District Court lifts in camera rule on child abuse reports for Gardaí and mother's team under Section 24.

[2014] IEDC 03

AN CHUIRT DUICHE THE DISTRICT COURT

Child and Family Agency

Applicant

AND

R

Respondent

CHILD CARE ACT, 1991 - SECTION 47

In the matter of AB, disclosure of video evidence of child sexual abuse

21 March 2014

Issue

1. The Child and Family Agency (CFA), relying on Section 47 of the Child Care Act, 1991 (hereinafter the 1991 Act) has asked the

Court to lift the in camera rule in respect of two Reports commissioned by the CFA in connection with Child Care Proceedings listed

for hearing before this Court. They wished to make the second of these Reports available to An Garda Síochána (AGS).

2. Motivating this Application is the fact that AGS sought and obtained a Warrant under Section 10(1) of the Criminal Justice

(Miscellaneous Provisions) Act, 1997 as amended by Section 6(1)(a) of the Criminal Justice Act, 2006 authorising them to search and

seize “anything found at that place, or anything found in the possession of a person in that place at the time of the search, that the

said member personally believes to be evidence of, or relating to, the commission of an arrestable offence”.

3. Counsel for the mother who is the Respondent in the Child Care Proceedings also asks the Court to lift the in camera rule in

respect of both Reports so as to make these reports available to the mother’s legal team in order that they may fully consider all

aspects of this case in good time before the Child Care proceedings come before the Court for determination.

4. I am advised by counsel for the CFA that they will not be relying on the evidence contained in either Report in order to establish

the threshold criteria of in respect of the Agency’s application under Section 17(1) of the 1991 Act. They propose to establish the

threshold in respect of that Section on the basis of neglect and consequential harm. But the Agency will be relying on the Report in

their application under Section 18(1) of the 1991 Act in this case.

5. The CFA has indicated that it was always their intention to make both reports available to the mother’s legal team, the Guardian Ad

Litem (GAL) and the Court in ‘good time’ in advance of the Care Proceedings. However they wish to provide the second Report to AGS

in advance to facilitate AGS completing their investigations.

6. Counsel for AGS made representations to the Court that disclosure of the second Report should be made available to AGS solely at

this time, to facilitate them in the investigation of a crime of the most serious nature against the child, the subject matter of the child

care proceedings. This would serve the child’s interests and the public interest in the administration of justice. AGS indicate that they

do not know the detail or relevance of the second Report but in light of the gravity of the offence under investigation by them, should

disclosures made by the child produce further ‘leads’ it may benefit their investigation.

The Reports

7. There are two Reports in this context. The first Report is from a Consultant Paediatrician in a Children’s Hospital and a copy of this

report was furnished directly to AGS by the Hospital. This Report has not been made available to the mother, or I believe to the

Guardian by the CFA.

8. The second Report is from an independent specialist child sexual abuse unit in the same hospital. This unit provides both an

assessment and therapy service to children and families residing in its catchment area. The assessments are therapeutic in nature

and the Report contextualises the context in which such reports are carried out, namely in order to provide an independent opinion for

the Agency as to whether or not a child has been sexually abused. The unit received the referral in 2013. The child was subsequently

interviewed on three occasions in the Unit. It is not clear to me whether these interviews were video or audio, recorded or not. It is

clear however that the Unit also undertook interviews with the child’s foster mother to whom the child also made statements. The

Unit also relied upon six electronically recorded video interviews undertaken by the child specialist investigators with AGS with the

child. This second Report has not been made available to AGS, the GAL, or the mother.

9. AGS has undertaken an investigation regarding the alleged commission of a crime against the child and has conducted several

interviews with the child through the Garda Specialist Interview team and there are six electronically recorded statements by the child

to AGS.

10. A Garda Síochána Detective Inspector gave evidence that several arrests were made, and seized computer equipment was being

painstakingly viewed by AGS in connection with the investigation. Following the arrests suspects were questioned and then released

and a file is in preparation for the DPP. He estimated that AGS had about 90% of the evidence in the case so far. He wishes to see

the second Report however to see whether further matters relevant to the criminal investigation have come to light. He also wishes

to see this Report two weeks before it would be made available to the mother’s legal team. It was argued that this methodology

would ensure that AGS enquires were not frustrated by information leaking to potential suspects.

