of Section 47

2. Section 47 of the 1991 Act (as amended) states the following in its entirety:

Application for directions.

47. – Where a child is in the care of the Child and Family Agency, other than special care under Part IVA, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.

[Emphasis added]

3. The order being sought by the Applicant involves information and reporting which does not affect the welfare of the subject children on an ongoing basis, and as such is outside the scope of s. 47.

4. It is common in child care proceedings that the presiding Judge make a number of section 47 orders upon granting a Care Order under section 18 of the 1991 Act and indeed at other points during the proceedings. Orders of this type are necessary to ensure that the child’s welfare remains under the jurisdiction of the Court, even where lengthy orders are in place, and that the ultimate responsibility for care of the child is entrusted unambiguously to the Court.

5. The case of VQ v Horgan & Anor [2016] IEHC 631 provides both for a clarification of the extensive scope of s. 47 orders, as relied upon by the Applicant, but also as to the purpose of the section, which is to provide for the Court’s supervision of the Agency’s care for a child.

6. At paragraph 39 of that judgment, Baker J stated:

The District Court has an overall supervisory and directory jurisdiction in regard to the exercise by the CFA of its powers, and over the foster parents or other persons in whose care a child is placed. The case law has emphasised the far reaching and wide jurisdiction under s. 47, by which is vested in the District Court the power to make all decisions relating to the care and welfare of a child, subject only to the proviso that the court ought not interfere unless matters arise which require consideration of the welfare or interests of the child. The court will not generally make orders more properly characterised as day to day matters and thus cannot be said to exercise a role by which it interferes with reasonable and prudent decisions made by the CFA or the foster parents. The decision of the court may be required in matters where there is disagreement as to whether a particular course of action is in the interest of a child, or where the issue is one where it is difficult to assess where the bests interest of a child might lie.

[Emphasis added]

7. It is clear from the above that the section is limited by the orders addressing the welfare of the child, or children, specifically, rather than the section providing a broad power to make directions in relation to any matter arising in the proceedings.

8. The limits of section 47 are also considered by Hogan J in JG v Judge Staunton [2014] 1 IR 390 at paragraphs 28 – 30:

28. It is true that s. 47 is, as McCracken J. pointed in Eastern Health Board v.

McDonnell [1999] 1 I.R. 174, 184, "an all embracing and wide ranging provision." But the section is designed to give the District Court full authority to give directions to the HSE in all matters pertaining to the welfare of the child who is in care. Thus, for example, as happened in McDonnell itself, the HSE could lawfully be directed by means of a s. 47 order to prepare a care plan for the child which was to be reviewed a child psychiatrist.

29. Yet the s. 47 order must relate directly to the welfare of the child. The Oireachtas did not envisage that this jurisdiction could be used to impose obligations on third parties (even such as parents) to do certain things. Of course, removed from the general statutory context, it might be said that, for example, the child's welfare would be safeguarded if an abusive or neglectful parent were to be directed by court order to abstain from alcohol.

As we in this jurisdiction sadly know all too well, there is plainly a clear link between excess alcohol consumption on the part of parents and the welfare of children in general and, as a succession of writers from Joyce to McCourt have shown, such excess consumption has historically been responsible for much childhood misery. Yet the Oireachtas cannot be taken as having conferred a power to impose personal obligations of this kind on third parties simply because there might be a link between the performance of such obligations and the child's general welfare. The purely general language of both s. 19 and s. 47 provide altogether too slender a basis for that far-reaching conclusion so far as third parties are concerned.

30. Accordingly, for all the reasons I have already set out with respect to the s. 19 jurisdiction, the generality of the language contained in s. 47 cannot be invoked as to justify positive obligations of this personal kind in respect of persons other than the child itself. If there were to be such a power to impose personal obligations of this kind on parents and others in the interests of the child, very clear and express language would be required for this purpose. To my mind, neither s. 19 nor s. 47 of the 1991 Act enable the District Court to impose conditions of this kind on third parties. If the law here is considered to be unsatisfactory, this would be a matter of policy properly committed by Article 15.2.1 of the Constitution to the exclusive judgment of the Oireachtas.

[Emphasis added]

9. Arising from J.G., a set of principles is apparent which must be fulfilled before a s.

47 order may be properly granted by the Court:

a. The child must be presently in the care of the Agency;

b. The order must be concerning the child;

c. The order must be concerning the welfare of that child;

d. The order must be directed to the Agency, and be executable by the agency;

e. The order cannot be invoked to justify positive obligations of a personal kind in respect of persons other than the child.

10. In the present case it is respectfully submitted that the details of a parental capacity assessment concerning the Second Named Respondent is information which is patently not ‘concerning the welfare of the child’ on an ongoing basis where the children are in the care of the Agency. Furthermore, the parental capacity assessment has no bearing on the Agency’s care for the children. Finally, it is also submitted that disclosing the full report to the Applicant would have no bearing on the Agency’s care for the children in its care the subject of the present proceedings.

11. For these reasons, it is respectfully submitted that the appeal ought to be dismissed on this preliminary basis.

Purpose of the Parental Capacity Assessment

12. The parental capacity assessment sought by the Applicant is a deeply personal and private investigation of the Second Named Respondent’s neuropsychological and psychological health. It contains information of a deeply intimate nature on the Second Named Respondent’s mental health and wellbeing, and while the purpose of its completion was to establish her present capacity to care for the children the subject of the proceedings, it naturally includes information ancillary to the conclusions of the report.

13. The parental capacity assessment was carried out on and concerning the Second Named Respondent only, and therefore has no relevance to the Agency’s case as against the Applicant at all. It is accepted that if the Applicant and Second Named Respondent proposed to parent their children as a couple and contested the Agency’s care order applications on that basis, the Report would be of relevance to both parents such as to justify its release, but that is not the case here.

14. It is submitted that the Applicant would be provided with sufficient information to defend the s.18 proceedings as against him and cross-examine on the basis of the summary which it is proposed to provide him by the Agency.

