Court dismisses objection to admit hearsay evidence from absent sister alleging father's past violence.

[2011] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

DC & BB

RESPONDENT

CHILD CARE ACT, 1991— SECTION 24

IN THE MATTER OF CHILD 1

18 October 2011

Preliminary issue

1. What is at issue at this early stage of the proceedings is whether social worker evidence, and specifically the evidence of Social

Worker 1, regarding allegations made by X should be admitted by the Court where X will not be in Court to give direct evidence.

2. X is not a party to these proceedings and is not the subject of these proceedings. She is the sister of the respondent father.

When both she and the respondent father were minors, she made a number of serious allegations against the respondent father,

which said allegations are reported in social work reports prepared by the applicants, the existence of which allegations have been

reported by the applicants to professionals carrying out assessments in the case including assessments pertinent to the respondent

father’s suitability and/or capacity to care for the subject child.

3. It appears that at all times since the commencement of these proceedings, the applicants were aware of historic allegations, in

particular of violence, against the respondent father by various members of his family including X. Nevertheless, in the course of

dealing with this case, serious consideration was being given to father becoming a primary carer for the subject child (Child 1).

Psychological assessment of the respondent father indicated that he was at low risk of perpetrating violence against his daughter, in

light of the allegations known to the psychologist at the date of that assessment.

4. In or around January 2011, the applicants became aware of further allegations against the respondent father, which were

reportedly recorded in what are referred to as the “area eight” files. These allegations were primarily made by X. These allegations

have consistently been denied by the respondent father. There have been a number of court orders regarding disclosure, interviewing

with regard to such allegations, and the furnishing of such information to experts for assessment.

5. Prior to commencement of the full hearing of these proceedings, it was indicated by the respondent father that he would raise an

objection to the admission of hearsay evidence of the allegations made by X. The applicants and the other parties to the proceedings

were on notice of this objection, and legal submissions have been furnished by the applicants and both respondents. Counsel for

Guardian ad litem has made oral submissions.

6. X is now an adult aged 27 years. It has been established in evidence that she attended at a meeting with the applicants in

February 2011 and that she indicated at that meeting that she might be willing to give evidence in these proceedings. At that

meeting she stated to the applicants that she suffered from depression and that she had highs and lows, and that she was taking

medication. It has been stated by the applicants that this meeting was an “introductory” meeting. It has been accepted by the

applicants that this meeting was set up by them in the context of these proceedings i.e. they would not have had any reason to

meet with X were it not for the existence of these proceedings. The applicants state that at that meeting it was arranged that there

would be further telephone contact between them and X. The applicants stated that they have made several attempts to telephone

X, and that they wrote to the address provided by her. The applicants also state that they called to X’s address on 11 October 2011,

and discovered that the house was vacant and for sale. The applicants accepted that X had not been issued with a subpoena. The

applicants stated that they had no medical evidence regarding her mental state.

7. In proceedings pursuant to section 18 of the Act, the Court is clearly conducting an inquiry. Section 24 of the Act provides that:

“[i]n any proceedings before a court under this Act in relation to the care and protection of a child, the court,

having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child”.

8. In EHB v MK [1999] 2 IR 99, the Supreme Court dealt with the issue of hearsay evidence in inquiry proceedings. The judgment

Denham J contains the following passages (pages 108 – 115):

“First Issue

The first issue for consideration is whether hearsay evidence is admissible in wardship proceedings. There are a

number of important relevant factors when considering the rule against the use of hearsay evidence and wardship

proceedings.

Factors:

1. The hearsay rule

The rule against the use of hearsay evidence was developed by judges through common law. It is a rule developed

to protect fair trial process. In general, assertions made by persons who are not called as witnesses are inadmissible

to prove the truth of the matters stated therein. Such assertions are excluded for a number of reasons including

such matters as that the author was not on oath when he made it; it was not made in a public place but rather in

private; the court had no opportunity of observing his demeanour when making the assertion; and, there was no

opportunity to test the assertion on cross-examination. However, there are many exceptions to this rule. Initially

exceptions were made by the courts in common law. The fact that new exceptions have been made in recent times

by the legislature to extend the list of exceptions to the rule does not per se exclude the jurisdiction of the courts.

