Guardian Ad Litem's Section 23 notice insufficient; court requires clear identification of child statements for admissibility.

[2013] IEDC 19

AN CHUIRT DUICHE THE DISTRICT COURT

DUBLIN METROPOLITAN DISRICT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SO & PSA

RESPONDENTS

CHILD CARE ACT, 1991- SECTION 18(1) AND SECTION 24 CHILD CARE ACT, 1991; SECTION 23 CHILDREN ACT, 1997; ROLE OF

THE GUARDIAN AD LITEM – WHETHER EXPERT WITNESS OR PARTY TO PROCEEDINGS; & APPLICABILITY OF SECTION 23 TO

THE GUARDIAN AD LITEM

IN THE MATTER OF Child 1, Child 2, Child 3 and Child 4

CHILDREN

6 November 2013

1. This is an application pursuant to Section 23 of the Children Act, 1997 (hereinafter referred to as the 1997 Act) brought by the

Guardian Ad Litem.

2. An Application by the HSE for a Care Order in respect of the children is pending before the Court.

3. The matters at issue between the parties in relation to the Section 23 Application are; firstly whether that section applies to a

Guardian Ad Litem (GAL), secondly whether the Guardian Ad Litem is a party to the proceedings or is an Expert Witness, and whether

in either capacity the Guardian Ad Litem is subject to the Constitutional constraints of fair procedures. Lastly whether the notice

served by the Guardian Ad Litem under Section 23 in these proceedings is sufficient notice of the statements allegedly made by the

children to the Guardian Ad Litem and now sought to be admitted as evidence within parameters of that section.

4. Section 23 of the 1997 Act is contained in Part III of that Act which relates to the Evidence of Children in civil proceedings.

Section 19 of that Act defines “statement” to mean any representation of fact or opinion however made by a child. The Act then

explores the means by which the child may, with leave of the court give evidence, including by television link and with or without the

intervention of an intermediary for the purposes of cross examination in evidence given in that manner.

“23.—(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”.

5. Section 24 then provides for the weight, if any, to be attached to any statements admitted under Section 23 and requires regard

to be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the

statements so admitted. Subsection (2) of Section 24 provides that:

“(2) Regard may be had, in particular, as to whether—

(a) the original statement was made contemporaneously with the occurrence or existence of the matters stated,

(b) the evidence involves multiple hearsay,

(c) any person involved has any motive to conceal or misrepresent matters,

(d) the original statement was an edited account or was made in collaboration with another for a particular purpose,

and

(e) the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent

proper evaluation of its weight.”

6. Sections 26, 27 and 28 of the 1997 Act provide further safeguards and parameters within which evidence is received. Section 27

enables the transfer of proceedings to a venue which has video link technology. Section 28 enables the court to hear unsworn

corroborating evidence from a child under the age of 14 years subject to the child being able to give an intelligible account of events

relevant to the proceedings and understands the difference between truth and untruth.

7. Section 23 cannot be viewed independently to the other Sections in Part III of the 1997 Act which became operational on

1/01/1999 by Commencement Order S.I. No. 433 of 1998. Section 23 applies to “a party to the proceedings”. Accordingly the issue

presenting is whether the Guardian Ad Litem is a “party to the proceedings” and whether the Guardian Ad Litem is obligated under

Section 23 to give notice of the precise statements made by each child whose statements that s/he seeks to admit as evidence of

any facts contained in such statements.

Parameters of the Role of Guardian Ad Litem

8. The parameters of the role of a Guardian Ad Litem are in dispute between the parties. Counsel for the HSE and Counsel for the

mother both contend that the Guardian Ad Litem is not a party to the proceedings.

9. Counsel for the Guardian Ad Litem highlights the role of the Guardian Ad Litem in voicing the child’s expressed wishes and feelings

in child care proceedings in which the children have not been accorded party status. In this context it is contended that statements

made by a child to the Guardian Ad Litem are already set out in the sundry Reports before the Court. It is submitted that such

statements are not ‘hearsay’ and do not require the service of a Section 23 Notice.

