Court refuses HSE exemption from disclosing abuse allegation to mother to protect children's welfare.

[2013] IEDC 9

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

M, X & THE GAL

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 49

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

25 March 2013

1. This is an application under section 47 of the Child Care Act 1991 (the 1991 Act) by the Health Service Executive (the HSE) asking

the Court to make an order granting an exemption to the HSE from disclosing to M the first named Respondent that portion of the

social work file relating to an allegation of sexual abuse made by X (a young man in the care of the HSE but not related to these

proceedings) against M, the Respondent mother of four children, three of whom are currently in the care of the HSE.

2. On 27 February 2013 the District Court judge hearing the case agreed with the position of the Guardian ad Litem (GAL) that it was

proper for the Court to know of the allegations made by X and decided the information was relevant to the care order proceedings.

The judge proceeded to join X as a third party to these section 47 proceedings only. The judge later recused himself from

adjudicating this matter.

3. In April 2012, X disclosed and alleged that he had been sexually abused by M, the mother of two children also in care and residing

in the same residential unit as X. At this time these two children of M continue to reside in that residential unit; Child 1 who is

currently residing there in an after care arrangement, and Child 2 who is the subject of a care order to age 18.

4. M is also the mother of two other children, Child 3 and Child 4, who continue to be subjects of interim care orders under section 17

of the 1991 Act. The Court has been told it is not the HSE’s intention to seek a further extension of the interim care orders in respect

of Child 3 and Child 4 on the expiration of the current orders on the 10 April 2013. The Court has been advised that it is the HSE’s

intention to reunify Child 4 with M on that date and that from that date Child 3 will be placed in a voluntary care arrangement by M

pursuant to section 4 of the 1991 Act and he will be placed in a kinship placement.

5. X is now a 17-year-old young person in the care of the HSE. X has had a very difficult childhood and history in care. X has a

significant history of mental health difficulties that have resulted in suicidal ideation, self-harm, and at least 7 suicide attempts. The

Court has heard evidence that X’s response to external stressors negatively impacts his mental health and is likely to lead to further

suicidal ideation or even perhaps further attempts at suicide. The Court has been told of X’s fears for his own safety and the safety

of his girlfriend and their child posed by the risk of reprisal from M’s older children (Child 1 and Child 2) if they become aware of his

allegation against M. X does not want to do anything with the allegations and does not wish to withdraw the allegations.

6. This is the HSE’s application under section 47 of the 1991 Act for leave to allow a limited portion of material held on social work

files to be exempted from disclosure to M. The HSE suggested this material is potentially adverse to M and in the usual course of

events the HSE would disclose such material to M. However, in the current circumstances the HSE does not intend to rely on the

disclosures of X in making its decisions for the care of M’s two younger children (Child 3 and Child 4); the HSE has considered the

allegations and has assessed that even if they are assumed to be true the allegations do not impact on the plans for M’s children. The

HSE is satisfied that even if the allegation against M by X is true it does not impose a risk to M’s children beyond M’s addiction

difficulties.

7. The allegations have been disclosed to all parties’ legal representatives and the legal representatives for M ordered not to disclose

the information to M.

8. Counsel for the HSE suggested the issues here are can the Court or any of the parties have regard to these allegations of X

against M without disclosure to M, and, should the Court have regard to the rights of X in its consideration of these proceedings?

Counsel suggested the risk to X if the information is disclosed is the real risk of his suicide, the likely to exacerbation of X’s mental

health difficulties as X has a history of several attempts on his own life in the past, and also the risk to X from M’s oldest child, Child 1

(now an adult), if he learns of the alleged incident. The HSE did not call X to give evidence. Counsel further advised that it is the

HSE’s intention to withdraw the section 18 Care Order applications on the 10 April 2013 and not proceed to seek further Interim Care

Orders for Child 3 and Child 4 provided M continues to abstain from drug and alcohol use.

9. Counsel for M argued that in this matter the Court should consider 3 issues:

i. Is the allegation relevant? Counsel acknowledged this has already been determined by the initial District Court

judge, but raises the question: is there anyone who wants to prove the allegation? If no one wants to prove it, she

argues, it is not relevant.

ii. If the allegation is relevant then is it relevant to the proceedings? Counsel for M noted that on 10 April 2013, the

HSE will be withdrawing its section 18 application for Care Orders in respect of Child 3 and Child 4 and the Interim

Care Orders in respect of Child 3 and Child 4 will expire. Counsel agued this is a purely academic exercise.

iii. Counsel for M further argued that this section 47 application pertains to M’s children only and therefore has to

touch on their welfare, but this application is prompted by the welfare of X. She argued this is not the forum to

protect the interests of X as this Court is dealing with the rights of M’s children. Counsel argued that the HSE is

asking the Court to act outside of its jurisdiction and that X needs to be protected elsewhere.

