Court allows judge-child meetings in care proceedings to assess welfare, balancing child interests against fair trial rights.

[2014] IEDC 13

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

Applicant

-and-

DE

Respondent

SECTION 23 OF THE CHILDREN ACT 1997

AND

SECTION 18 OF THE CHILD CARE ACT 1991

IN THE MATTER OF A, B AND C, CHILDREN

19th September, 2014

Proceedings

1. Interim Care Orders were applied for in relation to each of the children named in the title hereof in November 2012 which were

granted in December 2012 following several days of hearings. The Interim Care Orders have been extended from time to time

thereafter. The hearing of the applications for full Care Orders under s. 18 of the Child Care Act 1991 (hereinafter the Act of 1991) is

set for September 2014 and applications under s. 23 of the Children Act 1997 (hereinafter the Act of 1997) have been brought in

respect of statements alleged to have been made by each of the three children. Notices with schedules containing particulars of the

alleged statements attached have been served pursuant to s. 23(3) of the Act of 1997.

2. It was submitted on behalf of the applicant that the statements set out in the schedules should be admitted:-

a. in relation to C both on the basis that he is unable by reason of age of giving oral evidence and that the giving of

oral evidence would not be in the interest of his welfare; and

b. in relation to both A and B, that while they might be capable of giving oral evidence, the giving of oral evidence

would not be in the interest of their welfare.

3. The statements sought to be admitted are alleged to have been made by the children on various dates between October 2011 and

September 2014. The contents of many of the statements have been known to the respondent for a considerable period of time as

they have been recounted in various reports to the Court at the initial Interim Care Order hearing and subsequent extension hearings.

They include allegations of physical and emotional abuse and of neglect and failure to protect the children from harm. Some of the

allegations are made about the respondent and some about third parties. Some of them are very serious and grave allegations of

conduct which, if proven, could amount to criminal offences.

4. The applications were opposed on the ground that all of the children were capable of giving oral evidence, that the “best evidence”

rule applied and safeguards were available through ss. 21 and 22 of the Act of 1997 to protect the children from the adversarial

process, that fair procedures required that their evidence be tested, that the witnesses, while bona fide in their concerns could not

give expert psychological evidence, that it was not in the interests of the children not to give evidence, that there would be minimal

effect on reunification prospects where the mother has known for some considerable time that the allegations have been made and it

has not affected her relationship with the children during access.

5. During the course of the hearing, it became evident that the two older children A and B, wished to meet the judge hearing the

case in advance and that this was supported by the applicant and the Guardian ad Litem (GAL). On behalf of the respondent mother,

it was submitted that this was inconsistent both with the view that contact with the court process would be damaging to the

children and with fair procedures for the respondent who would not know what was said and would not have an opportunity to

contest anything that was said. It was submitted that it would be a breach of fair procedures for the children to meet with the judge

privately in the absence of the mother.

The Law

6. Section 23 of the Act of 1997 provides, inter alia, that:-

“(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.”

7. Sections 21 and 22 of the Act of 1997 provide, where relevant, as follows:-

“21.-(1) In any proceedings to which this Part applies a child may, with the leave of the court, give evidence

(whether from within or outside the State) through a live television link.

(2) Evidence given under subsection (1) shall be video-recorded.

…

(5) Where evidence is given by a child under subsection (1) that any person was known to him or her before the

date of commencement of the proceedings, the child shall not be required to identify the person during the course

of those proceedings, unless the court directs otherwise.

22 (1) Where in proceedings to which this Part applies the evidence of a child is being given or to be given through

a live television link, the court may, of its own motion or on the application of a party to the proceedings, if

satisfied that, having regard to the age or mental condition of the child, any questions to be put to the child should

be put through an intermediary, direct that any such question be so put.

(2) Questions put to a child through an intermediary under this section shall be either in the words used by the

questioner or in words that convey to the child, in a way that is appropriate to his or her age or mental condition,

the meaning of the questions being asked.