10. Counsel for the Guardian Ad Litem also contends that the Guardian Ad Litem has a role to act as the child’s representative in the

proceedings before the Court and to put the statements made by a child before the court as the child’s own evidence. It is in this

capacity that the Guardian Ad Litem has brought an application under Section 23 of the 1997 Act in order to admit the children’s

sundry statements made to him/her as their evidence.

11. Counsel submits that the Guardian Ad Litem has both a reporting and a safeguarding function and in this capacity has familiarised

his/herself with the minor’s history and interactions with various agencies and is entitled to report on this to the Court as matters

relevant to welfare. It is not contended that this establishes as evidence the matters reported upon. Counsel for the mother submits

that the role and function of a Guardian Ad Litem under the 1991 Act are unregulated and that a potential mischief arises where

summaries in Guardian Ad Litem Reports are presented as fact which may be perceived to circumvent the hearsay rule. Counsel for

the mother submits that the Guardian Ad Litem must always adhere to the principles of fair procedure when seeking to admit ‘hearsay’

as evidence of fact and in this submits that Section 23 of the 1997 Act is the relevant statutory procedure.

12. Counsel for the Guardian Ad Litem further contends that the Guardian Ad Litem may have a role in the establishment of the

threshold criteria where statements made by the child to the Guardian Ad Litem are relevant to the threshold. It is suggested that in

this context matters elicited by the Guardian Ad Litem are likely to have a greater reliability than other evidence and therefore may

limit the need for an application under Section 23 of the 1997 Act, or in the alternative must be taken into account to carry out the

Section 23 process. This proposition is rejected by Counsel for the mother.

13. It is also contended that it is within the role of the Guardian Ad Litem as expert to offer an independent expert view to the Court

as to whether the threshold has been met in the case by the HSE and to offer a view on what Order the Court might make. In

support of this proposition Counsel relies upon the dicta of McMenamin J. in the case of HSE v DK [2007] IEHC 488 at para 59.

Counsel for the Guardian Ad Litem also submits that his/her client is a child care professional skilled in interviewing children and so

may provide expert testimony as to what was said and what is in the child’s welfare. In this context that Guardian Ad Litem is entitled

to base their opinion and testimony upon statements of fact made to him/her by any of the children as source material and those

statements are admissible in that context and should not be classified as hearsay.

14. Counsel for the mother submits that the case HSE v DK is specific to situations where the High Court exercises its inherent

jurisdiction in the context of secure care of older minors and submits that the Guardian Ad Litem is neither a party to the proceedings

nor an expert witness. S/he submits that the statutory regime set out in Sections 25 and 26 of the Child Care Act 1991 is clear and is

expressed in the alternative. If a child is joined as a party to the proceedings then they may also be appointed a solicitor to represent

them in the proceedings, but Section 26 does not afford the Guardian Ad Litem party status in the proceedings. S/he also submits

that the Guardian Ad Litem cannot claim the dual role of an independent expert witness and that of a party to the proceedings and

furthermore cannot employ the role of an independent expert to forensically shield oneself from the due process obligation contained

in Section 23 of the 1997 Act in breach of his/her client’s right to fair procedures.

15. Counsel for the HSE also rejects the proposition that the Guardian Ad Litem is a party the proceedings but describes the Guardian

Ad Litem’s role as akin to that of an expert. In their submission the Guardian Ad Litem is also obliged to adhere to appropriate fair

procedure processes such as those set out in Section 23 of the 1997 Act if the Guardian Ad Litem seeks to rely on hearsay

statements to ground their professional opinion in order to ensure that all parties benefit from fair procedures in the proceedings.

16. Both Counsel for the mother and Counsel for the HSE agree that the Guardian Ad Litem has the dual role: putting a child’s wishes

and feelings before the court; and, advising the court of what the Guardian Ad Litem deems to be in the best interests of the child.

Both also agree that a Guardian Ad Litem’s role requires independence and submits that the Guardian Ad Litem must remain above the

adversarial contest between the parents and the HSE.