10. Counsel for the GAL stated the allegation made by X against M is relevant for consideration by this Court and should impact on

M’s children and the HSE’s plans for the children, either by slowing down the reunification plan or stopping it altogether. Counsel noted

the GAL is appointed pursuant to section 26 of the 1991 Act and considers the welfare of M’s children to be paramount. Counsel for

the GAL advised the GAL is reluctant to participate an argument of the hierarchy of rights, and finds M’s third issue/argument

persuasive and noted that the GALs only role is in relation to M’s children.

11. Counsel for X argued that this application raises matters of fundamental importance to X; that X’s right to life, his right to privacy

and his right to bodily integrity are engaged. Counsel further argued that if the HSE is not proposing to do anything with the

information then there is no need for these proceedings, if the information is not relevant and if there are no proceedings then there

is no need for this application. Counsel pointed out the Court of its own motion cannot extend an Interim Care Order, grant an Interim

Care Order, or grant a Care Order. Counsel further argued that X’s welfare is relevant to these section 47 proceedings as X is a party

to these proceedings, X’s protection is at issue in these proceedings and this Court must have regard to X’s constitutional rights to

life, privacy and bodily integrity and his European Convention on Human Rights (ECHR) rights.

12. I have decided that as Child 2, Child 3 and Child 4 are currently in care and their welfare must be considered and allowed the

application to proceed.

13. Counsel for the HSE argued that the Court has the power to limit disclosure, but the question here is; has the Court power to

order non-disclosure to protect the rights of a third party child? Counsel referred to the case of Re M (Disclosure) [1998] 2 FLR 1028

which case decided all evidence must be equally available to all parties in a court hearing save in an exceptional case where

disclosure can be refused and referred to the guidelines set down by Lord Musthill, however, Counsel noted this decision relates to a

child the subject of proceedings. Counsel further referred to the more recent UK case of In the matter of A (A Child) [2012] UKSC 60

where the UK Supreme Court considered third party rights and decided the Court can have regard to the interests of a third party. In

that case, the UK Supreme Court first having considered that at common law there is no jurisdiction to withhold information by

reference to a third party but which suggests in its consideration of ECHR rights, non-disclosure is permissible with regard to third

parties and that the Court can have regard to third party rights.

14. Counsel for the HSE further argued that the Court must exercise its functions in accordance with the Constitution, therefore the

Court must have regard to the constitutional rights of X. Counsel referred to the case of William Coughlan v Judge Patwell & DPP

[1990 No. 207 J.R.] where the High Court determined that the District Court acts in accordance with the Constitution and must pay

due regard to the Constitution and the rights there under and whose duty is to preserve the individual constitutional rights of all

persons. Counsel argued this Court cannot exercise its function without regard to the Constitution and that the Court has already

recognized X as a party to these section 47 proceedings. Counsel for the HSE accepted there are no constitutional rights that are

absolute and accepted M’s right to due process and a fair trial, but argued that here the HSE does not intend to rely on the

statements of X and that in the hierarchy of rights the right to life takes priority to the right to a fair trial. Counsel suggested similar

arguments can be applied with regard to X’s ECHR rights. Counsel argued here that there are two questions for the Court; can the

Court have regard to X’s rights; and on the evidence is the risk to X sufficient to justify the Court taking the exceptional measure of

permitting nondisclosure and suggested the answer to both questions is, yes.

15. Counsel for X agreed with the already stated duty of the Court to act constitutionally and argued that X is properly before this

Court pursuant to section 25 of the 1991 Act which states:

“(1) if in any proceedings under Part IV or VI the child to whom the proceedings relate is not already a party, the

court may, where it is satisfied having regard to the age, understanding and wishes of the child and the

circumstances of the case that it is necessary in the interests of the child and in the interests of justice to do so,

order that the child be joined as a party to, or shall have such of the rights of a party as may be specified by the

court in, either the entirety of the proceedings or such issues in the proceedings as the court may direct. The

making of any such order shall not require the intervention of a next friend in respect of the child.”

Counsel further referred to IO’T v B [1998] 2 IR 321 where the court determined that if rights are to be balanced the right to life must

prevail. Counsel further argued that section 24 of the 1991 Act states:

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

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

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

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

the child.”

