District Court grants GAL access to HSE files on Child 2 to protect Child 1's welfare under Child Care Act 1991 s.47.

[2013] IEDC 13

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

B&R

RESPONDENTS

CHILD CARE ACT 1991— SECTION 47

IN THE MATTER OF CHILD 1

28 May 2013

1. On 27 January 2012, the applicant issued an application for a care order with respect to Child 1, pursuant to section 18 of the

Child Care Act 1991 (the CCA). This application has not been heard. On the same date, the applicant also issued an application for an

interim care order with respect to Child 1, pursuant to section 17 of the CCA. This application was heard on 16 February 2012, when

an interim care order was granted to expire on 22 March 2012. The Guardian Ad Litem (“GAL”) was also appointed on that date. On 22

March 2012, and on various subsequent dates, the applicant applied for extensions of the initial interim care order, which have been

granted. The latest extension of the interim care order is due to expire on 18 June 2013. The applications under section 17 and

section 18 of the CCA are hereinafter referred to as “the proceedings”.

2. Child 1 has remained in the care of the applicant continuously since the granting of the initial interim care order.

3. On 24 July 2012, the GAL issued an application under the CCA (hereinafter called “the application”). This application is headed “In

the matter of [Child 1]”, names the GAL as Applicant, the mother as first named respondent, the HSE as third named respondent, and

the father as a notice party. The second named respondent is T, the father of Child 1’s half brother (Child 2). The application sought

two substantive orders, in the following terms:

“1. An order under s47 of the [CCA] directing that the consent of the first and second named respondents (i.e. the

mother and T) be dispensed with for the purpose of enabling the GAL to inspect the files of Child 2 held by any and

all work departments of the third named respondent (i.e the HSE).

and/or

2. An order under Order 46A of the rules of the District Court directing the third named respondent (i.e the HSE) to

make discovery of any records in the power possession or procurement of any and all of its social work departments

concerning Child 2”.

Counsel for the GAL indicated in the course of the hearing that the GAL was not pressing the application under Order 46A unless her

application under section 47 was unsuccessful.

Counsel for the GAL the indicated in the course of the hearing that the GAL might limit the application to information on social work

department files relating to child protection and welfare incidents involving mother.

4. The application ultimately came on for hearing on 31 January 2013. The father of Child 1, who was a notice party to the

application, chose not to take part and was neither present nor represented. The applicant and each of the respondents to the

application were represented by counsel and made written and oral submissions.

5. The first social work report submitted to the court (dated 3 February 2012) in connection with the proceedings contained, inter

alia, the following:

“Referral 2.

On 26/08/2009, Child 2’s father contacted the social work department. He informed the Duty Social Worker that

[Child 2] was staying at his paternal grandmother’s house … as [Child 2]’s mother had hit him. The Duty Social

Worker spoke with [mother] on this date and she admitted that she had hit [Child 2], causing him injury. HSE/Garda

Notifications regarding this incident were completed as confirmed.

On 04.09.2009 proceedings under the Guardianship of Infants Act 1964 were brought before the District Court and

interim custody of [Child 2] was awarded to [Child 2’s father], with familial access to take place in [mother]’s home,

under supervision. The proceedings were adjourned until 15/10/2009 and this department was directed by the court

to provide an Interim Report under s20 of the CCA.

This report was presented to the Court on 15/10/2009 and an interim custody order was granted, giving custody of

[Child 2] to [the father]. Proceedings were adjourned until 14/01/2010, pending the completion of a full report by

the HSE. [The father] was granted custody of [Child 2].”

Subsequent social work reports prepared in the proceedings have stated that they should be read “in conjunction with previous

reports”, including the report of 3 February 2012.

6. It is clear from the submissions of the parties, and from the oral argument in the case, that the report(s) prepared under section

20 of the CCA in the private law proceedings in 2009 fall within the scope of the application.