11. The An Garda Síochána Detective Inspector conceded that the arrests made by AGS became public knowledge through press

reports. He could not explain how this happened but his evidence was that he was not the source of this leak. It was also conceded

that the mother and daughter became identifiable within the immediate community arising from the press reports and adverse

consequences ensued for the mother.

The Legal Arguments adduced pursuant to Section 47 of the Child Care Act, 1991

12. It is conceded by all parties that both Reports were created for the purposes of the pending Child Care in camera proceedings.

The Agency has correctly sought this Court’s permission or order to lift the in camera rule in respect of the material in the possession

of the CFA provided to them by the Specialist Unit.

13. It was argued that disclosure of the second Report and any related material should be made available to AGS on two bases (a)

the Warrant and the legislation grounding same, and (b) Section 40 of the Civil Liability and Courts Act, 2004. In particular Counsel

relied upon Section 40(6) and 40(7) of the 2004 Act as the basis that AGS should be regarded as one of the statutory bodies

referenced in those sections with power to conduct inquiries, investigations and hearings, or might alternatively be regarded as ‘a

person’ with that power as mentioned in these sub-sections. The difficulty with this argument is that the Child Care Act, 1991 is not

listed as one of the legislative enactments covered by Section 40. It was for this reason that Section 3 of the Child Care

(Amendment) Act, 2007 Act was necessary so as to amend Section 29 of the 1991 Act to facilitate reporting of Child Care matters.

While Section 40 sub-sections (6) and (7) relate to “an enactment” rather than “a relevant enactment” specified in the Section, it is

unclear as to whether this in fact captures other enactments other than those specifically listed in the Section. In any event those

sub-sections refer specifically to a body or person prescribed by Ministerial Order. Ultimately however AGS relied upon the general

power of Section 47 of the Child Care Act, 1991 and the High Court authority of Eastern Health Board v Fitness to Practise

Committee [1998] 3 IR 399 and HSE v McAnaspie [2011] IEHC 477.

14. Counsel for the mother seeks both Reports to be made available to her as part of her Constitutional procedural rights to fair

process in the context of the pending Child Care proceedings before the Court. Her client denies all allegations of child sexual and

other abuse and she wishes to have both Reports in good time to enable her client to obtain full legal advice, and procure

independent reports, as deemed necessary, to enable her to fully contest the child care proceedings listed before the Court.

15. Counsel for the Agency has provided written submissions, for which I am most grateful, in support of their application to release

the second Report to AGS for the purpose of the criminal investigation being undertaken by them in respect of the child. It is

unnecessary to recite this submission here as they have been made available to all parties to the proceedings most helpfully.

However, reliance has also been placed on a line of English cases including In Re C (A Minor) (Care Proceedings: Disclosure), Re EC

(Disclosure of Material) [1997] Fam 76, [1996] 2 FLR 725; Norfolk County Council v Webster [2006] EWHV 2733 (FAM); and Re M

(Care Proceedings: Disclosure Police Investigation) [2002] 1 FCR 655 (FD). Distilling these authorities counsel for the CFA argues that

disclosure to AGS should be granted because the purpose is for the investigation and prevention of crime which is in furtherance of a

statutory duty, and the court can impose restrictions on the limit of disclosure. It is also appropriate in child care proceedings that full

and frank disclosure should be given in all steps appropriate to the protection of a chid and finally that the in camera rule is not an

iron curtain but a methodology of protecting confidential information regarding a child and the identify of a child. It is argued that this

disclosure requested by AGS falls into an exceptional category of cases which necessitates disclosure.

16. By consent of all parties the Court has been furnished with both Reports in order to exercise its discretion under Section 47 in the

full context of the matters at issue in the case having regard to the requirement to balance rights under the 1991 Act, and if

exercising discretion to release either or both Reports to any party to do so in a manner and subject to such terms as may be

necessary to protect the interests of the child, the subject matter of the proceedings, as indeed outlined in the Eastern Heath Board

v Fitness to Practice Committee [1998] 3 IR 399 and HSE v McAnaspie [2011] IEHC 477.