(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its

opinion, is competent to act as such.”

8. The rule against hearsay is a common law rule intended to protect the rights to a fair trial of the person against whom the

evidence is sought to be adduced. Even at common law it was not and is not an absolute rule and there are a number of exceptions

to the rule. In addition to the common law exceptions, s. 23 of the Act of 1997 gave a statutory basis to the exception which had

been identified in a line of judicial authority culminating in the Supreme Court decisions in Southern Health Board v CH [1996] 1 IR 219

and Eastern Health Board v MK [1999] 2 IR 99 (proceedings initiated before the Act of 1997 came into force) to provide for the

admission of the hearsay evidence of children. It cannot then be said that the admission of such evidence is in breach of fair

procedures per se.

9. The nature of the hearing under s. 18 of the Act of 1991 is also of relevance. The proceedings relate to the welfare of the

children. They are of a hybrid nature being adversarial but also having an inquisitorial element similar to that in wardship. The essential

test before the court will not be the truth of facts alleged in the statements but whether the risk to the welfare of the children is

acceptable (see Eastern Health Board v MK [1999] 2 IR 99).

10. Section 23(1)(b) of the Act of 1997 sets the test as not being “in the interest of the welfare of the child” as opposed to the more

usual test of the “best interests of the welfare of the child”. Section 24 of the Act of 1991 provides that the court shall “regard the

welfare of the child as the first and paramount consideration” and I am not convinced that there is any significant difference between

these formulations for the purposes of this decision. I am certainly not persuaded that any lower standard is to be applied in relation

to the interests of the children’s welfare.

Evidence

11. This application was grounded on the evidence of Ms COK, the allocated social worker for each of the children and Ms RH, the

court appointed GAL for the children, who gave evidence in support of the applications. The witnesses were cross-examined by

counsel on behalf of the respondent who opposed the applications. No evidence was called to controvert the evidence of the

applicant although the opportunity to do so was offered.

12. It was submitted that both Ms COK and Ms RH are qualified social workers and that neither is a psychologist and that their views

in relation to the emotional welfare of the children were personal opinions and should not be accorded the weight that would be

accorded to expert opinion.

13. I am also satisfied that both of these witnesses are experienced child protection social workers and are qualified to give evidence

as to the effects on the children of giving evidence. Both of them, and in particular Ms RH, know the children well and have good

relationships with them. Although neither of them have direct experience of the use of ss. 21 and 22 of the Act of 1997 to safeguard

children in giving evidence, they are in a position to give evidence as to the likely effect on the children of giving evidence even with

those safeguards in place.

14. Ms RH was appointed by the court pursuant to s. 26 of the Act of 1991 with the dual function of advising the court of the wishes

of the children but also of providing expert assistance to the court in relation to the welfare of the children (per MacMenamin J. in the

case of DK (Special Care) [2007] IEHC 488, Birmingham J. in Health Service Executive v J.M & Anor [2013] IEHC 12 and Finlay

Geoghegan J. in R.P v S.D [2013] 1 ILRM 196 (Article 11(2) of Council Regulation (EC) 2201/2003)). I am satisfied that it would be

invidious of the court to appoint a GAL as an expert to assist the court in relation to the welfare of children and to then discount her

professional opinion on an aspect of the welfare of the children.

15. That is not to say that the court is bound by their opinions or that the opinions cannot be challenged. But it is appropriate to

accord the opinion of the GAL on an issue affecting the interests of the welfare of the children the weight it would accord to an

expert witness.