7. The GAL submits that the information sought by her relates to allegations of physical and sexual abuse by mother of Child 2, which

are denied by mother. The GAL says that mother has made some admissions in the course of evidence in the Circuit Court which was

hearing an appeal against orders made in these proceedings. The GAL submits that there are discrepancies or conflicts between the

evidence given in the Circuit Court, and accounts given by mother to professionals (which said accounts are contained in the reports

prepared by such professionals). The GAL submits that she is unable to form a view on the said discrepancies or conflicts without

sight of the information sought. The GAL submits that both the HSE and mother have had (or at any rate are entitled to have) sight

of the section 20 reports prepared in the private law proceedings in 2009, which gives rise to an inequality as between the HSE and

mother, and the child. Whether there is an inequality or not, the GAL submits that she must advise the court of her view as to

whether the threshold for a care order under the CCA has been reached and that her ability to do so is compromised if she does not

have access to the information sought. She submits that information pertaining to mother’s care of another child is relevant, that it is

legitimate to consider mother’s care of other children in assessing the likelihood of what has happened in the past occurring in the

future. The GAL submits that Child 1’s welfare is affected by the disclosure or non disclosure of the information sought. The GAL

submits that the effect of such disclosure on Child 2, Child 2’s father, and mother is relevant, but that the court must balance the

rights of Child 1 against those of Child 2 an Child 2’s father and mother, and that such balance favours the disclosure sought. While

the application submitted is very widely drafted, the GAL in oral submissions suggested that disclosure would be limited to information

pertaining to child protection and welfare issues arising as between mother and Child 2 (as opposed to all information held relating to

Child 2). The GAL submitted that it is appropriate for the court to consider safeguards in respect of the information sought, that in

this regard that the GAL is seeking only that she inspect the information, that she is not seeking that her legal representatives should

have access to the information sought, nor does she seek to have it disclosed to father. The GAL acknowledges that it is appropriate

that if her application is granted that the court should impose such safeguards as may be necessary, that she is a professional GAL of

considerable experience, and that she will exercise a discretion and act within such safeguards or limitations as the court may impose.

In this regard, however, the GAL submits that it would not be appropriate to impose a limitation on her referring in her reports to the

information that may be disclosed to her, because it will be necessary, in order to explain her reasoning, to disclose the information

upon which such reasoning is based. The GAL submits that much of the information to which she seeks to have access relates to

issues which are already referred to in existing reports such as HSE reports, CAHMS reports, the treatment centre’s report, and

Doctor 1’s report and that the privacy of Child 2 and Child 2’s father has already been compromised by the availability of such

information, and that further disclosure to the GAL in the manner envisaged by her application does not adversely affect the privacy

rights of Child 2 and Child 2’s father to the extent that would warrant the information not being disclosed in Child 1’s interest. The GAL

submits that such disclosure would not go beyond the court, i.e the parties and any experts properly involved. The GAL further

submits that all information would remain subject to the in camera rule

8. Mother submits that the court has no jurisdiction to make an order under section 47 in relation to information that relates to Child

2, as Child 2 is not a child in care and the question of release of information which relates to Child 2 is not a question relating to the

welfare of a child in care. Mother submits that granting of the application would be an unwarranted interference with the privacy

rights and rights to family life of herself and Child 2. Mother submits that she has dealt with the allegations referred to in the social

work report, in that she has admitted to striking Child 2. Mother submits that the order granting custody to the father, in the private

law proceedings, was made on consent. She states that there has been on-going access between her and Child 2, and that there

had been no difficulties or issues raised in respect of this for the past number of years. She says that she does not know what the

GAL is looking for. She questions whether all parties (including father who does not have access to the section 20 reports) should

now have such access. She says that life has moved on for her and for Child 2 since the incidents that may be reported in section 20

reports and referred to in the file relating to Child 2. She states that the information that may be in those reports and which relates

to Child 2 is irrelevant to Child 1, and is further irrelevant in that mother has now made an admission in relation to such incidents. She

submits that such evidence as may be required by the court in relation to these incidents can be ascertained by evidence given by

the mother, if necessary by Child 2’s father, and by other witnesses that could be called by the applicant or other parties, and by

cross-examination. Dealing with the matter by cross-examination of the necessary witnesses would not then involve interference with

the rights of Child 2. Mother submits that the application amounts to an enquiry of third parties.