15. While the s. 18 proceedings in train concern both the Applicant and the Second Named Respondent, in circumstances where the respondent parents are not together and there is no proposal for them to jointly parent the subject children it is submitted that the threshold required to be established by the Agency is in respect of each of the respondent parents. It would be hypothetically possible for two separate sets of proceedings to be run on a parallel basis concerning the respondent parents individually, however the cases are run jointly as a matter of practicality. The Applicant’s assertion that he is required to have sight of the parental capacity assessment in order to adequately prepare to meet the case as against the Second Named Respondent is incorrect. The burden of proof lies with the First Named Respondent only to establish the threshold as set out in s. 18 of the 1991 Act as against both respondent parents individually in these proceedings.

16. Finally, it is submitted that while the parental capacity assessment report was procured by the Agency, it was not carried out or authored by it. It is submitted that s. 47 directions may only be made of and concerning the Agency. The dicta of Hogan J in J.G. (cited above) at [30] apply:

To my mind, neither s. 19 nor s. 47 of the 1991 Act enable the District Court to impose conditions of this kind on third parties. If the law here is considered to be unsatisfactory, this would be a matter of policy properly committed by Article 15.2.1 of the Constitution to the exclusive judgment of the Oireachtas.

Section 27 and the principle of expressio unius est exclusio alterius

17. By way of contrast to the position regarding section 47 of the 1991 Act, Section

27 of the Act specifies that reports commissioned “on children” are to be disseminated to the legal representatives of the parties. The principle of expressio unius est exclusio alterius is applicable in this regard such that in expressing with clarity certain requirements in section 27 and not elsewhere, the intention of the Oireachtas may be readily deduced. Section 27 of the 1991 Act (as amended)

provides for the procurement and dissemination of reports by the court on questions affecting the welfare of the child, as follows:

Power to procure reports on children.

27. – (1) In any proceedings under Part IV, IVA (as amended by the Child Care (Amendment) Act 2011, or VI the court may, of its own motion or on the application of any party to the proceedings, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child.

(2) In deciding whether or not to request a report under subsection (1) the court shall have regard to the wishes of the parties before the court where ascertainable but shall not be bound by the said wishes.

(3) A copy of any report prepared under subsection (1) shall be made available to the counsel or solicitor, if any, representing each party in the proceedings, or, if any party is not so represented, to that party and may be received in evidence in the proceedings.

(4) Where any person prepares a report pursuant to a request under subsection (1), the fees and expenses of that person shall be paid by such party or parties to the proceedings as the court shall order.

(5) The court, if it thinks fit, or any party to the proceedings, may call the person making the report as a witness.”

[Emphasis added]

18. Section 27(3) makes clear that once a report is prepared under this section, it “shall” be made available to the legal representatives for the parties. The fact that this is expressed in such clear language in a section regarding reports on children illuminates the clear intention of the Oireachtas in this regard. In the absence of any corresponding section regarding reports that concern an individual respondent parent, it is submitted that this Honourable Court can properly conclude that there is no corresponding obligation to do so.

19. It is also worth noting that this sub-section expressly states that should the court decide to make a direction under its provisions, reporting will be provided to the counsel and solicitor of the parties only, and not to the parties themselves unless they are not represented. This provides another mechanism whereby sensitive and personal information may be disclosed to the parties’ legal representatives without risking the reporting being more widely disseminated.

20. While it is assumed that, given he is legally represented, there is no proposal that the Applicant himself would not be given the papers in the present proceedings, the case of MS v Gibbons [2007] 3 IR 785 must be noted as it makes clear that reports in in camera proceedings are not to be given directly to litigants, even where they are self-represented.

B. Infringement of the Second-Named Respondent’s Rights

21. Underpinning the arguments in the Applicant’s case there is an assertion that his rights to fair procedures must take priority over any rights of the Second Named Respondent. On the contrary, it is submitted that the Second Named Respondent’s rights to privacy and protection from harm are engaged by this case, such that in seeking to weight up those rights this Honourable Court ought to refuse the application.

22. It is conceded that DK v. PIK [2022] IECA 54 is binding authority on this Honourable Court to the extent that a court cannot have regard to evidence not generally available to the parties unless some compelling justification is provided for the Court to depart from that principle. It should firstly be observed that as DK v. PIK involved a judicial separation, the only parties to the case were the antagonists before the Court. There was no legitimate contradictor to any evidence proffered by either side except the other party to the case – this is not the case in the case in hand presently, where the Agency’s case to make out is as against both parents individually.

23. It is also submitted that there is compelling justification in this case to decline to share the report sought with the Applicant. The parental capacity assessment includes deeply private and personal information regarding the Second Named Respondent’s psychological health and wellbeing. In normal circumstances, in cases such as this, there is an element of mutual trust and good will between the respondent parents which might allow these details to be divulged to the Court, sitting in camera so as to protect the affected party from the wider dissemination of this information. In this case, however, there is no such mutual trust or good will, and the Second Named Respondent is legitimately concerned that the information contained in the report will be used against her by the Applicant.

24. In this regard, it must be noted that the relationship between the Applicant and the Second Named Respondent is such that Orders have been made under the Domestic Violence Act 2018 as against the Applicant in favour of the Second Named Respondent. Under the provisions of that Act substantial provisions are made to protect a victim from the undue influence of an alleged perpetrator, including in Section 16(2) which provides for protection from cross-examination by the respondent personally. That Act also provides for the offence of Coercive Control in Section 39(1) and (2). While it is not suggested that these sections are engaged at this juncture, it is submitted that these provisions demonstrate the concerns that may arise in difficult relationships such as that between the Respondent parents in these proceedings which the Act seeks to address.

25. It is submitted that by revealing the information contained in the parental capacity assessment is providing information to the Applicant which the Second Named Respondent fears, justifiably, could expose her to further difficulties necessitating orders under the 2018 Act.

26. The Applicant relies upon State (D and D) v. Groarke [1990] 1 IR 305 to the effect that both parents are entitled to reports or summaries of evidence to be given in the hearing. This case however is distinguishable for three significant reasons. First, that case involved Court Orders which were made in 1986, predating the current child care regime, and the Act of 1991. Secondly, in Groarke the parents were jointly represented and making a common case as against the Agency’s predecessor, whereas in this case the parents of the subject children are separately represented, and their cases are at odds with one another. Thirdly, as will be seen from the quote relied upon by the Applicant (at p. 310), and quoted below, the Supreme Court highlighted that a summary of evidence to be provided could suffice.