The hearsay rule and its exceptions are not set in stone. The law continues to evolve. Some of the recent evolution

has been by way of common law, by judges. For example, in The People (Director of Public Prosecutions) v.

McGinley [1998] 2 I.R. 404 at p. 414 Keane J. in holding that hearsay evidence may be accepted in bail applications

stated:-

‘Where there is evidence which indicates as a matter of probability that the applicant, if granted bail,

will not stand his trial or will interfere with witnesses, the right to liberty must yield to the public

interest in the administration of justice. It is in that context that hearsay evidence may become

admissible, where the court hearing the application is satisfied that there are sufficient grounds for not

requiring the witness to give viva voce evidence. In such a case, it would be for the court to consider

what weight should be given to the evidence, having regard to the fact that the author of the

statement had not been produced and to any other relevant circumstances which arose in the

particular case.’

In McKeon v. Director of Public Prosecutions (Unreported, Supreme Court, 12th October, 1995) hearsay evidence in

the form of confidential information furnished to the Garda Siochana was admitted in a bail application, illustrating a

balancing in favour of the public interest requirement that the anonymity of police informers should be preserved.

Reference is made in these cases to two types of evidence in bail applications. On the one hand is evidence relating

to routine administrative matters. On the other hand are critical issues to which there is strong opposition by a

party to the use of hearsay evidence.

This dichotomy between relatively unimportant typically administrative matters and important issues in conflict was

also pointed out by Lord Devlin in In re K. (Infants) [1965] A.C. 201 at pp. 242 and 243, where the issue of hearsay

evidence in wardship proceedings was before the Privy Council. Lord Devlin stated:-

‘turn now to consider the objection on the ground of hearsay. Here the test of convenience is the right

one. It is agreed that the practice always has been to admit hearsay. None of the Lord Justices in the

Court of Appeal disapproved of this practice nor were they invited to do so. Reports on such matters as

the conditions prevailing at the school to which it is proposed to send an infant or of a house in which

he is to reside may often be of great assistance and I think that it might often adversely affect the

interests of the infant if a judge were to be debarred from acting upon them. A judge in chambers is, of

course, quite capable of giving hearsay no more than its proper weight. An inflexible rule against

hearsay is quite unsuited to the exercise of a paternal and administrative jurisdiction. The jurisdiction

itself is more ancient than the rule against hearsay and I see no reason why that rule should now be

introduced into it.

I agree that the liberty to tender hearsay evidence could be abused. I cannot imagine that any judge

would allow a grave allegation against a parent to be proved solely by hearsay, at any rate in a case in

which direct evidence could be produced. I agree that in such a case if a lot of hearsay material was

produced a party might be embarrassed by not knowing what steps he ought to take to meet it. But I

think that it is well within the inherent powers of a judge exercising this sort of jurisdiction to deal with

such a situation. He can, in a proper case, indicate in advance that he will pay no attention whatever

to grave allegations that are based only on hearsay. I do not think that the possibility of abuse should

be allowed to outweigh the benefits of continuing the existing practice.’

Lord Devlin draws a distinction between administrative matters and a situation where there is a grave allegation

against a parent. In these obiter dicta of 1965, before the modern avalanche of child sexual abuse cases came

before the courts, he sounds a note of caution. He did not close the door on the common law development of the

hearsay rule.

As can be seen by the cases cited, the common law has continued analysis and development of the hearsay use of

evidence. The courts have not excluded themselves from evolving modern jurisprudence on the use of hearsay

evidence. There is no reason why such evolution could not also take place in the wardship jurisdiction, if necessary.