Hearsay Evidence

17. It is contended by Counsel for the Guardian Ad Litem that by way of exception to the rule against hearsay; the Guardian Ad

Litem like any other expert may rely upon the statements made by a child to him/her as source material for their opinion

notwithstanding that the statement is hearsay. Counsel places reliance in this regard on the cases of Southern Health Board v CH

[1996] IR 219 and by inference on the case of the State (D. and D.) v Groarke [1990] I I.R 305 and the case of the Eastern Health

Board v M.K and M.K [1999] 2 I.R 99. Counsel submits that it is a matter for the Court to accept or reject the evidence of the

Guardian Ad Litem. It was conceded that the Court must establish by way of a separate enquiry whether the children are competent

to give evidence and even if competent whether it is in their best interests to give evidence due to the risk of trauma by virtue of the

experience.

18. Counsel for the HSE submits that a more flexible application of the rules of evidence is permissible in proceedings under the Child

Care Act, 1991 because such proceedings are inquisitorial in nature and distinct from other types of civil cases. At paragraph 3 of

their submissions s/he cites the dicta of Mr. Justice O’Flaherty in the Southern Health Board v CH. S/he also refers to the

paramountcy principle which is statutorily embedded in Section 24 of the 1991 Act. It is their contention that the nature of the

proceedings fixes all parties with the duty of making full and frank disclosures to the Court.

19. Counsel for the mother submits that Southern Health Board v CH was decided before the 1997 procedure was enacted. It is their

submission that when the HSE seeks to admit hearsay testimony in evidence since that legislation became operational, it is required

to comply with the statutory regime set out in Section 23 of the 1997 Act. It is his/her contention that the Guardian Ad Litem is not

exempt from this statutory obligation and where reliance is placed on a statement made as a fact, the Guardian Ad Litem must also

firstly comply with the process set out in Section 23 of the 1997 Act.

20. The submissions of both the HSE and the Guardian Ad Litem assume that Child 1, Child 2, Child 3 and Child 4 although competent

should not give oral evidence either in person or under Section 21 of the 1997 Act on the basis that it would not be in the interest of

the welfare of any of these children to do so. Counsel for the HSE does not contend that this is because of any legal presumption

that a child should never give evidence. The process of enquiry outlined in Section 23 (1) has not yet been embarked upon by the

Court and evidence has not yet been heard as to whether or not giving evidence would be in the interests of the welfare of each of

the children. Equally it is not known at this time whether the mother seeks to contest the statements alleged to have been made by

the children, as the mother is out of the jurisdiction at this time.

Notice and Particulars of Statements

21. Counsel for the Guardian Ad Litem has filed in court an Application pursuant to Section 23 of the 1997 Act seeking to admit the

content of the GAL’s interviews with all of the children of the family who have been the subject of Orders under the Child Care Act,

1991 at various stages. The particular statements are identified by a Schedule setting out paragraph numbers referable to the GAL’s

Reports to Court during 2012 dated 15 March, 14 May, 8 June 12 and 13 July, 10 September, 7 November, 14 November, 12

December, and during 2013 by Reports dated 9 January, 16 January, 28 January, 15 February, 12 April, 3 July, 29 July, 8 October, and

17 October which schedule is attached to the Section 23 Application.

22. Counsel for the HSE accepts that the Guardian Ad Litem Reports in and of themselves are sufficient notice of the Statements

sought to be admitted as hearsay evidence grounding the Guardian Ad Litem’s opinion but Counsel for the mother rejects this

proposition.

23. Counsel for the Guardian Ad Litem makes eight separate points regarding the preconditions for the admissibility and admission of

hearsay evidence referenced in Section 23(1)(b) of the 1997 Act “in the interests of the welfare of the child” and 23(2)(a) regarding

“the interests of justice”. I do not propose to rehearse these points separately here save to note that these points are not conceded

by Counsel for the mother. Counsel for the HSE submits that while there is no presumption against a child giving evidence in the vast

majority of cases it is unlikely to be in the interests of their welfare to do so in child care proceedings. That said it is her contention

that the process outlined in Section 23 must be engaged in by the Court before reaching a determination in this regard.

24. Counsel for the Guardian Ad Litem also seeks to admit hearsay statements allegedly made by the other children of the family who

are not parties to or subjects of the current proceedings before the Court. This proposition is rejected by Counsel for the mother.