Furthermore, for a lawyer acting on behalf of the parents and therefore joining issue on the question of abuse, to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had, in good time before the trial, reports or summaries of the evidence which was to be given and, in addition, an examination of any video recording by him and by any medical witness he proposed to call. [Emphasis added]

27. The Applicant further relies upon Child and Family Agency v C [2015] IEDC 14 in justifying the need for the Applicant to have sight of the reporting involved in the present case. That case dealt with an altogether different arrangement of parties, where ‘C’, the respondent parent, requested and was granted an adjournment of a s. 18 hearing in order to examine evidence which directly concerned them, in the form of video evidence of the subject children making allegations against ‘C’. In this case, the evidence which it is sought to be shared does not concern the Applicant directly, and as such C can be readily distinguished. As a decision of the District Court, C is in any case not a binding

decision on this Honourable Court.

28. The Second Named Respondent asserts that her constitutional right to privacy is engaged in this appeal. In McGee v. Attorney General [1974] IR 284, the Supreme Court held that the right to privacy was universal and subject only to rare exceptions. It is conceded by the Second Named Respondent that in the context of s. 18 proceedings it is necessary for the Court to have sight of the parental capacity assessment if the Agency seeks to rely upon same to advance its case, but it is not so conceded in respect of the Applicant. It is also submitted that in circumstances such as this where the constitutional rights of the Second Named Respondent are engaged it is necessary for this Honourable Court to balance those rights in a manner that is proportionate and which does the least harm. Where an alternative exists to breaching the Second Named Respondent’s privacy rights, as in this case by means of providing a summary of the report, without undermining the Applicant’s fair procedures rights, it is respectfully submitted that that approach ought to be adopted.

29. Article 40.3.2 of the Constitution also provides for the right to protection of the person from harm. In this case it is submitted by the Second Named Respondent that sharing the information contained in the parental capacity assessment with the Applicant endangers her person and exposes her to harm, both immediate psychological harm and the risk of future harm in the form of coercive control and domestic violence.

30. It is therefore submitted that the rights of the Second Named Respondent would be prejudicially affected by the granting of the applicant’s motion, and that the Second Named Respondent’s fear of the effect that sharing the report with the Applicant represents a ‘compelling justification’ to depart from the general principle set out in DK v. PIK.

C. Best Interests of the Subject Children

31. Section 24(1) of the Act of 1991 requires a court to regard the best interests of the child as the paramount consideration.

32. In the present appeal, it is respectfully submitted that the sharing of the report in its entirety with the Applicant does not in substance engage the welfare of the children such as to necessitate its release. As the Agency’s obligation is to make its case as against both parents individually and establish the thresholds set out in s. 18 as against both parents individually, the fact of the Applicant having sight of the report regarding the Second Named Respondent would have no impact on the Agency’s or the Court’s management of the subject children’s care.

33. It is certainly the case that the children’s best interests would be served by the disclosure of the report should it contain evidence of relevance to the Applicant, such that he could mount his own rebuttal of the Agency’s evidence as against him. However, it is submitted that it does not, and at the very least, has no bearing on the best interest of the children in the context of the Agency’s case as against the Applicant.

34. Insofar as the the children’s welfare is engaged at all, it is submitted that their best interests would be not served by the disclosure of the report to the Applicant. It is submitted that sharing the parental capacity assessment with the Applicant would have a detrimental impact on the Second Named Respondent, which is likely to have negative consequences on her relationships with professionals and expose her to further difficulties in her already fractious relationship with the Applicant. Her trust and faith in the Agency, its servants or agents is naturally in a vulnerable position at present, and should the Agency be the cause of her having to divulge the information in the parental capacity assessment to the Applicant this may interfere with her constructive and positive engagement with the Agency on an ongoing basis. As the principle of family reunification remains a core aspiration of the 1991 Act, this detriment is significant.

35. It is submitted that insofar as this application engages the welfare of the subject children, their best interests are best served by protecting their mother from this intrusion on her rights to privacy and protection from the Applicant.

D. Conclusion

36. It is respectfully submitted that section 47 is not the appropriate basis upon which to bring this application and that the appeal ought to be dismissed on this preliminary basis.

37. In the alternative, this Honourable Court is urged to consider that the necessary balancing exercise of the asserted constitutional right of the Applicant to access the reporting is outweighed by the Second Named Respondent’s rights to privacy and protection from harm which are compelling justifications which justify the withholding of the report from the Applicant.

38. While it is submitted that the subject matter of this appeal does not substantively affect the welfare of the children, insofar as their welfare is engaged, it is submitted that their best interests tend towards the Court refusing the appeal on the grounds outlined above.

39. For these reasons, it is respectfully submitted that the Appeal ought to be refused.

Nóra Ní Loinsigh BL

10 March 2025

LEGAL SUBMISSIONS OF THE GUARDIAN AD LITEM ON BEHALF OF THE CHILDREN:

1. It is submitted that the fundamental concern of the guardian ad litem when considering for these children the issues raised in this Appeal is that relevant matters referable to their care circumstances would be progressed in the most expeditious manner. There has been a marked recent delay in moving towards longer term planning that is squarely not in the children’s best interests. The within application and the drift caused by waiting for the Appeal causes ongoing prejudice to the two subject children who urgently need the adults in their lives to progress with making crucial decisions in a timely fashion given that these very same decisions will shape the rest of their childhood.

2. That said, the within submissions attempt to set out a general overview of the relevant law that the court may be required to traverse, together with an outline of a solutionfocused pathway which the court could embark upon to weigh up the competing rights and arrive at a fair and balanced decision that places the welfare and best interests of the children at the centre of its inquiry.