2. The wardship jurisdiction

Wardship proceedings are unique. The jurisdiction was described in In re a Ward of Court [1996] 2 I.R. 79. The

judge is placed in the position of a good parent who must decide prudently on issues relating to the welfare of the

child. The kernel of the jurisdiction is the welfare of the child. This ancient jurisdiction places the court in a

particular position of responsibility. It must conduct an inquiry as to what, in all the circumstances, is in the best

interest of the child. This approach was identified in Southern Health Board v. C.H. [1996] 1 I.R. 219 by O'Flaherty

J. at p. 237, which judgment adopted Lord Devlin's speech in In re K. (Infants) [1965] A.C. 201 at pp. 240 and 241,

where he (Lord Devlin) highlighted the different role of the judge saying:

‘Where the judge sits purely as an arbiter between two parties, he need consider only what they put

before him. If one or other omits something material and suffers from the omission, he must blame

himself and not the judge. Where the judge sits purely as an arbiter and relies on the parties for his

information, the parties have a correlative right that he should act only on information which they have

had the opportunity of testing. Where the judge is not sitting purely, or even primarily, as an arbiter but

is charged with the paramount duty of protecting the interests of one outside the conflict, a rule that is

designed for just arbitrament cannot in all circumstances prevail.’

The special nature of the jurisdiction of the President of the High Court in wardship proceedings and the special

duty to protect the child's welfare are important factors. The very nature of the jurisdiction has set it in a place

apart. Thus it is entirely consistent that a judge exercising the wardship jurisdiction has a discretion as to the use

of hearsay evidence and may admit hearsay evidence in certain circumstances. However, that does not exclude the

exercise of due process and the protection of constitutional rights.

3. Constitution of Ireland

Wardship proceedings must be fair and in accordance with constitutional justice. The constitutional rights of all

parties, the children and the parents, must be protected. Where rights are in conflict they must be balanced

appropriately. Due process must be observed by the court while exercising this unique jurisdiction. Consequently, if

a legal right or a constitutional right is to be limited or taken away by a court this must be done with fair

procedures. Fundamental principles such as those enunciated in In re Haughey [1971] I.R. 217 apply. There must be

fair procedures. This process may prove particularly difficult in cases relating to a child's welfare when the court

must consider the issues of (a) the use of hearsay evidence, (b) especially when it is hearsay evidence of a child,

and (c) relating to alleged child sexual abuse. Each of these issues is a complex matter in its own right. However,

the court must conduct the inquiry by a process fair to all parties.

4. Children’s evidence and child sexual abuse

There are special concerns which must be addressed in relation to children's evidence. The legislature and the

courts have done this recently: see the Children Act, 1997 and Southern Health Board v. C.H. [1996] 1 I.R. 219.

Also, in cases of alleged child sexual abuse, especially where the allegations are against a person in a close

relationship to the child (such as father), there are often added difficulties. The nature of the allegation, the age of

the child, and in this case the issues of disability, place a particularly heavy burden on the courts to achieve justice

The Children Act, 1997, addresses the issue of children's evidence and enables evidence through a live television

link and through an intermediary: ss. 21 and 22. Section 23 renders admissible a statement made by a child

notwithstanding the hearsay rule if the court decides the child is unable to give evidence by reason of age or that

the giving of evidence would not be in the interest of the welfare of the child. It sets out in the section

considerations to be undertaken by the court to balance the justice of this situation. This part of the Children Act,

1997, applies to civil proceedings before any court, commenced after the commencement of this part, concerning

the welfare of a child. Counsel referred to this Act in the submissions before the court and pointed out that the Act

was not in force at the time the case was heard by the learned trial judge but that it was anticipated that it would

soon have force of law. S.I. No. 433 of 1998 fixed the 1st January, 1999, as the date on which Part III of the

Children Act, 1997, came into operation.