9. Child 2’s father objects to the GAL having access to the section 20 report(s) or to anything else in relation to Child 2 which

objection is grounded on his and Child 2’s rights to privacy and to family life. He submits that neither he nor Child 2 are parties to the

proceedings, that their lives have moved on, that he is the primary carer of Child 2 and has now a good relationship with mother, and

that Child 2 also has a good relationship with the mother. He acknowledged that his rights and those of Child 2 are not unqualified,

and are competing rights as against the rights of Child 1, including his rights as a child in care. He submitted that the information with

regard to incidents between mother and Child 2 is available from the existing reports which are already available to the court. In the

event of the court granting the order to the GAL and disclosing information to her, then he would object to such information being

disclosed to Child 1’s father or to other people, and that such further disclosure would further and unnecessarily interfere with the

rights of and the relationships between Child 2, mother, and himself, and would interfere with their family life. He submitted that the in

camera rule in relation to documents such as the section 20 reports is in the public interest in that the existence of that rule provides

for a better functioning service, and that there is a public interest in not setting aside the in camera rule as to do so might interfere

with the willingness of individuals and professionals to give information and/or provide reports, which interference would be against

the interests of children in general. He submitted that if the setting aside of the in camera rule is not in the public interest, it is also

not in the interest of Child 2’s father and not in the interest of Child 2. He submitted that there may be other means by which to bring

the information sought before the court including the commission of another report. He submitted that the information regarding the

interaction between Child 2 and mother was not relevant because of the length of time that has elapsed since it occurred. He

submitted that the court may draw inferences from the result of the custody application in the private law proceedings. He submitted

that the release of the information would be stepping on the constitutional rights of himself and Child 2.

10. The HSE confirmed that it is relying on the information set out in the social work report at paragraph 5 above. The HSE is not

objecting to the application. With regard to jurisdiction, the HSE submitted that the guiding principle is the best interests of the child

who is the subject matter of these proceedings. The HSE submitted that the fact that Child 2 is not a child in care and is not the

subject of these proceedings is not relevant , that the issue is the interactions between mother and Child 2 and the relevance of

those interactions to the issues in these proceedings. The HSE submitted that the question of whether the court should allow the

application requires a balance between the rights of Child 2, Child 2’s father, mother, and Child 1. The HSE accepts that such report

and such information as may be relied upon in the hearing of the application must be proven.

11. Regarding the rights to privacy and family life, in the recent case of P v Q [2012] IEHC 593, the High Court was dealing with a

discovery application in private family law proceedings. White J said as follows:

“16. The … right to privacy is an unenumerated constitutional right and one respected by the European Convention

of Human Rights.

17. The right to privacy received judicial recognition in Ireland in the case of Kennedy v. Ireland [1987] I.R. 587

when Hamilton P. stated at p. 592:-

‘Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental

personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not

an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the

requirements of the common good and is subject to the requirements of public order and morality.’

18. Article 8 of the European convention on human rights states:-

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is

in accordance with the law and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for the prevention of disorder or

crime, for the protection of health or morals, or for the protection of the rights and freedoms of

others’”.

He goes on at paragraph 20 to quote an extract from G v An Bord Uchtala [1980] IR 32, in respect of the paramountcy of the welfare

of the child, as follows:

“[t]he word ‘paramount’ by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had

intended the welfare of the child to be the sole consideration it would have said so. The use of the word

‘paramount’ certainly indicates that the welfare of the child is to be the superior or the most important

consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any

given case.”

While that quote refers to the section 3 of the Guardianship of Infants Act 1964, section 24 of the CCA is in similar terms and applies

to these proceedings and application.

12. In Dolharme v Sweden App no 67/04 (EctHR, 6 June 2010), at paragraph 116 the ECtHR states:

“whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of

interference must be fair and the parents and, as appropriate, the children must have been involved in the process,

seen as whole, to a degree sufficient to provide them with the requisite protection of their interests”.

