District Court admits hearsay statements from a 15-year-old child under Section 23 Children Act 1997 to protect welfare.

[2013] IEDC 4

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

EL & AL

RESPONDENTS

CHILDREN ACT 1997 — SECTION 23

IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3, CHILD 4

5 February 2013

1. In an application to extend interim care orders pursuant to section 17(2) of the Child Care Act 1991 (the 1991 Act) in respect of

the subject children, the HSE and the Guardian ad Litem (GAL) respectively brought applications pursuant to section 23 of the

Children Act 1997 (the 1997 Act) to admit hearsay evidence of Child 1, who is 15 years of age.

2. Both applications were made on Notice to the parties and heard by the Court on 5 February 2013.

3. The Notice issued by the HSE included a schedule of statements made to the Social Worker by Child 1 on 23 and 24 January 2013.

4. The Notice issued by the GAL included a schedule of statements made to the GAL by Child 1 on 22 January 2013.

5. The Court heard the submissions on behalf of the HSE and the evidence of the Social Worker in support of their application. These

can be summarised as follows:

(i) that it would not be in the interests of the welfare of Child 1 to give direct evidence in this case as it would

significantly impact on Child 1’s emotional wellbeing and cause her distress and upset and that it would likely cause

damage to the already fragile relationship between Child 1 and her mother;

(ii) that this evidence is necessary in the interests of the welfare of the child;

(iii) that taking evidence by video-link or with other conditions imposed by the court would not protect Child 1’s

welfare in this case;

(iv) that allowing this statement into evidence would not give rise to prejudice to the respondent mother.

6. The Court heard the submissions on behalf of the GAL and the evidence of the GAL in support of the GAL’s application. These can

be summarised as follows:

(i) that it would not be in Child 1’s best interests to attend and be cross-examined in Court;

(ii) that section 23 offers the court a wide discretion to allow evidence of this kind in this way;

(iii) the GAL’s role is to represent to the court the views and the opinion of children and in the ordinary course of

proceedings does not need to prove what he has been told unless this goes beyond the representation of views and

opinions and strays into the area of evidence.

7. Counsel for the respondent mother argued that Child 1 is competent to give evidence, that the respondent mother has a

fundamental right to cross-examine and test the evidence and that allowing this hearsay evidence could result in adverse

consequences to the mother. Counsel argued that the evidence of the child in this case could be given by way of video link and

subject to conditions imposed by the court to safeguard the child’s interest and welfare.

8. Counsel for the respondent father submitted that Child 1 should not be called as it would not be in her best interests and that the

statements should be admitted as evidence.

9. In considering the application by the applicant HSE, I must consider that the HSE has a duty to satisfy the court that there is

reasonable cause to believe the child has been assaulted, abused, ill-treated or neglected or that the child’s health development or

welfare has been, is being or is likely to be avoidably impaired or neglected. In this instance the HSE seeks to extend an interim care

order, and must satisfy the court that there is reasonable cause to believe such circumstances continue to exist and that it is

necessary for the protection of the children’s health or welfare to so do. Where the HSE intends to rely on the evidence of a child in

such proceedings by way of statements made to a third party and where the HSE does not intend to call the child as a witness in the

usual manner then an application for admitting such hearsay evidence will be required to be brought to the court subject to section

23 of the 1997 Act.

10. In considering the application by the GAL, I accept that it is the role of the GAL to present the views and opinions of the children

to the court, which statements would not in the usual course require the making of application for such statements to be admitted

before the court pursuant to section 23 of the 1997 Act. However, exceptional circumstances may arise from time to time where

information and statements will be made by a child to a GAL and which the GAL should properly bring before the court as evidence of

assault, abuse, ill-treatment or neglect or of instances where the child’s health development or welfare has been, is being or is likely

to be avoidably impaired or neglected. In such exceptional circumstances, an application for admitting such hearsay evidence will be

required to be brought to the court subject to section 23 of the 1997 Act.

11. Section 23 permits the inclusion of hearsay evidence of a child subject to the procedures (notice and particulars of statements)

and enquiries (consideration of the child’s age or interest of welfare, the interests of justice, risk of unfairness to the parties and all

the circumstances) set out in the section and quoted here in full.

“ (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.”

12. I am satisfied in this case that the notices served and the schedule of the statements satisfy the requirements of section 23(3)

of the 1997 Act. I am also satisfied that the court has carried out a proper enquiry as required by section 23 (2) and (3). With regard

to the applications before this court in this case, the questions the court must consider are:

(i) is it in the interests of the welfare of the child not to be required to give oral evidence, and;

(ii) if the statements or any part of the statements are to be admitted will it cause an injustice in this instance to

the respondent mother?

13. With regard to the HSE’s application, I am satisfied on the submissions and evidence before the court in considering the question

of the interests of the welfare of the child and the court’s duty under section 24 of the 1991 Act that the court must regard the

welfare of the child as the first and paramount consideration that the HSE has established that it would not be in the interests of the

welfare of the child to be called to give evidence during these interim proceedings having regard to the threshold requirement set out

in section 17 of the 1991 Act. In considering if the statements are to be admitted, if it will cause an injustice to the mother, I am

satisfied again on the submissions and evidence before the court that the interests of the welfare of the child outweighs any

potential injustice to the mother in this instance. Having considered the evidence and submissions and in the interests of the child I

will admit the statements as set out in the schedule in their entirety.

14. With regard to the GAL’s application, I am satisfied on the submissions and evidence before the court in considering the question

of the interests of the welfare of the child and the court’s duty under section 24 of the 1991 Act that the court must regard the

welfare of the child as the first and paramount consideration that the GAL has established it would not be in the interests of the

welfare of the child to be called to give evidence during these interim proceedings having considered the threshold requirement set

out in section 17 of the 1991 Act. In considering if the statements are to be admitted, if it will cause an injustice to the mother, I am

satisfied again on the submissions and evidence before the court that the interests of the welfare of the child outweighs any

potential injustice to the mother in this instance. Having considered the evidence and submissions and in the interests of the child, I

will admit the statements as set out in the schedule in their entirety.

15. In considering the weight to attach to the statements as required by section 24 of the 1997 Act, I have considered the following:

(i) that the statements were not contemporaneously made (the statements largely concerning an incident which

occurred on 17 January 2013 and made by Child 1 to the Social Worker on 23 and 24 January 2013 and to the GAL

on 22 January 2013);

(ii) that the statements did not involve multiple examples of hearsay;

(iii) that the motive to misrepresent or conceal here appears to be low;

(iv) that the statements are an edited account in collaboration with the Social Worker and the GAL respectively;

(v) that the circumstances do not suggest an attempt to prevent a proper evaluation of the weight of the

evidence.