25. Counsel for the Guardian Ad Litem submits that notice of the statements to be admitted, by way of exception to the hearsay

rule, need not particularise the exact hearsay statements sought to be admitted. It is submitted that a global reference to

statements contained in the GAL’s Reports or summaries of evidence adduced is sufficient notice (per the State (D. and D.) v Groarke

[1990] 1 IR 305). It is contended that such notice is reasonable and practicable as Counsel for the mother has had all of the Reports

and is aware of the contents of same. It is also submitted on behalf of the Guardian Ad Litem that any statement omitted as to its

materiality is still admissible and it should be possible for the Guardian Ad Litem to address such admissions in the GAL’s oral evidence.

This proposition is not accepted by Counsel for the mother who states that the requirement of Section 23 is quite specific in this

context.

Timing of Application

26. Counsel for the Guardian Ad Litem submits that the Court cannot determine the matters set out in Section 23(2) in a vacuum and

that the exigencies of that section can only be addressed having heard all the evidence at trial and accordingly the application to

admit hearsay should be run by the Guardian Ad Litem when s/he is giving their evidence at Trial.

27. Counsel for the mother rejects this proposition and submits that his client’s fair procedure rights require the Guardian Ad Litem to

be specific as to the statements s/he seeks to admit as hearsay evidence, and further that only such Statements which relate to the

children which are the subject matter of the current proceedings should be admissible following a full enquiry process as set out in

Section 23.

28. Further submissions by Counsel for the Guardian Ad Litem regarding interim orders are not pertinent to the maters at issue in this

case at this time, and submissions as to the onus on a parent as a party to the proceedings have been conceded.

29. Substantial submissions and the authorities referred to therein have been furnished by all parties to the proceedings. Counsel for

the HSE has limited her submissions to Section 23(3) of the 1997 Act. Counsel for the mother has responded in detail to each

submission made by Counsel for the Guardian Ad Litem. I have also received oral arguments in support of those submissions.

Decision

Parameters of the Role of Guardian Ad Litem:

30. Section 26(1) of the Child Care Act, 1991 as amended enables the Court to appoint a Guardian Ad Litem for the child in any

proceedings under Part IV or VI of the Act where the child who is the subject matter of such proceedings is not a party to the

proceedings in his or her own right. The Court may make that appointment if it is satisfied that it is necessary in the interests of the

child and in the interests of justice to do so. The appointment is limited to the duration of the proceedings or the joining of the child

as a party to the proceedings whichever is the earlier.

31. Although Section 26 of the 1991 Act does not outline the role of the Guardian Ad Litem it is common case that the Guardian Ad

Litem brings the child’s wishes and views to the court, and also expresses a professional view as to what is in the child’s welfare. High

Court jurisprudence acknowledges that a Guardian Ad Litem has a dual role (per MacMenamin J. in the case of DK (Special Care)

[2007] IEHC 488, Birmingham J. in HSE -v- J.M & Anor [2013] IEHC 12 (Section 25 Mental Health) and Finlay Geoghegan J. in R.P -v-

S.D [2013] 1 I.L.R.M 196 (Article 11(2) of Council Regulation (EC) 2201/2003)).

32. Section 26(4) of the Child Care Act 1991 is clear that when a child has been made a party to the proceedings whether pursuant

to Section 25(1) or otherwise, then the Order under Section 26(1) appointing a Guardian Ad Litem for the child ceases to have

effect.

33. Section 25 of the 1991 Act enables a Court to join the child as a party to the proceedings where it is satisfied that having regard

to the age, understanding and wishes of the child and in the circumstances of the case that it is necessary in the interests of the

child and in the interests of justice to do so. The court may, if it thinks fit, appoint a solicitor to represent the child in the

proceedings and give directions as to the performance of his/her duties (which may include, if necessary, directions in relation to the

instruction of counsel). The solicitor must faithfully represent the instructions of the child rather than their own views when acting for

the child and may not give a view as to what he/she believe to be in the child’s best interests (A Guide to Good Professional Conduct

for Solicitors, 3rd edition, Law Society of Ireland, 2013).