The issue of hearsay evidence of children was addressed by the courts in Southern Health Board v. C.H. [1996] 1

I.R. 219, which was decided by the Supreme Court on 11th March, 1996, two months after the decision by the

learned trial judge in this case. In Southern Health Board v. C.H. The evidence in issue was a video recording of an

interview held by a social worker with a child, as well as the social worker's opinion as to the validity of the

allegations of child sexual abuse. The respondent in that case objected to the admission into evidence of the video

tape on the grounds that it was hearsay. In the Supreme Court it was held that the proceedings in question were in

essence an inquiry as to what was best to be done for the child in the particular circumstances and were similar to

proceedings where a court was exercising its wardship jurisdiction. The Court stated that the focus of the inquiry

must be on the welfare and best interests of the child. It was determined that the key evidence was that of the

social worker which should be regarded as expert testimony and was subject to cross-examination. The video

recording of the interview with the child was not to be admitted as the independent evidence of the child but rather

as a portion of the material on which the expert evidence of the social worker would be based. It was stated that

the District Judge would be justified in admitting the evidence of the video recording if he was satisfied, having

heard such expert evidence as he thought right, (a) that the child was incompetent to give evidence, or

alternatively, (b) that the trauma the child would suffer would make it undesirable that she should give viva voce

evidence.

While Southern Health Board v. C.H. [1996] 1 I.R. 219, referred to video evidence only it provides a useful analogy.

It set out a careful process for the admission of the tape in evidence.

Thus both the legislature and the judiciary have found it necessary in recent times to consider appropriate

processes for the admission of hearsay evidence in cases where the issue is the welfare of the child. A balance is

sought to achieve the purpose of the matter - the welfare of the child - while at the same time having fair

procedures.

Decision on first issue

I am satisfied, considering these factors, the nature and evolution of the hearsay rule, the unique nature of the

wardship jurisdiction, the requirements of the Constitution including that of due process, and the special concerns

as to children's evidence in cases relating to their welfare especially when the issue is alleged child sexual abuse,

that the President of the High Court or any judge exercising the wardship jurisdiction has a discretion to admit and

use hearsay evidence. Thus, I would answer the first question in the affirmative: hearsay evidence is admissible in

wardship proceedings.

Second issue

The second issue is the question as to whether the High Court was correct in law in the manner in which it treated

the evidence. To an extent this case was the victim of developing law. The decision by the Supreme Court in

Southern Health Board v. C.H. [1996] 1 I.R. 219, had not been made when the learned trial judge heard this case.

As an analogy it is useful. Counsel for the first respondent did not make submissions, on this aspect of the case,

questioning the approach taken in Southern Health Board v. C.H. Neither did the learned trial judge have the benefit

of the Children Act, 1997, as it was not yet in place. Counsel informed the court that most cases of this nature will

in future not become wardship matters before the President of the High Court but rather be dealt with in other

courts under a legislative scheme. Nevertheless, the matter has to be determined in this case.

I am satisfied that the process whereby hearsay evidence was admitted in this case was not in accordance with

fair procedures to either the first respondent, the second respondent or indeed the children given their

constitutional rights. The very difficult problems created when there are allegations of child sexual abuse of children

in the home and the concern for the welfare of the children require fair procedures in court to vindicate the

constitutional rights of all the parties and the children. The issue has three strands - the issue of the use of

hearsay evidence, the issue of the evidence of children, and the issue of allegations of child sexual abuse - which

renders the matter complex.

Southern Health Board v. C.H. [1996] 1 I.R. 219 is now law. It describes a situation which holds many analogies.

Although there is a subtle difference between its facts and those of this case, where the key evidence is not the

video, it is indicative of a careful process.

A fair procedure requires the court as a specific matter, often it may be a preliminary issue, to determine whether or

not the child should give evidence to the court. In the wardship jurisdiction the paramount consideration is the

welfare of the child. In exercising the jurisdiction the court has a discretion as to whether the child will give

evidence. In exercising this discretion the court must consider all the circumstances. In the analysis as to whether

the child should give evidence and the determination whether hearsay evidence should be admissible, the age of the

child and the potential trauma of giving evidence in court are relevant factors.