In TP and KM v The United Kingdom App no 28945/95 (EctHR, 10 May 2001) at paragraph 82, the ECtHR states that “[t]he positive

obligation of the contracting state to protect the interests of the family requires that [the evidence on which a decision to remove

the child is based] be made available to the parent concerned, even in the absence of any request by the parent”.

The GAL submits that there is a positive obligation on the HSE to disclose relevant documentation, whether requested to do so or

not, and that such an obligation applies to disclosing the information to the child’s GAL equally as it applies to disclosing the

information to the parent, and seeks to assert such a right on behalf of the child.

13. The GAL refers to HH v McDonnell [2012] IEHC 255. Paragraph 4 of that decision sets out the decision of the District Court, and

the decision of the Circuit Court on appeal and refers to the imposition of restrictions by the Circuit Court in the context of granting

limited access to files. At paragraph 12, while acknowledging that the issue in the case was moot, Birmingham J made observations

which are relied upon by the GAL.

14. The GAL submits that the HSE has had the information in relation to Child 2 and has used it, but the GAL seeks (similar to the

situation in HH) to have sight of what the HSE has used, and that where there is a conflict between the rights of individuals including

Child 1, the subject matter of the care proceedings, then “the interests of the child the subject matter of the current care

proceedings were and had to be paramount”.

15. The HSE referred to Eastern Health Board v Fitness to Practice Committee of the Medical Council [1998] 3 IR 399. The judgment

of Barr J is well known and often quoted, including in the recent case of HSE v McAnaspie [2011] IEHC 477. In his judgement, Barr J

set out principles of general application which he believed to represent the law in Ireland in relation to the in camera rule. Of

particular relevance to this case are the following:

“(2) The primary reason for the in camera rule in such cases is to provide protection for minors from harmful

publicity arising out of the disclosure of evidence and other related matters in protected proceedings.

(3) A statutory imperative that proceedings of a particular nature be held in private (as provided, for example, by s.

5 of the Punishment of Incest Act, 1908) does not imply that there is an absolute embargo on disclosure of

evidence in all circumstances. Such an embargo requires specific statutory authority to displace judicial discretion

at common law to permit disclosure in appropriate circumstances. If an absolute embargo on the publication of

evidence adduced in the course of in camera proceedings in all circumstances were implied from a mandatory

requirement that such proceedings be held in private, then grievous harm could be done to public and private

interests and to the pursuit of justice. For example, if in the course of proceedings in camera, it was established

that a witness was guilty of perjury or some other crime, the trial judge would be unable to refer the matter to the

Director of Public Prosecution with a view to having a criminal prosecution brought against the wrongdoer. Likewise,

if it emerged in evidence protected by the rule that a professional witness, or a lawyer acting in the case, was

guilty of professional misconduct, the trial judge would be inhibited in referring the matter to the offender’s

professional body for investigation. It would also follow if there was an absolute embargo that a child concerned in

such proceedings would be spancelled in pursuing claims which he or she might have for damages arising out of

evidence protected by the in camera rule, notwithstanding that the primary purpose of the rule in such cases is to

protect the minor. A major far-reaching change in the law, which sets aside established practice, could not arise

merely by implication derived from a mandatory statutory requirement that certain proceedings shall be held in

private but, in my view, would require specific statutory authority.

(6) In considering a conflict between the public interest or the interest of a person seeking disclosure on the one

hand, and the interest of an individual in retaining the full benefit of the in camera rule on the other hand, the court

is bound by the concept that the paramount consideration is to do justice – see In re R. Ltd. [1989] I.R. 126.

(7) The use of evidence emanating from an in camera hearing in other legitimate proceedings where the public

interest or the interest of the protected person or some other interested party requires, includes not only related

litigation in court but also other non-judicial proceedings such as a statutory inquiry by a professional body into

complaints made to it about a professional negligence or incompetence of one of its members – see A County

Council v. W. [1997] 1 F.L.R. 574.