A. Brief recitation of the facts:

3. M. S. was born on the 27th of August 2022 and is two and a half years of age. M. was made the subject of an interim care order under section 17 of the Child Care Act 1991 on the 22nd of September 2022 when she was not yet one month of age. Similarly, her little brother, E. S. (born on the 7th of June 2023) has been the subject of sequential and unbroken interim care orders since he was six weeks of age and since an emergency care order pursuant to section 13 of the 1991 Act had triggered his original reception into care on the 17th of July 2023.

4. In preparation for a full care order application, the Child and Family Agency commissioned a parental capacity assessment from a suitably appropriate service, Psychological Pathways. Dr William Coman and Ms Lynda Magill completed an assessment report which had been requested to assess Ms S.’s parental capacity in respect of M. and E. and to opine on whether the children could be placed in her care.

The report was completed in July 2024. All other parties to the imminent section 18 full care order application – the Child and Family Agency, Ms S. (as subject of the assessment) and the guardian ad litem – have received the assessment report. The report will form part of the evidence at the hearing. The witnesses who prepared the report will presumably be called to speak to the report. Mr M. has not seen the assessment report and The Child and Family Agency indicated that it is not their intention to share it with him in advance of the upcoming full care order hearing.

5. Following an exchange of correspondence between the Child and Family Agency and Mr M.’s legal advisors, an application was moved under section 47 of the Child Care Act 1991 seeking the direction of the court around the sharing of the report. There was discussion at that juncture around the potential of a redacted version of the report being circulated to Mr M. and his legal team. That has not as yet been circulated, if indeed it has been prepared.

6. The full care order was due to be heard on the 5th and 6th of December 2024. It did not proceed as the court did not have sufficient time to hear it. It was adjourned to a further listing on the 13th and 14th of February 2025, but these dates were also vacated due to the existence of the within Appeal being heard at Dublin Circuit Court. The District Court is now awaiting the outcome of the within Appeal before setting any more full care order hearing dates, thus preventing any long-term planning around their care being completed.

B. Whether there are grounds to withhold the assessment from the father:

7. Mr M.’s legal submissions correctly traverse analogous case law which outline the grave implications of a lack of fair procedures in the context of what is proposed by Mr M. to be a fully contested hearing.

8. In the context of proceedings under the Child Care Act 1991, though the proceedings are inquisitorial in nature, it has been clearly and unequivocally held by the High Court – later upheld in the Supreme Court – that the procedural rights of a mother (or by arguable extension a father) can be aligned to that of their child and that any incursion on the fair procedures’ rights in relation to that parent have a knock on effect on the child’s rights base.

9. In SMcG v Child and Family Agency (2015)(IEHC 733), it was noted by Ms. Justice Baker in the High Court as follows:

“I consider that the interests of the parents, or of an unmarried mother of children, while they may not always coincide with the interest of the children are to be considered as a factor which must be weighed in assessing the best interests and welfare of the children. Because the constitutional starting point recognises that a child's welfare is primarily to be found in the custody and company of his or her mother, in any decision to remove the child from that custody, or to deprive the mother of those rights of custody and company of a child, the court must recognise and respect the symbiotic relationship between mother and child. To argue that the interests of the children are separate or distinct from, or in some way constitutionally prior to, those of the mother is to fail to recognise that constitutionally established nexus” (Underlining added for emphasis)

10. In England, Lord Thorpe set out the general legal principles around questions of disclosure along the lines of the questions raised herein. In Re M (disclosure) (1998) 2 FLR 1028, he listed the following as being pertinent:

(a) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a

decision adverse to that party.

(b) The court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(c) If it would the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interests of the child and having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(d) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration and its strength in the circumstances of the case, against the interest of the parent or other party and having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of material to the issues in the case.

(e) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child and should order non-disclosure only when the case for doing so is compelling.

11. Mr. Justice Clarke in AP v Minister for Justice and Equality (2019)(3 I.R. 317)

discussed the importance of transparency - particularly in public law disputes. That case referred to a challenge to the decision of the Minister refusing naturalisation wherein information was relied upon for the decision but was not communicated to the applicant owing to a (perfectly valid) claim of privilege. Mr Justice Clarke noted at paras 4.3 and 4.4 of his judgment:

“…it is also clear that a person who may potentially be directly and adversely affected by a public law decision is entitled to be heard in the decision-making process and, in that context, will ordinarily be entitled to be informed of any material, evidence or issues which it might be said could adversely impact on their interests in the decision-making process. See, inter alia, the judgments of this Court in State (Gleeson) v. Minister for Defence [1976] I.R. 280, Kiely v. Minister for Social Welfare [1977] I.R. 267 and State (Williams) v. Army Pensions Board [1983] I.R.

308.

The entitlement to know the case against you is itself a fundamental part of the right to be heard, for the right to be heard would be of little value if the person concerned did not know the issues which might adversely affect their interests in the relevant

decision-making process.”

12. It is noted that the AP case was followed in the decision in DK vs PIK (2022) (IECA 54). This ruling of Collins J. in the Court of Appeal (elaborated upon in much more detail in the Applicant’s submissions) seems to set the bar very high in terms of being able to successfully persuade a court that in requiring a person to run an Appeal, that that same person could not have sight of material in advance that was to be clearly relied upon by the trial judge. It was noted therein that this would be fundamentally unjust and contrary to the basic ground rules of the administration of justice under the Constitution.

13. The decided case law therefore since the seminal case of The State (D&D) v Groarke (1990)(1 I.R. 305) seems to be strident in terms of there needing to be an extreme justification for any departure from the compliance with procedural rights in cases involving persons who may be adversely affected by the failure to ensure these fair procedures are present and followed.

C. Breadth and extent of section 47 and whether the court has jurisdiction herein:

14. Section 47 of the Childcare Act 1991 provides:

Where a child is in the care of the health board, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.

15. Section 47 should be explored in tandem with the clear intention of section 24 of the 1991 Childcare Act. The principles underpinning section 24 was discussed in the seminal case of Eastern Health Board –v- McDonnell (1999)(1 I.R.74). Therein, McCracken J. crystallised the unqualified obligation on the Court (under section 24), in relation to any proceedings involving the care and protection of a child, to have regard to the welfare of the child as the first and paramount consideration. Section 24, together with section 47 is therefore acknowledged to place more power in the Court rather than the Applicant (CFA), whose duties and obligations are provided for under section 3 of the Act.