Counsel argued this section 47 application relates to X as X is a child in the care of the HSE and ultimately in the care of the District

Court and that X falls within the protection of section 24 which refers to any proceedings not just Part IV or VI proceedings. Counsel

argued that X is before the Court and the Court can regard X’s constitutional rights. Where there are two sets of children, both in the

care of the HSE, both sets’ rights have to be balanced the right to life must override fair procedure rights. The Court’s decision must

be proportionate between the two sets of children and the mother. The Court must bear in mind the reality of the situation and

should not give its decision before 10 April 2013.

16. Counsel for M argued that the application before the Court under section 47 relates to M’s children. The clear understanding is

that X is joined to the section 47 proceedings as a notice party. Counsel for M argued the District Court must act constitutionally

within its functions conferred by section 47 in relation to M’s children and that the District Court does not have an inherent

jurisdiction to make determinations in relation to X. Counsel for M argued that the case of Coughlan v Patwell (referred to above)

states that the District Court must act constitutionally in the exercise of its functions and protect the rights of people before it i.e.

the subject matter of the proceedings. Counsel further argued the UK case law is not relevant in the way suggested, as the European

Convention on Human Rights Act 2003 (the 2003 Act) at section 3 does not include the Court as an organ of the state therefore the

Courts obligation is under section 2 of the 2003 Act which states that:

“(1) [i]n interpreting and applying any statutory provision or rule of law, a court shall, in so far as possible, subject

to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s

obligation under the Convention provisions.”

Counsel argued that section 2 means that the value of UK case law is diminished to the point where it is not applicable nor does it

give this Court the power to amend legislation. Counsel referred to the case of Dublin City Council v Gallagher [2008] IEHC 354 where

the High Court determined that section 2 does not allow a court to read more into a section to make it Convention compliant and

suggested this Court is being asked to read more into section 24 than is actually there. Counsel contrasted section 24 with section 23

of the Children Act 1998 which gives the Court the discretion to admit hearsay evidence of any child and further argued there are

other forums the HSE could have pursued to vindicate X’s rights. Counsel disagreed that X was joined as a party under sections 25

and suggested instead that X was joined as a notice party under section 47 of the 1991 Act.

17. Counsel for the GAL noted that in the preliminary application prior to this section 47 application, the GAL was of the view that the

information is relevant to the return of the children. She advised that the GAL will not trespass on the role of the Court in balancing

the rights of X and has no statutory authority to do so. She recognised the HSE has a duty pursuant to section 3 of the CCA to

consider all of the children in its care and noted that M’s child, Child 2 is in the care of the HSE to age 18 and that is planned for Child

3 to be placed in a voluntary care arrangement with the HSE pursuant to section 4 of the 1991 Act. She noted the GAL’s role is clear

and he does not have jurisdiction to carry out inquiries; it is open to the Court to compel or request that enquiry into the allegation.

18. In this case, I must consider firstly whether or not this Court has jurisdiction to take X’s rights and welfare into consideration. The

initial District Court judge has already decided to join X to these section 47 proceedings as a third party. Counsel for X has argued

that X’s rights and welfare are therefore engaged by joining X as a third party to these proceedings. Counsel proceeded to lodge in

Court on the second day of this hearing a separate section 47 application on behalf of X seeking an order directing neither of the

respondents be authorised to disclose to M directly or indirectly, (in any proceedings under the Child Care Act 1991 or otherwise), the

identity of X, the allegations made by X on various dates in April 2012 of a sexual assault perpetrated on him by M and the status of

any investigation into same or any steps taken within the said investigation and also for an order making X a party to this application

further to section 25 of the 1991 Act. Counsel for X suggests that X was joined to these proceedings pursuant to section 25 of the

1991 Act. However, it is not clear from the record of the initial judge’s order under which section of the 1991 Act X was joined to

these proceedings. In the absence of any other indicator of the initial judge’s intention as to the manner in which X was joined to

these proceedings, I will treat X as being joined to these proceedings under section 47 of the 1991 Act which section states:

“[w]here a child is in the care of a health board, the District Court may, of its own motion or on the application of

any person, give such directions and make such order on any question affecting the welfare of the child as it thinks

proper and may vary or discharge any such direction or order”.

I am satisfied that joining X as a third party to the proceedings allows this Court to take into consideration X’s welfare pursuant to

section 24 of the 1991 Act and also to consider X’s constitutional rights as recognised by O’Dalaigh CJ in In Re Haughey [1971] IR

217, 264 and referred to in Coughlan V Patwell at page 39 that:

“in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his

person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as

proceedings which may affect his rights, and in compliance with the Constitution the State, either by its

enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned

from vindicating these rights.”