(9) Some of the legislative provisions relating to in camera proceedings require mandatory privacy and in others it is

a matter for the presiding judge to decide whether the proceedings shall be heard in private. In my opinion that

distinction relates only to the particular proceedings and whether or not the presiding judge has any discretion

therein in deciding on the imposition of the in camera rule. It does not affect in either case the exercise by the

court of its discretion to permit the subsequent disclosure of in camera information in the interest of justice, the

achievement of which, as previously stated, is its paramount obligation. In short, whether the in camera rule applies

mandatorily or by way of judicial discretion does not affect the authority of the court to permit disclosure of

protected information where justice requires that disclosure should be made.

(10) 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”.

Decision

16. In these proceedings, this court must determine the application that has been made under section 18 of the CCA. Effectively,

therefore, this court must determine whether Child 1, the subject of these proceedings, should reside with his family or should reside

in the care of the applicant. This is truly a decision of momentous importance, both to Child 1 and to his family.

17. It is accepted that in proceedings of this nature, the welfare of the child who is the subject matter of the proceedings is the first

and paramount consideration. It is also accepted that proceedings of this nature are inquisitorial rather than adversarial. In the

ordinary course of events, in order to ensure that the welfare of the child is the first and paramount consideration, this court ought

to have before it all evidence that is available and is relevant to the issue or issues to be decided. In order to ensure procedural

fairness, all evidence before the court should also be available to all of the parties in advance of the hearing.

18. It must also be accepted that Child 2 has rights over information that relates to him, whether such rights fall under the headings

of privacy or family life or otherwise. In the ordinary course of events, in order to protect such rights, such information, particularly if

the subject of the in camera rule, would not be available to third parties.

19. Where the welfare of Child 1 is in issue, as Child 1 is a child in the care of the applicant, the court may make orders under section

47. Whether and to what extent interactions between mother and Child 2 may have given rise to child protection and welfare

concerns is prima facie potentially relevant to the welfare of Child 1. In assessing the welfare of Child 1 and any risks to him that may

exist, it would be wrong to exclude any relevant information from consideration, including information relating to interactions between

mother and Child 2 which may have given rise to child protection or welfare concerns. The issue of disclosure of such information,

which is relevant to Child 1’s welfare, is in itself a question affecting the welfare of Child 1. I am satisfied therefore that I have

jurisdiction to make an order under section 47 in this matter, and I will make the order under that section. It is not necessary for me

to consider whether I could make a similar order under Rule 46A – such consideration could arise in a case where application has been

made under the CCA but there is no child in care.

20. The various parties to the proceedings and the application, and Child 1 and Child 2 have rights of privacy and have rights to family

life under the Constitution and the Convention. In considering whether to make an order under section 47, in addition to the interests

and welfare of Child 1, the court must have regard to the interests of and the rights of Child 2, Child 2’s father, and of the parties to

these proceedings. Any order which discloses information in relation to Child 2, Child 2’s father, or the parties to these proceedings

may constitute interference with such rights. Therefore in exercising the jurisdiction to make an order under section 47, the court

must weigh all such rights in the balance, and it appears to me that if the court makes any order, such order should go no further

than is necessary.

21. The issues raised by the application by the GAL in this case are in many ways very similar to those raised in HH v McDonnell.

Adapting the language of the court in paragraph 7 of that decision, one could state that in this case: the emergence alongside

current childcare proceedings of the fact that there are allegations of physical and sexual abuse against the same individual who is

the subject of allegations that are central to the present proceedings has the capacity to create a dilemma. If one was to have

regard to the information dating from Child 2’s earlier childhood, this has the obvious implications for Child 2’s right to privacy. On

the other hand, failing to have regard to the information which is readily available would mean that an assessment of the case would

be less than comprehensive and the outcome might, in consequence of this, be less reliable.

While that case concerned the release of information to an expert for the purpose of a risk assessment, the Circuit Court had also

ordered that the GAL be allowed sight of the relevant file.