Party Status for Guardian Ad Litem?

34. The Child Care Act 1991 Act is a purposeful statute which allows of a purposeful and schematic interpretation (per Western

Health Board v. K.M. [2002] 2 I.R. 493, McGuinness J.; H. S. E. -v- Mc Anaspie [2011] IEHC 47, Birmingham J., and DO’H v HSE [2007]

IEHC 175 Abbott J.). However, the Act must be read as a whole and every section must be construed with reference to the others. If

when so read the meaning of any particular section is clear and unambiguous then nothing further is required to interpret a Section of

the Act.

35. In the case of DK following the tragic death of a young person who was the subject of a special care order, a consensual enquiry

ensued in which submissions were made by all the parties to the proceedings with a view to ensuring that the procedure for the

implementation of detention orders of young person’s at risk worked more effectively for the protection of such young persons. The

Court very helpfully set out a summary of the submissions made by the parties for the assistance of practitioners. The Court was

clear that these were not directions.

36. Paragraph 59 (b) describes the function of the Guardian Ad Litem as being twofold; firstly to place the views of the child before

the court, and secondly to give the Guardian Ad Litem’s views as to what is in the best interests of the child. At paragraph (e)

reference is made to the Guardian Ad Litem as the child’s representative when communicating to the court regarding the child’s care

and the child’s views. The Guardian Ad Litem is not the legal representative of the child however, nor does a Guardian Ad Litem act

upon the instructions of the child.

37. The potential for conflicting obligations is uncomfortably palpable in the dual role of the Guardian Ad Litem where ‘welfare’ and

‘wishes’ diverge. If the Guardian Ad Litem were cast as a party to the proceedings instituted by the HSE it might result in an

impermissible trespass on a parent and /or a child’s individual rights under the Constitution and Article 6 ECHR (regarding fair

procedures).

38. Party status sits uneasily with the Guardian Ad Litem’s role as an independent neutral party appointed by the Court to represent

the wishes and views of the child and also to advise the court as to the child’s welfare, which may be quite different to the child’s

expressed wishes.

39. The role of the Guardian Ad Litem as amplified by Mac Menamin J. in the case of D.K. (a child) [2007] IEHC 488 (and the cases of

H. S. E. -v- WR. [2007] IEHC 459, and In the matter of S.S. (a minor) [2007] IEHC 189) relates to the role of a Guardian Ad Litem in

the context of an application to the High Court under the general jurisdiction of the High Court seeking a civil detention order in

respect of the child in circumstances where the life or welfare of the young person is truly at risk.

40. The case of FN v. CO [2004] 4 IR 311 Finlay-Geoghegan J. highlights that children have constitutional procedural rights to have

their views heard, if they are of sufficient age and maturity to be able to offer a view, and to have their welfare protected in any

disputes about custody.

41. The children in this case are now aged 17, 16, 15 and 13 years of age respectively and have individual views regarding the Orders

which the HSE seek in respect of them. These views may not necessarily coincide with what the Guardian Ad Litem believes to be in

their welfare. This Court has already considered the incongruity of this situation in light of the ages of the children in this case. It will

be recalled that the Court directed the Guardian Ad Litem at an earlier stage in these proceedings to engage with the children and

inform them that, if they wished to do so, they could express their views directly to the Court and they could also be joined as

parties to the proceedings have their own independent solicitor to represent their separate interests in these proceedings in lieu of a

Guardian Ad Litem. The Court was informed that each of the children wished to retain their Guardian Ad Litem to represent their

wishes and welfare even though their wishes conflicted with what the Guardian Ad Litem believed to be in their best interests.

Furthermore none of the children at that time wished to come to Court to express their wishes directly.

42. The prospective amending provisions of the Child Care (Amendment) Act 2011 (S.I. No. 19/2011) also purports to retain the

principle that a child is either joined as a party to the proceedings (with legal assistance where necessary) or has the benefit of a

Guardian Ad Litem with a dual function to express the child’s wishes and to express a view as to welfare, which may be in conflict

with those wishes. While the amending provisions, if implemented, would allow a Guardian Ad Litem to appoint a solicitor to represent

them this will not confer a party status on a Guardian Ad Litem as representative of the child.