19. I am satisfied, therefore, that this Court has a duty to consider X’s welfare and Constitutional rights, together with welfare of M’s

children and the Constitutional and ECHR rights of M and M’s children, in determining whether or not the allegation of abuse X made

against M should be disclosed to M. Furthermore, I am satisfied that as X’s welfare and Constitutional rights are engaged pursuant to

section 47 (which gives the Court a wide discretion as recognized in EHB v McDonnell [1999] 1 IR 74), this also allows the Court to

properly consider X’s ECHR rights. Section 2 of the ECHR Act 2003 requires the Court to interpret any statutory provision “in so far as

possible… in a manner compatible with the State’s obligation under the Convention provisions” and which can be distinguished from

Dublin City Council v Gallagher where the court’s function was confined by a narrower statutory provision. So I consider that X’s

welfare and Constitutional and Convention rights are engaged and must be balanced with those of M and all of M’s children, the

subjects of this section 47 application. Furthermore, I am satisfied that the consideration given to the recognition of third party rights

in In the matter of A (A Child) can properly be considered as persuasive in this case.

20. Having decided that this Court has a jurisdiction to consider X’s welfare and rights, the second question I must address is the risk

to X if this allegation is to be disclosed to M. In addressing this question, I have heard the evidence of the Manager of the Residential

Unit, the Psychotherapist, the Consultant Clinical Psychologist, the Social Worker for X, the Manager of the second Residential Unit,

and the Social Worker for M and her family. From the evidence I have heard, X has been described as a young man with a difficult and

troubling history which has resulted in his inability to manage stress and who responds to external stressors through suicidal ideation,

self harm and on at least 7 occasions attempting to take his own life. I have heard evidence from staff at his residential centre, his

social worker and a counselor that X has repeatedly stated he will attempt to harm himself if any mention of his allegation is made to

M. He has stated to these personnel and a clinical psychologist that he fears the risk to his own safety and the safety of his child, his

girlfriend, and her mother from M’s older two children if they become aware of the allegation he has made regarding M. I have also

heard from the consultant clinical psychologist and the staff in X’s residential placements of the interventions that have been

implemented in the past in preventing X from successfully taking his own life, but which have not prevented him from making attempts

on his life. I have also heard evidence from X’s social worker that X is aware of these proceedings and from the consultant clinical

psychologist that X is not at this stage in time suicidal and is capable of being helped but who points out we are not dealing with a

typical 17 year old and has formed the opinion X remains highly vulnerable and unstable with an ever present risk of suicide or self-

harm. I have also heard evidence of the social worker for M’s children that the risk X fears from M’s two older children is a real risk

due to their history of protecting M.

21. Having considered the evidence, I am satisfied that X’s history has resulted in X presenting as a young man with a fragile

psychological make up and who is extremely vulnerable to external stressors and who is unstable with an ever present risk of suicide

or self harm. I am also satisfied that X’s vulnerability is treatable and a network of supports have been, and continue to be, available

to him, but his psychological make up makes it difficult for X to engage with such treatments. With regard to the risk to X from M’s

two older children while I am satisfied X perceives a potential threat from them should his allegation be disclosed to M, I am not

convinced on the evidence before me that there are substantial grounds for concluding such a threat actually exists. Therefore, I

must conclude the risk to X’s should his allegation be disclosed to M is the risk to his stability and subsequent increase in his risk of

suicide.

22. Counsel for the GAL has suggested that the evidence of the risk to X should have been preceded by an application under section

23 of the Children Act 1998, however, I am satisfied the evidence given by each of the witnesses can be considered expert evidence

of the risk to X and therefore can be allowed for the purpose of these proceedings.

23. The third and final question I must consider is whether the risk to X sufficient to justify the Court granting an exemption to the

HSE from disclosing to M that portion of the social work file relating to X’s allegation. Counsel for the HSE and Counsel for X both

suggest the effect of disclosure of the allegation alone would reach the minimum level of severity to violate X’s rights to life, privacy,

and bodily integrity. I am satisfied that the general rule is that there ought to be full and timely disclosure between the parties of

matters that may ultimately affect the decision of the Court and that there is an in extremis jurisdiction to direct otherwise in the

best interests of the child and having regard to the welfare of the child as the paramount concern. I am satisfied that X’s right to

privacy alone would not justify making an order for non-disclosure and consequent interference with M and her children’s right to fair

procedures and the welfare interests of M’s children.