A

16. A is 15 years of age. A is not unable to give oral evidence by reason of his/her age.

17. I am satisfied having regard to the evidence that A would find it stressful and traumatic to give oral evidence in this case. A

becomes very upset when talking about what happened to him/her while in his/her mother’s care and has been assessed as requiring

counselling for his/her experiences in the home. I accept that A feels responsible and blames them self for him/her and his/her siblings

in care. A has made the allegations contained in the statements sought to be admitted into evidence in carefully constructed

environments where A has been encouraged to trust the listeners and his/her statements have not been subject to challenge or

contest. A finds it very difficult to talk about these experiences and engagement with an adversarial judicial process would have an

adverse effect both on his/her emotional welfare and on his/her ability to benefit from future therapy. I also accept that A’s

relationship with his/her mother is very important to A and that not only would he/she find it traumatic to give evidence against

his/her mother, but that A’s relationship with his/her mother would be damaged if A knew his/her mother had heard him/her give such

evidence. The maintenance and promotion of A’s relationship with his/her mother is also in the interest of A’s welfare. Giving evidence

in which A was challenged on B’s statements would also have a detrimental effect on their relationship which would not be in the

interests of A’s welfare. I am satisfied that this is so even if the safeguards in ss. 21 and 22 of the Act of 1997 were in place.

18. In the circumstances, I find that it would not be in the interest of the welfare of A to give oral evidence in this case.

B

19. B is 13 years of age. B is not unable to give oral evidence having regard to his/her age.

20. I am satisfied having regard to the evidence that it would be extremely stressful and distressing for B to give oral evidence in this

case. B is a vulnerable young person who has alleged serious physical abuse by his/her mother. B is traumatised by his/her

experiences and has nightmares and flashbacks to his/her time at home. B is very angry with his/her mother. B’s relationship with her

is fractured and he/she is unwilling to attend any access with her. B has only recently started opening up about his/her feelings in

safe non-challenging environments. B has been assessed as requiring counselling. I am satisfied that it would be detrimental to B’s

emotional welfare to give oral evidence in this case. It would also have a negative effect on the benefits he/she may gain from

counselling. I am satisfied that this is so even if the safeguards in ss. 21 and 22 of the Act of 1997 were in place. I am also satisfied

that in the longer term, it is in B’s interest that the possibility of repairing his/her relationship with his/her mother be maintained and

that B giving oral evidence in this case would be detrimental to that.

21. In the circumstances, I find that it would not be in the interest of the welfare of B to give oral evidence in this case.

C

22. C is 8 years of age. I have heard evidence that C is of normal developmental ability and that he/she would understand the

difference between truth and lying and the importance of taking an oath.

23. C is very guarded and reluctant to speak about his/her experiences in the care of his/her mother whether good or bad. C has

made no direct disclosures of abuse. C is not able to talk about his/her feelings and cannot explain his/her aggressive behaviour.

There is evidence that it would be damaging for C to be examined in relation to disclosures made by his/her siblings when he/she has

not been able to discuss his/her home life with anyone yet. C has become more settled in his/her behaviour in the last 6 months and

it is the view of the GAL that it would be very unsettling for C to have to give evidence. Giving evidence in which he/she was

challenged on his/her siblings’ statements would also have a detrimental effect on his/her sibling relationships which would not be in

the interests of C’s welfare.

24. I am satisfied that C would not be unable to give evidence due to his age per se and would for example be able to give evidence

about an event which he/she witnessed, in which he/she was a disinterested third party. But I am also satisfied that C is unable to

give oral evidence in this case due to his/her age coupled with the circumstances where he/she would be required to give evidence

against his/her mother where he/she has not yet been able to talk openly to anyone about his/her mother or his/her home.

25. In any event, I am also satisfied that it would pose a risk to C’s emotional welfare if he/she gave oral evidence and I find that it

would not be in the interest of C welfare to give oral evidence in this case.

Interests of Justice/Unfairness

26. Having regard to the interests of justice and all of the circumstances, including the risk of unfairness to the respondent, I am

satisfied that the welfare of the children outweighs the right of the respondent to test the statements by cross-examination.

27. In this regard, I am satisfied that the adults to whom the statements were made will be available for cross-examination about the

circumstances of the making of the statements.