16. McDonnell was referred to in Western Health Board v KM (2002)(4 I.R. 493)

wherein Ms. Justice McGuinness noted as follows with reference to McDonnell:

“In that case, the learned High Court judge considered whether the District Court judge in question had the power under Section 47 to make wide ranging and detailed orders stretching to the future in regard to the Health Board's "care plan" for a child. McCracken J. accepted that the judge had such power. In construing Section 47 McCracken J. stated (at page 184 of the report):

"In my view Section 47 is an all embracing and wide-ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court. It should be noted that it is contained in part of the Act dealing with "Children in the Care of Health Boards" and is not qualified in any way. I think the only reasonable interpretation of Section 47 is that it is intended to give the overall control of children in care to the District Court.”

17. It is submitted therefore, that the intention of the Childcare Act (1991) is not to give absolute control of the conduct and running of the proceedings to the Child and Family Agency, but to retain ultimate control in the hands of the District Court.

18. The interplay of any section 47 direction with the welfare of the child is central to the

decision of Ms Justice Baker in VQ –v- District Judge Rosemary Horgan (2016 IEHC 631). The learned judge ultimately found that a District Court is “vested with the jurisdiction to make orders under s. 47 for the welfare of the child taking into account the individual circumstances of a case”.

19. In that case, the court was asked to quash a decision of the President of the District Court refusing an application under section 47 of the 1991 Child Care Act seeking directions of the court on a matter relating to the welfare of a child in care. The foster carers for the child had brought an application asking the court to re-visit a refusal in the District Court to order the allocation of resources in a state dental scheme to a child in their foster care so that he could get braces.

20. The CFA noted that there should be sufficient monies in the foster care allowance for such an eventuality and that, in any event, the court had no jurisdiction to meddle in the allocation of State resources. The District Court sided reluctantly with that position and seemed to note that her hands were tied in attempting to revisit the refusal of the CFA on the basis of the separation of powers argument.

21. Ms. Justice Baker disagreed and held that the judge in the lower court was led into error by submissions made on behalf of the CFA at the District Court hearing apparently requiring her to engage solely with the question of interference with the separation of powers. She noted the stated considerations of the CFA (i.e. a potential floodgates approach for other children in care looking for privately funded orthodontic treatment), but held that:

“this was not a concern of the District Court. It was not part of the application under section 47 and the President of the District Court was competent in my view to give a direction on the matters raised before her without making any observations, rulings or findings in relation to the funding of orthodontic treatment for children in care in general”

22. She importantly went on later to state that:

“the role envisaged by s47, as interpreted by the authorities, means that the District Court may make a decision that requires the CFA to expend money in the individual circumstances of a case, when all relevant factors are taken into account. The parent of a child will often be met with such considerations and the court has been given the power under s47 to make a decision of the type that comes to be made by a parent in choosing how to allocate financial resources.

23. At paragraph 57, the learned judge stated as follows:

“What was asked of the President of the District Court in the decision under review was that she would make a determination with regard to the welfare and needs of an individual child in the circumstances before her. She was not asked to direct the policy of the State with regard to the provision of state funded orthodontic treatment, nor was she asked to direct that the CFA would always fund such treatment for children in State care. She was asked a question relating to the individual interests of a child, whether the treatment was routine, anticipated, or discretionary. (Underlining added for emphasis)

24. It is submitted that this is exactly what the court should be engaged with on the facts of this particular question. The court will need to consider whether the direction being sought is centrally germane or relevant to the welfare of the children M. and E. S.?

Will it be in the furtherance of their welfare rights? It is submitted that the court is mandated to carry out an investigation into the specific circumstances of M. and E.

and if the direction vindicates and progresses their best interests and welfare rights as children in care of the CFA, about whom decision-making around their care is ultimately vested in the District Court, then it is a direction that can, and should, be given.

25. However, on the other hand it does beg the question as to upon whom the direction confers a benefit? Can it really be considered to be in the welfare of the children herein? Is section 47 even the correct vehicle for the enforcement of this particular obligation to fairly and transparently share the parental capacity assessment with a person within public law proceedings who will be adversely affected by the nondisclosure of same?

26. Once again, one can arguably come back to the dicta of Ms Justice Baker in SMcG previously mentioned. If the procedural rights of the parent is adversely affected this might correlate to a mirror prejudice upon their child.

D. The power of the District Court (or the Circuit Court on Appeal from the District Court to make directions under section 47 that meets the justice of the case and balances the rights of all parties:

27. As previously outlined, section 47 has a very wide construction and also permits the court to make a direction (or directions) of its own motion that will further the welfare interests of the child or children under its remit through the overarching prism of section 24 commanding that the welfare of the child be the paramount consideration.

In relation to disclosure of documents, it is submitted that certain guidance can be gleaned from Mr. Justice Barr’s oft-quoted judgment in Eastern Health Board vs Fitness to Practice Committee (1998)(3 I.R. 399).

28. Though that case specifically related to the lifting of the in-camera rule in certain circumstances, the principles distilled therein by Mr Justice Barr can be instructive. At principle 10 of the non-exhaustive list of principles that might be taken into account by a court considering an application to lift the said rule, he noted as follows:

“If justice requires disclosure of information protected by the 'in camera' rule, the court should take all reasonable steps to protect the interest of minors and others who are intended to have the benefit of the rule in the given case. The court has power, as an incidence of its discretion to permit disclosure of protected information, to impose such terms in that regard as it deems necessary in the circumstances.” (underlining added for emphasis)

29. In these circumstances, it is submitted that there exists a perfectly viable facility under the auspices of section 47 of the 1991 Act for the court to inject a degree of proportionality into any order around the sharing of an parental capacity assessment and to exercise a fair balance of rights as and between the parties by imposing a restriction or suite of restrictions on the sharing of the assessment. This could still serve to meet the father’s need to fully and comprehensively understand the case he is coming to meet. It is submitted that rational and reasonable redaction of certain areas and/or summarisation of any of the content adjudged by opponents of the application to be controversial may also, as a corollary, assuage come of the concerns of those same two parties opposing the father’s appeal.