24. In balancing X’s rights, it is also necessary to consider the rights of M and those of her children, the subjects of these

proceedings. There is M’s right to fair procedures to consider, which includes her right to know of the allegation made against her, the

right to have such allegation properly investigated, the right to participate in the investigation and respond to the allegation, her right

to her good name and reputation and her right to have the investigation brought to a proper conclusion. There are also the rights of

M’s children to consider including their family rights and their welfare considerations under section 24 of the 1991 Act to have any

potential risk to them properly assessed and proper safety plans put in place.

25. In considering the balancing of rights in In the matter of A (A Child), Lady Hale considered the circumstances of the third party X

in that case which are similar to the circumstances of X in this case; in that case X made a disclosure, was suffering from a condition

arising from which disclosure alone potentially could adversely affect her health, her condition had deteriorated to such extent as to

be life threatening and disclosure could subject her to further stress with significant risk of further episodes of illness. In that case, X

was under the specialist care of a consultant physician and consultant psychiatrist who Lady Hale concluded would do their utmost to

mitigate any further suffering which disclosure may cause her. In that case Lady Hale noted as follows (at Para 30):

“[b]ut many of these informants will not be required to give evidence in order to prove a case, whether in criminal

or care proceedings, against the perpetrators of any abuse. Their information will simply trigger an investigation

from which other evidence will emerge. Their confidence can be preserved without harming others. In this case

however that is simply not possible. We do not know if A is at risk of harm from her father. But we do know of the

allegations, which some professionals think credible and which would at the very least, raise the serious possibility

of such a risk. Those allegations have to be properly investigated and tested so that A can either be protected from

any risk of harm which her father may present to her or can resume her normal relationship with him. That simply

cannot be done without disclosing to the parents and to the Children’s Guardian the identity of X and the detail and

the history of the allegations she has made”.

Lady Hale considered that the circumstances of that case did not meet the high threshold required for a violation of ECHR Article 3

rights and proceeded to dismiss the appeal and upheld the order for disclosure.

26. This high threshold applies in considering X’s Article 2 and 3 rights and it is reasonable to conclude a similarly high threshold

applies before this Court in balancing X’s right to life and bodily integrity against M and her children’s right to fair procedures and

welfare considerations. Following the facts and the decision of the UK Supreme Court in In the Matter of A (A Child), it would not

appear this high threshold has been met in this case. Here, X has made a serious allegation, is suffering from a psychological condition

to which disclosure alone may cause an adverse affect, his condition may deteriorate to such extent as to be life threatening and

disclosure could subject him to further stress with significant risk of self-harm or suicide. X was under the specialist care of a

consultant psychologist, which could be provided to him again and X has a network of supports through his social work and residential

placement, which addresses the positive duty to prevent a foreseeable loss of life, preserves his bodily integrity, and which does not

appear to satisfy the threshold of inhumane or degrading treatment.

27. The social worker for M’s children has given evidence that she has conducted an informal risk assessment of M in light of the

allegation by X using the Assessment of Children in Need framework but that no formal risk assessment of M has been carried out.

Counsel for the GAL has indicated to the Court the GAL considers the allegation to be relevant in considering the care decisions for

M’s children. Therefore, I must conclude that this allegation must be properly investigated so that M’s children can be protected from

possible harm and for M to be afforded fairness in dealing with the allegation.

28. Counsel for X suggests to make such a decision would not be proportionate as no further proceedings are envisioned, considering

the quality of the disclosure and considering the benefit of disclosure will be minimal and he suggests the HSE has conducted a proper

investigation of the allegation. I must disagree with this argument as three of M’s children remain at this time in care, two of whom in

any event will continue to remain in care and under the ultimate responsibility of this Court. It is the clearly stated plan to return her

youngest child to M’s care in the very near future, therefore the benefit of disclosure and investigation cannot be considered to be

minimal. As regards the assertion that the HSE has conducted a proper investigation of the allegation, I find this cannot be considered

so in circumstances where M is not aware of the allegation and has been afforded no opportunity to participate in the investigation. I

do not feel it is appropriate for this Court to comment on the quality of the disclosure made by X at this time.

29. In conclusion, therefore, I must refuse the HSE’s application for an exemption from disclosing to M that portion of the social work

file relating to an allegation of sexual abuse made by X against M, and X’s section 47 application also in its entirety. Furthermore the

Court of its own motion directs:

(i) the HSE to immediately put in place a safety plan and provide all necessary supports including psychological and

psychiatric supports to X to assist him in dealing with the consequences of the disclosure of this information to M;

(ii) the HSE to conduct a proper investigation of the allegation made by X;

(iii) the HSE to review its care plans for the three children of M who remain at this time in care, conduct a formal

risk assessment for the children and implement proper safety plans for the children.