I do not propose to attempt to define the function of a GAL. I am satisfied that it is within that function for the GAL to have sight of

all information relevant to the child to whom the GAL is appointed. This includes information regarding child protection and welfare

concerns involving any party to the proceedings in which the GAL is appointed, that have arisen in respect of any other children. I am

satisfied that it is within the function of the GAL to assess such information, and that to exclude her from having sight of that

information would adversely affect her ability to independently advise the court of her opinion as to what would be in the best

interests of the child who is the subject of the present proceedings.

22. I am satisfied that in all the circumstances of this case, that the HSE ought to disclose to the GAL such information and

documentation as it may have in its possession regarding interactions between Child 2 and mother that give rise to or have given rise

to child protection or welfare concerns. The interests of Child 2, Child 2’s father, and mother, and in particular their rights to privacy

and family life are outweighed by the interest of Child 1 in having that information available to his GAL to fulfil that part of her

function referred to above, subject to the limitations to be imposed by the court.

23. With regard to the in camera rule, it is clear from the decision of the High Court in McAnaspie that this court has discretion to lift

the in camera rule in appropriate circumstances. As set out in EHB v Fitness to Practice Committee, the purpose of the in camera

rule is to protect minors from harmful publication of evidence in protected proceedings, but this does not imply that there is an

absolute embargo on disclosure of evidence in all circumstances. I can think of few circumstances that would give rise to greater

justification of the lifting of the in camera rule than that the evidence which is subject to the in camera rule relates to child

protection concerns similar to those raised in the present proceedings. The public policy considerations regarding the imposition or

lifting of the in camera rule must be considered in that light, and in light of the paramount consideration of the necessity to do justice

to all concerned, and to the paramount interests of Child 1, the child the subject of these proceedings. Insofar as any such

information may be contained in section 20 reports commissioned from the HSE by the District Court in the context of private law

proceedings, then I lift the in camera rule for the purpose of the HSE allowing sight of such information and documentation to the

GAL. All information and documentation must be redacted to remove references to issues other than such issues as may have given

rise to child protection or welfare concerns. For the purpose of clarity, and not to limit the effect of the order, the order includes

sight of any documents relating to interviews that may have occurred with the mother or with any witnesses to any incidents that

give rise to child protection or welfare concerns.

24. I do not propose to make any ruling on the procedural rights of parties to disclosure of information, whether requested or not, or

the procedural rights of children in child care proceedings. I am satisfied that the order to be made herein does not offend the

principles set out in the ECtHR cases referred to by the GAL.

25. Insofar as the issue was raised by mother, I am satisfied that the order to be made herein does not constitute an enquiry from a

third party, in the sense referred to in HH, or at all. I am also satisfied that neither the passage of time, nor the admissions by mother

in respect of the allegations, can or should exclude the information which was available in 2009 and the reports which were drawn up

on foot of such information, from consideration by the GAL. It will be open to all parties to address such matters in assessing the

weight (if any) to be given to such information and reports or any opinions or conclusions based on such information or reports.

26. There is a recognition in some of the case law that in applications of this type, it may be necessary for disclosure to be ordered in

stages. Therefore, if having examined the documents and information to be disclosed under this order, the GAL is of the view that she

requires sight of other specified documentation, then an application can be made in that regard.

27. Similarly, if the GAL (or any other party) considered in the future that is necessary to release any of the disclosed information on

to other parties, further application can be made in that regard.

28. While I have in mind to specifically limit disclosure to issues relating to incidents between Child 2 and mother that may have given

rise to child protection and welfare concerns, I am open to submissions on behalf of the parties, in particular on behalf of mother as

to whether such a limited order might in itself bias the information that might be made available to the GAL, and that it may be

necessary in the interests of balance that all information regarding interactions between mother and Child 2 should be disclosed to the

GAL

29. Redaction in this matter will initially be a matter for the HSE. If there is a real doubt with regard to whether any particular piece of

information should be redacted, then such a doubt can be referred to court.

30. Stay on the order to close of business on Tuesday next .