Core Matters at Issue

17. In the context of the Care Proceedings the court had understood that the Court would not be asked to make “findings of fact” in

respect of the allegations of child abuse made by the child, in the context of establishing the threshold justifying State Intervention

under Section 18(1) of the 1991 Act. This has now been clarified and the issue of sexual abuse will not form the basis of the Agency’s

application to extend the Interim Care Order under Section 17 of the 1991 Act; the issue of sexual abuse will form part of their case

when the Care Order under Section 18 of the Act comes before the Court.

18. But even if it were the case that the Agency did not propose to rely on the issue of child sexual abuse to ground their case for a

Care Order the Court, if it made a Care Order in respect of the child, might still be asked to have regard to some aspect of the sexual

abuse allegations in the context of Section 37 (access) or in any Directions sought from the Court under Section 47 of the Act.

Therefore any assessment of risk at that stage on these issues would have to proceed on the basis either (a) that there was sexual

abuse, or (b) on the basis of a suspicion that there was or might have been sexual abuse as alleged. It would be unsafe and unsound

for the Court to proceed to determine such issues in the absence of the Court making a finding of fact in respect of the core issue of

child sexual abuse. I now know that the Agency will in fact be relying on these matters as core issues in the Care Order hearing..

19. Both Reports are therefore highly relevant to the mother in the context of the fair determination of the Care Proceedings.

20. The second Report (and background material) is also relevant to AGS for the reasons previously stated.

21. There is no claim before the Court regarding privilege either litigation privilege or legal professional privilege raised in these

proceedings. The issue of confidentiality is the issue that arises.

Confidentiality

22. Turning to the issue of confidentiality, it is very troubling that sensitive confidential information has already come into the public

domain in this case in a manner that has identified the mother, and consequently the child.

23. I was provided at the outset of this case with a Memorandum of Understanding (MOU) between the Health Service Executive

(now the CFA) and the DPP and that was furnished to the Court at the commencement of the proceedings as I said. This document is

dated 23 April 2013. I read the document and at paragraph 8.1 of this MOU states that:

“Any person acting on behalf of the DPP including the CPS [which I take it is the Crown Prosecution Service], a local

State Solicitor, prosecution counsel or a member of An Garda Síochána may wish to request the HSE to produce

material in its possession or procurement which is or may be relevant to an investigation being undertaken by the

Gardaí or a prosecution being considered by the Office of the DPP. The person seeking the disclosure should notify

the designated officer of the HSE of that request at the earliest opportunity to allow identification and collation of

the material (regardless of whether there is consent to its release at this stage)”.

There is a form available at the back of the MOU for the processing of such requests in Appendix 2 (that is known

as Form A). The MOU goes on to discuss the process and procedures for such requests and protective measures

that might be agreed by the DPP to ensure confidentiality. It is acknowledged in the MOU that the Court is the final

arbiter in decisions in respect of Disclosure if matters cannot be agreed.

There is a form available at the back of the MOU for the processing of such requests in Appendix 2 (that is known as Form A). The

MOU goes on to discuss the process and procedures for such requests and protective measures that might be agreed by the DPP to

ensure confidentiality. It is acknowledged in the MOU that the Court is the final arbiter in decisions in respect of Disclosure if matters

cannot be agreed.

24. It is relevant that the MOU was not followed in this case; rather AGS sought and obtained a Search Warrant against the Agency

to search and seize anything found in possession of the CFA. This warrant was obtained in the Criminal Courts of Justice

approximately one week before tabloid press reports emerged of the arrest and questioning of the mother and other suspects

appeared in the press citing what the Reports say was “Garda belief”. I accept the evidence the Detective Inspector with regard to

his position, but he could not explain how the information became public knowledge.

Interviews

25. Garda interviews are conducted for the purposes of the Criminal Evidence Act, 1992 and certainly they are geared towards

criminal prosecutions.

26. The Criminal Justice Evidence Act, 1992 facilitates a joint approach to electronic recording of interviews with complainants under

the age of 14 years for evidential purposes. Neither interview processes appear to have been a joint one in this case; however

recordings of the Garda Specialist interviews were made available to the hospital’s assessment team.

27. The hospital’s assessment team appear to have undertaken two further interviews with the child and a Report was ultimately

prepared at the conclusion of all interviews.

