District Court denies access to social work reports under Child Care Act 1991 s.29(5) for research purposes.

[2015] IEDC 13

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE (HSE)

APPLICANT

-AND-

JC

RESPONDENT

CHILD CARE ACT 1991, Section 29(5)

IN THE MATTER OF SC, A CHILD

Summary

1. The Applicant in this matter is Dr. CC who requested access to “relevant court documents” for the purposes set out in section 29

(5) of the Child Care Act 1991 (as amended) in accordance with Order 61A of the District Court Rules (2014) subject to the directions

set out in paragraph 3 below. Dr. CC seeks access on her own behalf and on behalf of the Child Care Law Reporting Project members

(as approved by the Minister for Children and Youth Affairs) to “relevant court documents” so that she and her colleagues can

accurately prepare reports of cases and also discharge their wider research role.

2. Counsel on behalf of Dr. CC defines “relevant court documents” as;

(a) all notice of application (or equivalent originating documents howsoever described) in the above proceedings

(b) all pleadings and other documents (including reports and the terms of settlement, if any, in the course of these

proceedings;

(c) any order made by the Court in these proceedings (including any judgment provided to the parties in these

proceedings) but does not include any document, the contents of which are expressed to be without prejudice or terms

which have a like effect.

3. It is submitted on behalf of Dr. CC that “other court documents” includes access to Social Work/ Guardian ad Litem and any other

professional reports submitted to the Court in Child Care cases.

4. The limiting directions suggested that the Court should apply are that such documents;

(a) May be inspected and notes taken;

(b) May not be copied by any means;

(c) May not be removed from the Court building;

(d) Should be returned to such person as may have provided them without delay once inspected. And, for the avoidance

of doubt, section 29 (1) of the Child Care Act 1991 is to apply save to the extent that it has been dis-applied by this

order or by operation of law.

Statutes Considered

5. The following statutory provisions were considered; Section 29 (1) and (5) Child Care Act 1991 as amended by section 3 Child Care

(Amendment) Act 2007; Section 31 of the Child Care Act 1991; Section 40 Civil Liability and Courts Act 2004 as amended by section

31 of the Civil Law (Miscellaneous Provisions Act 2008 and the Civil Law (Miscellaneous Provisions) Act 2013; Section 7 Courts Act

1964 as amended by section 22 of Courts Act 1971 and section 5 Interpretation Act, 2005.

Rules Considered

6. The following rules were considered; Order 84 District Court Rules S.I 1993/97; SI No 539/2004 District Court (Children) Rules 2004;

SI 5/2006 District Court (Children) Rules 2006; S.I No 469 of 2008: District Court (Child Care) Rules 2008 Order 61A (rules providing

for section 40 Civil Liability and Courts Act 2004 and section 29(5) Child Care Act 1991); S.I No 467/2012 Child Care Act 1991

(section 29(7)) Regulations; S.I 141 of 2015 Order 61A (section 40 Civil Liability and Courts Act 2004: S.I 141/2015; District Court

(Child Care) Rules 2015 S.I 143/2015.

Cases Considered

7. The following cases were considered; Eastern Health Board v Fitness to Practice Committee [1998] 3 IR 399; RD v McGuinness

[1999] 2 IR 411; RM v DM (Practice in Camera) [2000] 3 I.R 373; Eastern Health Board v E No. 2 [2000] 1 I.R 451; MS v Gibbons

[2007] 3 IR 584; HSE v McAnaspie [2012] IR 548; Martin v Legal Aid Board [2007] 2 IR 759; Kiely v Minister for Social Welfare [1977]

IR 267; Health Service Executive v S.C (a minor) & Anor [2013] IEHC 516; E.H.B. v. E. (No.2) [2000] I.R.451; Miggin (a Minor) v. HSE

& Gannon [2010] IEHC 169, Breslin v McKenna [2008] IESC 43 [2009] 1 I.R 298; AIB PLC v George Tracey (no.2)[2013] 3 JI c 2106;

Health Service Executive v L.N & Ors [2012] IEHC 611; Leneghan-v-Judge Brennan & Ors [2015]IEHC 143; Crilly T & J Farrington

Limited [2001]3 IR 252; O’Dwyer v Keegan [1997] 2 ILRM 401. DPP v Flanagan [1979] IR 265; Howard v Commissioner for Public

Works [1994] 1 IR 101; B and P v United Kingdom (2002) 34 E.H.R.R. 529; and Moser v Austria (Application no. 12643/02) (2006).