E. Conclusion:

30. It is submitted on behalf of the guardian ad litem that, in the context of the parameters of her role, she cannot and should not adopt a particularly partisan position either way in the context of the ingredients of this application and should only direct her legal advisors to briefly advise on the legal underpinning for the careful balance of rights the court has to consider.

31. However, it is nevertheless submitted that the following is the core position advanced on the children’s behalf through their court appointed guardian ad litem:

(a) Any party to the proceedings should be afforded the expectation of the enjoyment of fair procedures. This is all the more compelling when one considers the gravity of the orders being sought under section 18 of the 1991 Act and indeed the stated opposition to said orders being advanced by the party seeking sight of a document upon which a portion of the evidence base for the order will presumably be predicated.

(b) The affidavit and the legal submissions of the Applicant do not necessarily elucidate a clear welfare-based rationale for the application that relates specifically to the children. No particular prejudice or adverse impact on the children for the failure to share the assessment is made out with any real specificity in the documents.

(c) However, if a child’s rights can be considered at times to be aligned with that of their parent, there could be an argument advanced that the simple question of compliance with procedural rights may be entirely consistent with the promotion of these children’s welfare rights and it may therefore be necessary for their father to have the full battery of fair procedures’ protections in that regard.

(d) In the court’s inquiry around the Appeal and the balance of rights the court has to contemplate, the court may well be persuaded by evidence or submissions of the mother (or the Agency) around a particular prejudice or set of prejudices that may be occasioned to the mother (by the sharing of the report) such that it falls within a category of exceptional circumstances that deviate from the usual practice of full transparency.

(e) In such a case, section 47 affords a wide discretion to the court to manage the disclosure by way of redaction or summarisation which may meet the justice of the case and which could provide a middle ground that will satisfy all parties. In this way, the mother’s rights are protected at the same time as allowing the father to robustly and informatively test the case he is coming to meet.

(f) Either way, the ongoing delays in the case and the fact that the children have had to miss two scheduled full care order hearing dates so far is something that indeed impacts adversely on their best welfare interests. It is the guardian’s position that their primary welfare need (outside of the distraction of the within Appeal) is to have a final decision made about their future such that either the professionals tasked with their care if the order were to be granted, or their parent or parents in the context of a refusal of a full care order application, can progress to making longer term plans about them going forward.

Donal Ó Muircheartaigh BL

____________________ Seona Ní Mhurchú Solicitor Pól Ó Murchú Solicitors,

15 Upper Ormond Quay, Dublin 7 11th of March 2025

7. Decision: The court agrees that the following issues arise in this matter:

a. Whether this court has jurisdiction to make the direction sought.

b. Whether it is in the children's best interest that the direction be made.

c. Whether the appellant’s rights are infringed by withholding the report.

d. The Court agrees with the submission made on behalf of the guardian ad litem for the children, that the fundamental concern when considering the issues raised in this appeal, is that matters referable to the children’s care circumstances, are progressed in the most expeditious manner.

8. On the question of jurisdiction, it is submitted on behalf of the appellant that the court has the necessary jurisdiction pursuant to section 47 of the 1991 Act which includes an application for directions and provides as follows: “47. Where a child is in the care of the Child and Family Agency, other than special care under part IV A, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.”

9. On behalf of the mother, it was submitted that this section does not apply as the report itself does not affect the welfare of the children on an ongoing basis. The Court disagrees with this proposition, in the sense that the report, concerning the mother’s capacity to parent, is central to the issue of the children’s parenting, particularly as the mother is seeking a return of the children into her care and as such the report is connected to an important aspect of the children’s welfare. It is further submitted that this section’s purpose is to provide for the Court’s supervision of the Agency’s care for a child. The Court is of the opinion that given the mother’s application is to seek a return of the children into her care, the contents of the report are likely to form a central part of the hearing in the circumstances of this case.

10. On behalf of the appellant father, it was submitted that this text confers a broad and comprehensive jurisdiction. This court notes the determination made by McCracken J in Eastern Health Board v McDonnell [1999] 1 IR 174, where he says: “Section 47 gives an extremely wide jurisdiction” and is “an all embracing and wideranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court.”

11. The Court also relies on the decision in Western Health Board v K.M. [2001] 1 IR 729 in which Finnegan J, in a judgment upheld on appeal by the Supreme Court in Western Health Board v K.M. [2002] 2 IR 493 said: “This Section is couched in the widest possible terms and I can find nothing in the Act of 1991 insofar as the same deals with the powers, functions and duties of the District Court to suggest that a restrictive interpretation of Section 47 is appropriate …… Section 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act of 1991 as a whole and the objectives set out in Section 24 of the Act of 1991.”

12. The court agrees that the extensive jurisdiction of the court is engaged when child welfare issues arise. Reference is made to the decision of Baker J in VQ v Horgan & another [2016] IEHC 631 in which she emphasised the “far reaching and wide jurisdiction” of section 47 which occurs when: “Matters arise which require consideration of the welfare or interests of the child.”

13. As stated in Eastern Health Board v McDonnell [1999] 1 IR 174 where matters arise “which could reasonably be considered adversely to affect the welfare of the child, and only in such circumstances, should the District Court interfere.”

14. The court agrees that given the background to this appeal, that is, where there is an impending hearing for section 18 care orders. The conduct of that hearing affects the welfare and interests of the children as their lives will be changed by the outcome of that case. As such this court agrees that there is jurisdiction on the part of the District Court to make such directions as it deems appropriate in all matters pertaining to the welfare of the child who is in care, including a direction that a report such as is requested in the instant case is shared.

15. The next question which arises is whether it is in the best interest of the children that the report be shared. Section 24(1) of the Act requires a court to “regard the best interests of the child as the paramount consideration.” The non-exhaustive list of factors provided is not of particular relevance to this dispute however the question of the conduct of the section 18 hearing itself does arise. Section 24(2) permits a court to have regard to “all of the factors or circumstances that it considers relevant.” In this respect taking of a child into care is an “extreme measure” of “very last resort.”

