District Court admits child's hearsay statements under Section 23 of Children Act 1997 due to welfare concerns.

[2012] IEDC 23

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

T&C

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 23

IN THE MATTER OF CHILD 1

21 November 2012

1. The applicant applied under section 18 of the Child Care Act 1991 for a care order in respect of the young person. The hearing of

the application was commenced at on 21 November 2012. A booklet of documents was received, prepared by the applicant.

2. All parties and the Guardian Ad Litem (“GAL”) attended and were legally represented at the hearing. The respondents had the

assistance of an interpreter.

3. A preliminary issue arose. The applicant had served a notice pursuant to section 23 of the Children Act 1997 seeking an order for

admission of certain statements made by the young person, as set out in the said notice. The respondents opposed the section 23

application. The GAL supported the section 23 application.

4. In respect of the preliminary application, evidence was given by CF, social worker, and by the GAL. The respondents did not give

evidence. The parties also made oral submissions.

Decision

4. This is an application under section 23 of the Children Act 1997 (the Act) with regard to the admission of the evidence which is set

out in the notice.

5. Section 23 of the Act provides as follows:

‘(1) Subject to subsection (2), a statement made by a child shall be admissible as evidence of any fact therein of

which direct oral evidence would be admissible in any proceeding to which this Part applies, notwithstanding any

rule of law relating to hearsay, where the court considers that—

(a) the child is unable to give evidence by reason of age, or

(b) the giving of oral evidence by the child, either in person or under section 21 , would not be in the

interest of the welfare of the child.

(2) (a) Any statement referred to in subsection (1) or any part thereof shall not be admitted in evidence if the

court is of the opinion that, in the interests of justice, the statement or that part of the statement ought not to be

so admitted.

(b) In considering whether the statement or any part of the statement ought to be admitted, the court shall have

regard to all the circumstances, including any risk that the admission will result in unfairness to any of the parties to

the proceedings.

(3) A party proposing to adduce evidence admissible in proceedings to which this Part applies by virtue of

subsection (1), shall give to the other party or parties to the proceedings—

(a) such notice, if any, of that fact, and

(b) such particulars of or relating to the evidence,

as is reasonable and practicable in the circumstances for the purpose of enabling such party or parties to deal with

any matter arising from its being hearsay.

(4) Subsection (3) shall not apply where the parties concerned agree that it should not apply.’

6. I have asked whether the parties could give me any guidance in relation to any case law with regard to section 23. Counsel for the

applicant has referred to EHB v MK [1999] 2 IR 99, and I am also aware of SHB v CH [1996] 1 IR 219, both of which decisions related

to circumstances which arose before the Act came into operation. I have not been referred to any decisions made directly on point

since the coming into operation of the Act, so I have gone back to some extent to EHB v MK. It seems to me that the Act largely

follows what was set out in EHB v MK to be the proper way to deal with an application for the admission of hearsay evidence, with

one important addition which is that section 23(1), in providing that a statement made by a child shall be admissible of any fact

therein of which direct oral evidence would be admissible, seems to me to go slightly beyond what was stated in those cases with

regard to the admission of hearsay evidence. It is the part “as evidence of any fact therein”, I think those decisions dealt with the

admission of hearsay evidence without going so far as to whether it was evidence of any fact therein. That may in any event be

“splitting hairs” with regard to my decision.

7. It seems to me that following the scheme set out in section 23(1), and it seems to me what was envisaged also in EHB v MK is

that if there is an application for the admission of hearsay evidence that is opposed, then in order to reach a decision on the

application there has to be an enquiry by the court.

8. The first part of the enquiry is as to whether the young person is unable to give evidence by reason of age. There has been no

submission that Child 1 is unable by reason of age. I am satisfied that in this case the young person is approaching 18 years of age

and is not “unable to give evidence by reason of age”.

9. The second part of the enquiry then under section 23(1) is as to whether the “giving of oral evidence by the child, either in person

or under section 21, would not be in the interest of the welfare of the child”.

10. I am satisfied that the proper way to conduct the enquiry is to oblige the party seeking to have the evidence admitted to satisfy

the court that it would not be in the interests of the welfare of the child (to give oral evidence either “in person” or under section

21).

11. EHB v KM and SHB v CH and a number of the cases referred to in those decisions, from both Ireland and the UK, largely seem to

have involved children of a much younger age than the young person involved here. I do not think that it is a distinction that those

cases involved evidence relating to alleged sexual abuse. The children involved in those cases were referred to as being of “tender

years” and appear from those decisions to have been under 10 years of age. Both of those cases and the cases referred to therein

said that there were two issues that the court would have to look at: the first being the age of the young person and the second

being whether or not it is traumatic for the child to give evidence. I think it is appropriate to transfer that test to “would not be in

the interest of the child”.

12. The evidence that I have in this case, as it stands at present, is the evidence of the social worker and the GAL. The parents

were offered the opportunity to give or call evidence, and none has been given or called. The evidence of the social worker and the

GAL in summary is that it would be traumatic for this young person to give evidence in person. I have to accept that evidence in a

situation where it has been given; it is prima facie evidence that has not been controverted.

13. Section 23(1)(b) provides that the enquiry should be as to whether the giving of oral evidence “either in person or in accordance

with section 21” would not be on the interest of the welfare of the young person. The relevant part of section 21 provides that “(1)

[i]n any proceedings to which this Part applies a young person may, with the leave of the court, give evidence (whether from within

or outside the State) through a live television link”. While section 2(b) provides specifically for the possibility of evidence by live

television link, technology has moved on, and I would consider that “remote” evidence, if I can put it that way, available live through

appropriate technology and with appropriate safeguards could be considered. I have heard the evidence, particularly of the social

worker, that giving evidence even with the assistance of such technology would also be traumatic for the young person.

14. I am satisfied (just satisfied in this case) that the case is made out that the giving of oral evidence would not be in the interests

of the welfare of the young person.

15. I am conscious that the case law, and if I may say what has been transposed into the legislation following those cases, at

sections 24 and 25 of the Act, as to the weight (if any) to be given to evidence admitted under section 23(1) that evidence, is

sufficient to balance the interests of the parents in this particular case.

16. There was a reference in the social work evidence to what, for want of a better description, I will call “cultural” or “ethnic”

considerations, which were not made out in any way other than being referred to. I cannot and do not rely on such matters in this

case in reaching the decision I have made.

17. There was also reference to the appointment of the GAL as indicating that the Court had already considered that it was not in

the interest of the young person to be a party to the proceedings. I do not accept that the fact that a GAL is appointed means that

it would not be in the interests of the welfare of the young person to be a party to the proceedings or to give evidence in the

proceedings – I do not believe that the one excluded the other. In any event, the admission of hearsay evidence of a young person,

and the enquiry by the court would arise whether the young person is a party to the proceedings or not, and whether the young

person has had a GAL appointed or not.

18. That concludes the Court’s enquiry under section 23(1). I am satisfied that it would not be in the interest of the welfare of the

young person that she give evidence in this case and, pursuant to section 23, I admit the statements set out in the notice. I reserve

to the hearing the issue of the weight (if any) to be given to the evidence so admitted.