28. I am also expressly reserving the question of the weight to be attached to the statements under s. 24 of the Act of 1997 to the

hearing and noting that in the evidence before me at this hearing on this preliminary issue, it has been repeatedly asserted that these

statements were made by each of the children in non-challenging environments and that the veracity of the statements was not

tested by the auditors.

Adequacy of the Notice

29. It has been submitted that some of the statements contained in the schedules relating to each of the children are not in the form

of direct speech and therefore are not particulars of the statements sought be admitted. I am satisfied that where the particulars are

given in indirect speech taken from the notes of the witnesses that those are sufficient particulars for the purposes of s. 23(3) of the

Act of 1997.

30. I am also satisfied that where a description of the circumstances surrounding the making of the statement is given, that it is only

the actual words of the child that is to be admitted and that the surrounding circumstances will still have to be proved by the

appropriate witness in the normal way by oral evidence.

Statements not included in the Notice

31. Further, it is only fair in the circumstances that if the respondent wishes to rely upon any statements made by the children in her

defence, she may rely upon any statements made to any of the witnesses for the applicant without serving notice of same under s.

23(3) of the Act of 1997 and she has liberty to rely upon any statements made to any witnesses she intends calling in her defence

upon service of a notice setting out particulars of same upon the applicant in advance of adducing such evidence without the need

for a further hearing in relation to same.

Children meeting Trial Judge

32. A and B have expressed a wish to meet the trial judge. This was intimated to the court in September 2014 at the hearing call-

over without objection by the respondent or her legal advisors and the children were subsequently told that they would be meeting

the judge.

33. The GAL has given evidence that the children wish to meet the judge so that they will know the person who is making a decision

which will have a profound effect on their lives and also so that the judge who is making the decision will get a sense of them as

persons. She has said that it would be in their interests to have such a meeting and that it would be detrimental to them to have it

cancelled at this stage.

34. The purpose of a judge meeting with and seeing children in child care proceedings is not to gather evidence. I accept that it

would be an unfair procedure if evidence were given privately to a judge with the respondent neither knowing of nor being afforded an

opportunity to challenge the content.

35. Nor is the purpose of such a meeting to obtain the views of the children. The views and wishes of the children are given to the

court in the evidence of the GAL who has been appointed for this purpose.

36. The purpose of children meeting the judge is to benefit the children. I accept that it is in their interest to have a sense of

involvement and connection to proceedings in which important decisions affecting their lives are made. It gives them an opportunity

to know who is making decisions about them and to reassure themselves that they have been understood.

37. There is a distinction between giving oral evidence in a case, even with safeguards, and meeting with the judge in a non-

adversarial way.

38. I am satisfied that it is in the best interests of the welfare of A and B for them to meet the trial judge in this case and that the

right to a fair trial and fair procedures of the respondent can be safeguarded by the following directions in relation to the meeting:-

a. The GAL is to ensure that the children are aware in advance of the purpose of the meeting as set out above.

b. The children are to be made aware by the GAL in advance that the meeting is not confidential and that what is

said will be made known to the respondent.

c. The GAL is to ensure that the children are aware that it is the judge who will make the decision and that their

views and wishes are only one of many factors to be considered by the judge. The decision remains the

responsibility of the judge and the children are not in any way responsible for the outcome of the case.

d. The GAL should bring the children to the meeting and she is to attend it.

e. The GAL is to take minutes of what is said and submit it to the judge for approval prior to its circulation to the

parties.

f. The meeting should take place in the body of the courtroom where it can be recorded by the DAR system.

g. The meeting should take place before the hearing to ensure that:-

i. the respondent is given an opportunity to respond to the content of the meeting;

ii. any issues raised therein can be fully ventilated in the evidence; and

iii. the children are known to the judge who is making the decision when the decision is being made and

not after the decision making process has concluded.

Sinead Ní Chúlachain

District Court Judge