See Achim v. Romania (Application no. 45959/11). The court agrees that it is clearly in the children's best interest to ensure, if section 18 orders are made, that this is the right decision. Fundamental to this is ensuring that parents’ procedural rights are vindicated to allow them to fully and robustly test the evidence. As such, the court agrees that requiring the appellant to engage in a section 18 hearing without evidence, which is available to other parties and to the court, does not accord with the best interests and welfare of the children the subject of the proceedings as it impermissibly limits their rights and the rights of the applicant parent.

16. The court also relies on the decision of the Supreme Court in the State (D. and D.) v Groarke [1990] 1 IR 305 in the context of childcare proceedings: “For a lawyer acting on behalf of the parents and therefore joining issue on the question of abuse, to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had, in good time before the trial, reports or summaries of the evidence which was to be given...”

17. The court considers that this passage indicates that the appellant’s legal advisors are entitled to the report. The court agrees that as the appellant is contesting the length of the care orders sought and Ms. E. S’s request to care for the children herself, he cannot adequately do so without sight of the relevant evidence. This is even more so where the authors of the report will be called as witnesses and the appellant’s legal advisors will not be in a fully prepared position to cross-examine them in the absence of the report.

18. It was further submitted on behalf of the mother that the report sought by the appellant is a deeply personal and private investigation of the mother’s psychological health and that it contains information of a personal nature. It is further submitted that the mother enjoys a right to protection from harm and that there were previously domestic violence orders against the appellant. It is stated that the report includes information that is ancillary to its conclusions. It is submitted that the report is of no relevance to the CFA’s case against the appellant, particularly as he does not seek to parent the children jointly with the mother. While the Court is mindful of the mother’s rights to privacy and protection, her autonomy and indeed her dignity as a person, particularly in light of the recent Supreme Court decision in the DPP v A.M [2025] IESC 16, the Court is of the opinion that this case can be distinguished from the facts in that case, which pertained to provision of counselling notes in the context of a criminal trial. In this case, the Court’s obligation is to place the best interests and welfare of the children as the paramount consideration. In doing so, the Court must not disregard the mother’s privacy and protection rights and as such, this Court is of the opinion that the report should be redacted to exclude matters which are ancillary to the findings of the report.

19. It was further submitted on behalf of the mother that the report while procured by the CFA was not carried out or authored by it. It is submitted that section 47 directions may only be made of and concerning the CFA and reliance is placed on the dicta of Hogan J in J.G. and Others v Judge Kevin Staunton and Others [2013] IEHC 533 in this regard, such that “neither s 19 nor s 47 of the 1991 Act enable the District Court to impose conditions of this kind on third parties.” This Court is of the opinion that as the report is within the control of the CFA, it is open to the Court to direct that a redacted version of same is furnished to the appellant’s legal advisors, in these circumstances, where doing so accords with the best interests and welfare of the children, and indeed the overall fairness of the process. The Court recognises that the redacted report and it’s contents, given the in-camera nature of these proceedings, are not to be given directly to the litigants, nor is the content of such reports to be divulged to any third party, nor indeed to the children themselves.

20. It is further submitted on behalf of the mother that section 27 makes provision for the power to procure reports on children and as such the principle of expressio unius est exclusio alterius applies. That is section 47 is not therefore available as a matter of legislative interpretation for the purpose sought by the appellant as section 27 deals only with reports on children, and there is no corresponding section regarding reports that concern an individual parent. As such, it is submitted that there is no obligation on the Court to direct provision of this report to the appellant, as no section of the Act provides for doing so. The Court is of the opinion that the provisions of section 47 are broad enough to encompass provision of the redacted report in circumstances where doing so accords with the best interests and welfare of the children, and further where doing so accords with procedural fairness in the conduct of a childcare hearing.

For the avoidance of doubt, the corollary would also apply in favour of the mother, in respect of any parental capacity report prepared in respect of the father, a redacted version of same should also be provided to the mother’s legal advisors.

21. The court also refers to the decision in Child and Family Agency v C [2015] IEDC 14 where a section 18 hearing was adjourned to permit a respondent parent to be provided with recordings of interviews with their child. In other words, the hearing could not proceed without the respondent parent being given access to all of the evidence. The court stated in the course of that decision: “The principal basis of the second adjournment application was that in the interests of fair procedures and in accordance with the State (D. and D.) v Groarke [1990] 1 IR 305, C required sight of recordings of interviews of Child A by the Gardaí and other agencies, which had not up to that date been made available to C. The court granted the second adjournment application. The court then set new hearing dates for the section 18 proceedings…”

22. Similarly, the position is supported by D.K. v P.I.K. [2022] IECA 54, a case which concerned a judicial separation where the High Court refused the mother's application to relocate the children in circumstances where the judge had met the children after the hearing but before issuing a decision. The mother appealed the order and requested the digital audio recording of that meeting. This request was refused by the High Court and appealed to the Court of Appeal. State (D. and D.) v Groarke [1990]

1 IR 305 was cited by the mother as authority for the proposition that fair procedures required that all evidence relied on by a court be known and available to the parties.

The Court of Appeal held the mother was entitled to see the transcript in issue. Given its high degree of relevance to the instant appeal, this judgment is quoted below: “52. The principle that a litigant ‘should be able to see and hear all the evidence which is seen and heard by a court determining his case’ has been said to represent an irreducible minimum requirement of an ordinary civil trial.’ (Al Rawi and others (Respondents) v The Security Service and others (Appellants) [2010] EWCA Civ 482, [2012] 1 AC 531, paragraph 30)

23. In A.P v Minister for Justice and Equality [2019] IESC 47, [2019] 3 IR 317, Clarke CJ noted that “it does not appear”.. ‘there is any provision in Irish law which would allow a court, making a substantive decision on the merits, to have regard to information which is not available to both sides of the case’...”. In the following paragraph he expressed the view that “in judicial proceedings, a court cannot have regard in coming to its ultimate conclusion on the merits, to materials or evidence which were not generally available to the parties….”.