Assessing the reliability and weight to be afforded to hearsay evidence will depend on the circumstances of each

case. These will include issues such as the child's age, ability, intelligence, comprehension of the circumstances,

skill in communication and coherence. The circumstances in which the hearsay evidence is obtained will be relevant.

The content of the hearsay evidence and its consistency, both within the body of hearsay evidence, and its

consistency to other relevant evidence, will also be relevant. This list is not intended to be finite. The reliability and

weight of the hearsay evidence will be specific issues to be addressed by the judge together with other relevant

circumstances.

The particular matter of children's evidence in wardship proceedings where the issue is the welfare of the child

deserves note. The President of the High Court must deliver justice to all, including children and including children

who for reasonable reasons are excluded from giving evidence themselves. The recent increase in the number of

cases where child sexual abuse is alleged has brought to the fore the problem of dealing justly with children's

evidence and the use of hearsay evidence. The child's welfare is the issue before the President of the High Court

and yet the child is usually not represented. The President of the High Court must inquire into the matter as to

whether the child should give evidence. If the child is not to give evidence the nature of the jurisdiction requires

the President to inquire into the allegations applying a fair process. This will sometimes include the admission of

hearsay evidence. If it is determined that a child is not to give evidence because of the potential trauma of giving

evidence then it could be unjust if the child's hearsay evidence, in ease of the child, relevant to the welfare of the

child, was excluded from a hearing to determine the welfare of the child. However, there must be appropriate

opportunity for other parties to address the circumstances. If the President determines that the child should not

give evidence because of its age, yet determines to admit hearsay evidence, then its reliability and weight will be

serious issues to be addressed by the court.

In conclusion, the learned trial judge was correct in holding that the judge in wardship proceedings has a discretion

to admit hearsay evidence by reason of the nature of the jurisdiction. However, the learned trial judge failed to

carry out a separate inquiry as to whether it was necessary to adduce hearsay evidence and if so, in what

circumstances. He heard the evidence de bene esse, which was an unfair process. The process did not have the

explicit fair procedures necessary to vindicate rights in determining such an important matter. Thus, I would answer

the second question in the negative. The High Court was not correct in law in the manner in which it treated the

evidence.

Third issue

As a result of my decision on the second issue, in the circumstances, it is not necessary to answer the third

question.”

In her judgment, Denham J, at page 113, concluded that hearsay evidence is admissible in wardship proceedings. She then asked the

question as to whether the court in that case had been correct in the manner in which it had treated the evidence in that case.

Having examined this issue, she concluded that while the trial judge had been correct in concluding that there was a discretion to

admit hearsay evidence by reason of the nature of the jurisdiction being exercised, he had failed to carry out a separate enquiry as to

whether it was necessary to adduce hearsay evidence and if so in what circumstances. She concluded that this was not correct in

law.

9. It has been submitted on behalf of the applicants that EHB v MK, and the earlier case of SHB v CH are not on point in that both

cases on their facts concern the admissibility of hearsay evidence of allegations made by children against their parents where such

children were the subject matter of the proceedings and remained children at the time of the proceedings. I do not agree with this

submission. The analysis of the "first issue" by Ms Justice Denham is clearly an analysis as to the admissibility of hearsay evidence in

general and is not limited to children who are the subject matter of proceedings. I am satisfied that in any case where it is proposed

that hearsay evidence be adduced that the Court must carry out a separate enquiry as to whether it is necessary to adduce such

hearsay evidence and if so in what circumstances.

10. The admissibility of hearsay evidence of children has been addressed by statute, under section 23 of the Children Act 1989. In

substance, that section requires the court to carry out an enquiry as to whether it is necessary to admit hearsay evidence, such

enquiry being of the same nature as that referred to in SHB v CH and in EHB v MK.