43. I am not persuaded that the Guardian Ad Litem is afforded party status in Child Care proceedings, either in his/her own right (in

the context of the children’s welfare) or on behalf of a child (in the context of the child’s expressed wishes) either on a plain or

purposive reading of Section 26 of the 1991 Act as amended.

Role of Guardian Ad Litem

44. The 1991 Act is silent on many matters of considerable importance to the guardian’s role. These include the parameters of the

guardian’s role, the powers which they possess and the qualifications and experience required in order to act as a Guardian Ad Litem.

In the absence of a statutory definition on the role of a Guardian Ad Litem, both the Ryan Report (Report of the Commission to

Inquire into Child Abuse, 2009) and the 2007 and 2009 Report’s of the Children’s Rapporteur Dr. Geoffrey Shannon reference the

desirability of a Regulatory Body for Guardian Ad Litem’s in this jurisdiction; however there is as yet no statutory footing for the

Guardian Ad Litem apart from Section 26 of the 1991 Act and High Court and Supreme Court jurisprudence.

45. The Child Care (Amendment) Act, 2007, by substituting a new Section 227 in the Children Act, 2001 requires the CAAB to “Publish

guidance on the qualifications, criteria for appointment, training and role of any guardian ad litem appointed for children in proceedings

under the Act of 1991.”

46. The CAAB guidelines of May 2009 provide that the Guardian’s role is to “independently establish the wishes, feelings and interests

of the child and present them to the court with recommendations”. The Guidelines outline that a Guardian Ad Litem has a dual role, to

inform the court of the child’s wishes and feelings and to advise the court on the child’s best interests.

47. The standards of good practice set out at paragraph 1.2.1 of the Guidelines are unambiguous and clearly state that the Guardian

Ad Litem must recognise the HSE’s responsibility for the management of any case in which s/he is involved. This is also touched upon

in paragraphs 59 (j), (k), (l) and (m) in the DK case which expresses these obligations as duties owed to the Court.

48. A practice has evolved whereby the Guardian Ad Litem gives evidence at the conclusion of the case between the HSE and the

parent. It is not uncommon for the legal representative of the Guardian Ad Litem in the course of the proceedings to seek to cross

examine the parties to the proceedings as if the Guardian Ad Litem were also a party to the proceedings. Where the case being made

by the HSE is aligned with the views expressed to the Court as being in the Child’s best interest, the Guardian Ad Litem’s evidence is

sometimes taken directly after the evidence adduced by the HSE in the interests of fair procedure. It is a matter for the Court to

ensure that the sequence of the proceedings is fair to all parties in the particular case before the Court.

49. Guardian Ad Litem reports commonly contain important information gathered from collateral sources—family members, public health

nurses, teachers, and GP’s who provide valuable insight to the court as to a child’s welfare. Such information is typically considered to

be “hearsay” since it consists of out-of-court statements proffered as facts. However it also represents the work product of the

Guardian Ad Litem in the discharge of his/her statutory role to provide the court with their opinion as to the best interests of a child.

50. The Guardian Ad Litem like any other witness is not immune from error in observation or from inadvertent bias. Any party to the

proceedings may seek to challenge the accuracy or contextual relevance of such statements or may seek to adduce independent

evidence.

51. For all of these reasons the DMD Practice Direction at paragraph 8.3 requires such information to be properly identified as hearsay

within the body of the Report. The DMD Practice Direction also requires reports to be furnished in sufficient time to facilitate such

examination in advance of the application to court.

Guardian as Expert?

52. Section 27 of the 1991 Act enables the court, of its own motion or on the application of any party to the proceedings to procure

a Report from such person as it may nominate on any question affecting the welfare of the child. In this context the Court may

consider the views of the parties, but is not bound by them. The Guardian Ad Litem in not an expert in this context. The Guardian ad

Litem is the nominated and suitably qualified party required by the Court to undertake the role of Guardian Ad Litem. The Order is

made by the Court when it is considered to be necessary in the interest of the child and in the interest of justice to appoint a

Guardian Ad Litem.