28. The protocol for AGS/HSE liaison is set out in PART 111 of the Children First National Guidelines. A Report entitled “National Review

of Sexual Abuse Services for Children and Young People” completed in June 2011 (which as I understand it was commissioned by the

HSE/ now the CFA) also stipulates the key characteristics of ‘best practice’ in undertaking such investigations. This Report

emphasises the need for liaison, the need to avoid multiple interviews of the child, and the necessity to formally record interagency

engagements (paragraph 7.11). Accordingly there is no obstacle to joint interviewing and it could certainly have occurred in this case

though it did not.

Order

29. The information contained in the hospital Report concerning the interviews would have been available to AGS had a joint interview

process been employed in this case. The Order I make, therefore, in light of this is as follows.

30. Pursuant to Section 47 of the 1991 Act the hospital report should now be provided to AGS by the Agency.

31. This Report is released to AGS on the following basis:

(1) The Report shall be treated as sensitive confidential information regarding a child, the subject matter of in

camera proceedings;

(2) AGS shall not permit any further copies to be made of Report;

(3) AGS must keep the Report in a locked, secure container, when not in use or in transit;

(4) Having regard to the earlier disclosure of sensitive information resulting in the identification of the mother and

child in the press, the Report must be kept within the personal custody of the Detective Inspector;

(5) The Detective Inspector shall keep a written record of the name of any person allowed access to the Report

and the date of such access;

(6) On completion of the case the Report will be returned to the CFA;

(7) Should AGS wish to release either the paediatric Report from the hospital, or the hospital Report concerning the

child interviews, to the DPP’s Office in connection with the Prosecution of any person who is not a party to these

Child Care proceedings then further application will have to be made to this Court by AGS or the DPP (on notice to

the Child’s Guardian Ad Litem and the mother). The purpose of such application is to determine issues of

confidentiality regarding either Report or of any proposals for the editing or summarising of the content of either

Report for the purposes of disclosure to the defence. Such application shall be made to this Court before either of

the two Reports is made available or shared with the DPP’s Office and with the defence.

32. Having regard to the overarching requirements of Section 24 of the 1991 Act the Report concerning the interviews shall be made

available to AGS 7 days in advance of its disclosure to the mother’s legal advisor to facilitate AGS completing its criminal investigation

in this case.

33. The solicitors for the mother are entitled to know the full extent of the Child Care Case which is listed for hearing and so they are

also entitled to a copy of both Reports and they should have both of those reports 8 days from the date of this Order, this will

facilitate the 7 days which have just been given to AGS. This will ensure a proportionate balance between the rights of the child and

the rights of the mother whether under the Constitution or otherwise as required by Section 24 of the 1991 Act. The Reports to the

mother are to be released on the following basis:

(1) The mother’s legal team shall treat both Reports as sensitive confidential information regarding a child the

subject matter of in camera proceedings;

(2) The Solicitor for the mother shall not permit any further copies to be made of Report;

(3) The Report must be kept in a locked, secure container, when not in use or in transit;

(4) The Solicitor for the mother shall keep a written record of the name of any person allowed access to the Report

and the date of such access;

(5) The Reports shall only be released to Counsel instructed in this case and then on the basis of the Report being

treated as per (1) above;

(6) Any expert authorised by the court to prepare a report for the purposes of these proceedings and subject to

such Directions as may be imposed by the Court in this regard;

(7) The Report may only be released to any other person only with the leave of the court;

(8) The solicitor, for the mother, may permit his/her client to view the Report at his/her professional premises and in

his/her presence;

(9) In the event that the mother’s current legal team are no longer instructed, the Reports shall be returned to the

CFA for a further order regarding the terms of release of the Report to a new legal team; and

(10) In any event on closure of the case the Report will be returned to the Agency and the solicitor will be required

to keep a written record of the name of any person allowed access to the Report and the date of such access.

34. Both Reports shall be made available to the GAL for the Child on similar terms.

35. In terms of reporting of this case nothing is to be reported or broadcast which likely to lead members of the public to identify the

child or any of the parties involved in the Child Care proceedings. This is the legal position since the Courts and Civil Law

(Miscellaneous Provisions) Act 2013 became law in any event. I would ask that particular care is taken, in any reporting of this case

in light of what has already occurred which I am sure was unintended.

36. Liberty to apply.

21 March 2014

District Court Judge