11. It is submitted by the HSE that the evidence of X is not the evidence of a party to the proceedings or of a child that is the

subject of the proceedings and that a distinction is to be drawn between the evidence of X and the type of evidence which has been

discussed in CH and in MK and the applicability of the hearsay rule to such evidence. I do not see how such a distinction can be

drawn.

12. It is submitted by the HSE that, on public policy grounds, where allegations are reported to it in the course of its carrying out its

statutory duties, there should never be any requirement that the person who makes such allegations may have to attend to give

evidence in court of such allegations. It is submitted that the possibility that a person might have to give evidence of such allegations

in court might make such a person reticent in making such allegations to the extent of seriously interfering with the HSE in the

performance of its statutory duties. It is implicit in that submission that evidence of such allegations would always be hearsay

evidence (unless the person who made the allegations was prepared to volunteer to come to court). I do not accept this submission.

If this submission is correct, it might lead to a situation where children who make allegations against their parents might be required,

following enquiry by the court, to give evidence as to their allegations whereas third parties who make similar allegations against

parents would not. I note that public policy has addressed the situation of persons who make allegations of this nature to bodies such

as the HSE, in The Protection for Persons reporting Child Abuse Act 1998. This provides for exclusion of civil liability in respect of

allegations of this nature. Neither that statute, nor any other provides for any exclusion of the hearsay rule, and I do not accept that

the hearsay rule can be excluded by this court to anything like the extent proposed by that HSE submission.

13. If the evidence of X is to be treated as the evidence of a child (in circumstances where she was a child when she made the

allegations), then I am satisfied on the basis of EHB v MK and section 24 of the Children Act 1989 that I must make an enquiry as to

whether it is necessary that her evidence is adduced as hearsay evidence.

14. If the evidence of X is to be treated as the evidence of an adult (in circumstances where she was a child when she made the

allegations but is now an adult) then I am satisfied on the basis of EHB v MK that I must carry out a separate enquiry as to whether it

is necessary to adduce hearsay evidence.

15. I have proceeded to carry out an enquiry as to whether it is necessary to adduce hearsay evidence in this case. The applicants

have failed to establish on any basis that it is necessary that hearsay evidence be adduced with regard to the allegations made by X.

The applicants agree that X, at a meeting in February, indicated that she might be prepared to attend at court to give evidence.

Since that date, the applicants have not been in contact with X. In all the circumstances of the case and given the grave matters

involved, I do not accept that five or six unanswered telephone calls, one letter (which does not in any event make any reference to

these proceedings or the possibility of giving evidence) and one visit to an address which is clearly no longer occupied, establishes

that X is not available to give evidence. It is the task of the applicants to secure the attendance of necessary witnesses, which can

be done by subpoena where necessary. The applicants have given evidence that they are of the view that the issue of a subpoena

and any subsequent court order resulting from non-attendance at court would be traumatic for X. I accept that in a general way,

such a process may be traumatic for any person; however, the trauma is not (or in any event in this case is not established as being)

sufficient to prevent such persons attending court. Further it is submitted by the applicants that X indicated that she was suffering

from depression. There is no evidence that she is not capable of attending court, either due to such depression or otherwise. It is of

course possible that she might not be capable, but this possibility in itself is insufficient to establish a necessity for evidence to be

adduced by way of hearsay evidence.

16. I am concerned that in circumstances where I have found on enquiry that it is not established that it is necessary to admit

hearsay evidence, that nevertheless the allegations are of such a serious nature of the court cannot consider the matter as at an

end as yet. It is in the interests of the subject child that the opportunity afforded to the applicants to either secure the attendance

of X as a witness, or to satisfy the court that it is necessary (on the basis of further evidence, or on grounds other than those

already advanced) to adduce hearsay evidence. In this regard, it is open to the HSE to submit further evidence in relation to X’s

mental state etc.

17. This preliminary matter may also have to be considered further if X refuses to give evidence.