53. The DMD Practice Direction outlines its expectations of a Guardian Ad Litem nominated by the court in these matters (at

paragraphs 4, 4.1, 4.2. 4.3, 7.3, 8.3 and 9.4) any party seeking to introduce hearsay statements of a child are required at paragraph

14.5 (b) to file a notice of application pursuant to the requirements of Sections 21- 23 of the 1997 Act.

Hearsay Evidence

54. The role and function of evidence within proceedings under the Child Care Act is shaped by the characteristics of those

proceedings. The principles appear to be as follows:

a. Articles 41 and 42 of the Constitution are relevant to the position of the family and the personal rights of each

member of the family (per In re The Adoption (No2) Bill 1987 [1989] IR 656 (The State (Nicolau) v An Bord Uchtála

[1966] IR 567 and G v An Bord Uchtála [1980] IR 32). Examples of circumstances justifying such exceptional

intervention were outlined in The North Western Health Board case (PKU case) and these included: an immediate

threat to the health or life of the child (per Denham J. as she then was); a degree of parental neglect constituting

an abandonment of the child and all rights in respect of him (per Murphy J.); an immediate and fundamental threat

to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from

an exceptional dereliction of parental duty (per Murray J.).

b. Also relevant are Articles 6 and 8 of the ECHR (per Keegan v Ireland (1994) 18 EHRR 342) and the Charter of

Fundamental Rights of the European Union. Though not directly applicable, the Convention on the Rights of the Child

has been ratified and can therefore be of assistance indirectly in these matters (per McD v L & Anor [2007] IESC

81).

c. The welfare or paramountcy principle is statutorily embedded in Section 24 of the 1991 Act. It is suggested that

this creates an inclusory aspect to evidence in child care cases. It is suggested by the Guardian Ad Litem that all

evidence (including hearsay evidence) which bears on the welfare of a child is admissible and it is then a matter for

the court to consider the cogency and weight to be attributed to that evidence. I accept this position in broad

terms in the context of welfare where there is no dispute as to the accuracy of the information. However the

question of the legitimacy or otherwise of State intervention must first be established by the HSE using the relevant

threshold criteria set out in the 1991 legislation, and in this context the rules of evidence are part of the

constitutional protection which a parent and child are entitled to. This is acknowledged within Section 24 of the

1991 Act which notes that regard must be had to the rights and duties of parents, whether under the Constitution

or otherwise.

d. The inquisitorial nature of child care proceedings requires the court to conduct an inquiry by a process which is

fair to all parties. In K.A. v Health Service Executive & Ors [2012] IEHC 288 O’Malley J. was clear that the normal

rules require that courts act on evidence and that parties applying for an order must establish grounds for the

making of the order.

e. Bringing the proceedings and establishing the required threshold criteria for State intervention is a matter for the

HSE who must establish facts in dispute on the balance of probabilities. The pivotal parts of the 1991 Act permit

State intervention in exceptional cases to protect a child and these parts of the 1991 Act are reserved to the HSE

as the moving party. The Constitutional and legislative structure for HSE Intervention in a family involves a careful

balance of conflicting rights (per North Western Health Board v H.W [2001] IESC 90). The Eastern Health Board and

MK highlights that there are many exceptions to the hearsay rule and the rule and its exceptions are not set in

stone. However that does not exclude the exercise of due process and the protection of constitutional rights.

f. Unlike England and Wales, there is no inclusory rule of evidence built into the Child Care Act, 1991. Care must be

taken when considering jurisprudence from England and Wales in the matter as the Constitutional and Statutory

framework permitting children to be taken into care is different in each jurisdiction. (See; T. (D.) v. T. (C.) [2002]

IESC 68 (14 October 2002). The relevant threshold for intervention in this case is outlined in Section 18 of the 1991

Act and this section carefully imports the standards set out in Article 42 (per North Western Health Board v. W.

(H.) [2001] IESC 90). Where hearsay evidence is sought to be introduced to establish such threshold then the 1997

Act is the correct procedure to be employed in that regard.