24. The Court also refers to the judgment of O’Donnell J in A.P. which is to the same effect: “it had not been sought in Irish law to provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties” ….”the law, through the medium of decided cases, sought a variety of ad hoc measures to try to achieve a difficult balance between competing interests, while maintaining the principle that in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.”

25. According to O’Donnell J, it must be recognised that “fundamental issues are involved if it is contended that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld.”

26. As such, A.P is authority for the “principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties.” That is so even in extreme cases, where the security interests of the state are at issue.

27. The Court must consider therefore whether family law proceedings, or at least proceedings involving children, are in a different category when addressing the questions of the basic ground rules for constitutional adjudication. In this regard the court refers to the decision of the Supreme Court and O'Malley J in A.C. & Others v Cork University Hospital & Others [2019] IESC 73, [2020] 2 IR 38, paragraph 378: “Even if… custody/ access disputes under the Act ought properly to be treated as being akin to child protection or wardship proceedings, that would not lead to any dilution of the principles articulated in A.P. The principle that a court cannot, in making a substantive

decision on the merits in adversarial proceedings, have regard to information that is not available to both parties ‘is not… to be seen as weakened by the fact that the process in question is inquisitorial rather than adversarial in nature’.”

28. In A.C. O’Malley J concluded that the circumstances in which the order taking A.C.

into wardship had been made breached her constitutional right to fair procedures. One of the grounds for that conclusion was that the order has been made on the basis of a report of the medical visitor, and an affidavit from the HSE, that had not been disclosed to A.C.

29. As such this Court agrees that the principles set out in A.P. apply to these proceedings. Further the court agrees that it may be appropriate that some departure from those principles can be justified in the particular circumstances of any case.

Certainly, this court agrees that any departure from the fundamental principle of disclosure in this context would require compelling justification. The second named respondent has submitted that furnishing of the report to the appellant involves a breach of her rights of privacy in a context where she is no longer in a relationship with the father of her children. The court notes that there had previously been domestic violence proceedings however there are no domestic violence orders remaining in place at this time. The Court is of the opinion that there is no compelling justification to depart from the principle of disclosure in this case, provided the disclosure is limited to furnishing a redacted report, such that matters ancillary to the report’s findings are excluded, in the interests of preserving the mother’s rights of privacy and protection. Further, the Court directs that the redacted report is furnished only to the appellant’s legal advisors, and same, is to be used only for the purpose of the childcare proceedings. In making this decision, the Court relies on the decision of the Supreme Court in McGee v AG [1974] IR 284, given the engagement of the mother’s Constitutional rights of privacy and protection, and the necessity of balancing those rights, in a manner which is proportionate and does the least harm without undermining the appellant’s fair procedure rights.

30. The court agrees that Article 6(1) of the ECHR supports the conclusion, given the

decision in the European Court of Human Rights in McMichael v The United Kingdom (1995) 20 EHRR 205. That decision also suggests that the non-disclosure of material in proceedings involving custody/ access may amount to a breach of the rights of a parent under Article 8. The court also agrees that it’s not necessary to consider the convention further given the conclusions reached on the basis of Irish law.

31. As such, this court agrees that a litigant seeing and hearing all the evidence seen and heard by a court is an “irreducible minimum requirement” of an ordinary civil trial, provided ancillary matters are excluded. A court cannot have regard, in coming to its ultimate conclusion on the merits, to materials and evidence which were not generally available to the parties. No provision in Irish law allows for this. Irish law does not provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties. “There are, to put it at its lowest, serious doubts whether it would be permissible to provide that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party.” In any court decision, the administration of justice must be based on evidence which is available to the parties.

This is so even in extreme cases. These principles apply across all courts involved in the administration of justice under the Constitution and accordingly required adherence to the “basic ground rules of constitutional adjudication.” The court agrees that where a case involves childcare matters, or is inquisitorial rather than adversarial in nature, this would not lead to any dilution of these principles, save that regard must also be had to the mother’s rights of privacy and protection. The court agrees that compelling justification would be required prior to departing from these principles.

While the court is mindful of the issues raised on behalf of the second named respondent, given the seriousness of the orders sought in relation to the children, the necessity for a fair trial and fair conduct of proceedings must be balanced against the second named respondent’s entitlement to privacy over the report, such that matters ancillary to the report’s findings are excluded, and such that a redacted version of the report is furnished to the appellant’s legal advisors.

32. The court agrees that even if there is past wrongdoing on the part of the appellant, it is not something which can be safely relied upon to deprive them of their procedural rights, their rights to natural and constitutional justice, in separate court proceedings.

The court agrees that if a domestic violence order is in place, it was the appropriate response to any such behaviour not the withholding of relevant evidence in these proceedings. The court agrees that there is no evidence before this court that Ms. E.

S’s vulnerability would be exacerbated by the sharing of the redacted report, bearing in mind that the redacted report is only to be shared with the legal advisors and not with the parties themselves, in the usual way. In directing release of the redacted report to the appellant’s legal advisors, this court further directs that same should only be used by the appellant and his legal advisors for the purpose of the childcare proceedings. The parties are reminded of the existence of the in-camera rule and the fact that these papers and the contents of them are not to be shared with any third party or person not connected to the childcare proceedings. The court further directs that the children are not to be informed of any matters contained in the redacted report.

33. The court is of the opinion that a redacted report, where matters ancillary to the report’s findings are excluded, is sufficient in the circumstances given the seriousness of the orders sought by the Child and Family Agency. While the court is sympathetic to the second named respondent and her desire to maintain privacy over the entirety of the report in the face of her estranged partner, the requirements that the court take the best interests and welfare of the children as the paramount consideration in all proceedings pertaining to their welfare and the requirement of transparency and fair procedures in the conduct of such proceedings, necessitates disclosure of the redacted report, in the circumstances of this case.

Appearances Seán Beatty BL instructed by Joe Coonan Solicitors for the applicant appellant. Sarah McKechnie BL instructed by Mason Hayes & Curran for the Child and Family Agency. Nóra Ní Loinsigh BL instructed by Legal Aid Board (Chancery Street) for the second named respondent. Donal O’ J Ó Muircheartaigh BL instructed by Pol O'Murchu Solicitors for the Guardian ad Litem.