Section 23 Children Act, 1997 Notice

55. It will normally be a matter for the HSE to serve a Section 23 Notice, as it is the HSE who must establish the Constitutional and

statutory threshold in child care cases.

56. Statements made by a child to the Guardian Ad Litem or any other person may form part of the evidence relevant to threshold

and in such circumstances a Section 23 notice is required to be served on a party or parties in the proceedings in a manner which is

reasonable and practicable in the circumstances for the purpose of enabling such party or parties to deal with any matter arising from

it being hearsay. A level of flexibility is provided by Section 23(4) where the parties concerned agree that formal notice is not

required.

Timing of Application

57. I am satisfied that the court must conduct an enquiry under Section 23 of the 1997 Act to ascertain whether or not the child is

unable to give evidence by reason of age or because of giving such evidence (even though video link) would not be in the interests of

the welfare of the child.

58. The Court cannot proceed to hear all the evidence de bene esse and come to a determination as to whether the evidence should

be admitted or not at the hearing of the action as this would be an unfair process (per Denham J. as she then was) in the case of

Eastern Health Board v MK.

59. Having undertaken the enquiry provided under Section 23(1) and determined that hearsay statements are admissible the court

must go on to consider the matters set out in Section 23(2) and determine whether any statements deemed admissible shall be

admitted or not. The court must consider all the circumstances, including the risk that the admission of some or all of the statements

would result in unfairness to any of the parties to the proceedings (per HSE and EL and AL [2013] IEDC 4).

60. Section 24 provides that if a child’s statements are considered to be admissible at the conclusion of the enquiry set out in Section

23(1), and the court has made a determination, having considered the factors set out in Section 23 (2) (a) and (b), to admit all or

part of such statements as part of the evidence, the Court must then go on to attribute the weight, if any, to be attached to such

statements having considered the factors set out in Section 24 (2).

The Guardian Ad Litem and Section 23 Children Act 1997 Notice

61. If the HSE seek to adduce statements made to a Guardian Ad Litem as part of their evidence it must call the Guardian Ad Litem

to give that evidence and they must also serve a Section 23 Notice in respect of each statement sought to be admitted. The

statements sought to be admitted must be clearly identified as provided by Section 23 (3) (b).

62. As it is the role of the Guardian Ad Litem to present the views and opinions of the children in this case to the court. It is generally

not necessary to require the Guardian Ad Litem to serve a notice in order to have statements expressing those views formally

admitted as evidence before the court pursuant to Section 23 of the 1997 Act.

63. Circumstances may arise from time to time where statements allegedly made by a child to a Guardian Ad Litem are disputed by

one or more of the parties to the proceedings and the Guardian Ad Litem seeks to rely on such statements as evidence in connection

with an application under Section 22, 37 or 47 of the 1991 Act. In such circumstances the Guardian Ad Litem is required to serve

Notice under Section 23 detailing any such statements intended to be relied upon.

64. Although the Guardian Ad Litem is not a party to the proceedings, a fair procedure process is an essential requirement in child

care proceedings before the Court can determine whether hearsay statements are admissible, whether they should be admitted, and

if admitted what weight the Court will attribute to them. The question of relevance also arises at every stage and in relation to every

piece of evidence. The interests of justice to all parties are relevant issues and hearsay evidence has to be handled carefully with

due consideration to the extent that it can be relied upon.

65. The Notice served by the Guardian Ad Litem in this case highlighting paragraphs of the Guardian Ad Litem Reports is not adequate

as the paragraphs referenced in the schedule do not appear to identify all such statements of the children, and the oral submissions

on behalf of the Guardian Ad Litem suggested that statements not so identified would also be relied upon though unidentified in the

Section 23 Notice filed. It is submitted by the Guardian Ad Litem that it would be too onerous to extract all statements intended to

be introduced as “hearsay” statements as it would require time to “cut and paste” from every Guardian Ad Litem Report filed. This is

not accepted.

66. A Section 23 application maybe made in respect of any of the children of the family and it is a matter for the court to determine

whether to admit such statements or part of such statements or not having considered the risk of unfairness to any of the parties to

the proceedings in the light of all the circumstances.