Facts

8. The Applicant is a bona fide researcher and founder of the Child Care Law Reporting Project (CCLRP). The CCLRP is an independent

project established under section 3 of the Child Care (Amendment) Act 2007 (in accordance with regulations made under that Act by

S.I 467 of 2012).

9. Dr. CC and her research team attend Courts where Child Care cases are heard in order to report on those proceedings while

protecting the anonymity of the children and their families. The CCLRP involves the presence of a single reporter in each case that is

reported. Case reports are not contemporaneous but published bimonthly. The CCLRP also collect and analyse data from the

proceedings and publish reports highlighting the decisions in context with a view to promoting public debate on the issues raised

through seminars and conferences.

10. These cases are held “in camera” and this status and all that it implies is afforded statutory expression in sections 29 and 31 of

the Child Care Act 1991(as amended).

11. As outlined at paragraphs 1-4, Dr. CC seeks access to “relevant court documents” and it is submitted on her behalf that the

meaning of “any relevant court documents” in section 29 (5) (ii) of the Child Care Act 1991 as inserted by section 3 of the Child Care

(Amendment) 2007 Act includes access to Social Work, Guardian Ad Litem and other professional reports which are created for the

purposes of the Child Care proceedings, are filed in Court and in respect of which the authors of the report swear that the contents

of same are accurate and true and represent the basis of their professional opinion.

Positions of the Parties

12. The Child and Family Agency (CFA) have maintained a neutral stance in this application and have not filed legal submissions.

13. The Respondent parents originally contested the interpretation of the Statute and Rules of Court, urged on the Court by counsel

for the CCLRP and filed submissions in this regard; however the Respondents have since changed their legal representation and now

also maintain a neutral stance in respect of the matter.

14. Counsel for the Guardian ad Litem for the children, the subject matter of these proceedings, has filed submissions and urges

caution in adopting an overly expansive interpretation of section 29(5) (ii). Counsel for the Guardian contends that the plain meaning

of “court document” refers to official court documents, in terms of the ordinary understanding of this phrase and not to every

document produced to a Court or lodged with the Court or included in a book of pleadings, in the course of the proceedings.

15. In the event that the Court is minded to adopt a restricted interpretation of the Statute and Rules of Court, counsel for the

CCLRP asked the Court to state a case to the High Court in light of the importance of the matters at issue and the absence of

authority from the Superior Courts.

The Statutory Regime

16. It is important to set out section 29(5) of the Child Care Act 1991, as amended. The original section was amended by section 3 of

the Child Care Amendment Act of the 2007 in order and provides for a system of limited court reporting as follows:

5. Nothing contained in this section shall operate to prohibit—

(a) the preparation of a report of proceedings under Part III, IV or VI by—

i. a barrister or a solicitor,

ii. []

iii. a person falling within any other class of persons specified in regulations made under subsection (7)

for the purposes of this subsection,

(b) the publication of a report prepared in accordance with paragraph (a), or

(c) the publication of the decision of any court in such proceedings, in accordance with rules of court, provided

that the report or decision does not contain any information which would enable the parties to the proceedings or

any child to which the proceedings relate to be identified and, accordingly, unless in the special circumstances of

the matter the court, for reasons which shall be specified in the direction, otherwise directs, a person referred to in

paragraph (a) may, for the purposes of preparing such a report—

(i) attend the proceedings, and

(ii) have access to any “relevant court documents”,

subject to any directions the court may give in that behalf.

6. []

7. The Minister may, after consultation with the Minister for Justice, Equality and Law Reform, make regulations specifying

a class of persons for the purposes of subsection (5) if the Minister is satisfied that the publication of reports prepared in

accordance with subsection (5) (a) by persons falling within that class is likely to provide information which will assist in

the better operation of this Act, in particular in relation to the care and protection of children.

8. Nothing contained in this section shall be construed to prejudice the generality of—

(a) any other provision of this Act (including this Act as amended by the Child Care (Amendment) Act 2007) or any

thing which may be done under any such provision, or

(b) section 267(2) of the Children Act 2001.

9. In subsection (5), ‘proceedings’ include proceedings commenced but not completed before the commencement of that

subsection.”

The first question, which arises therefore, is what Rules of Court apply to this matter?

17. Order 61A is to be found in Statutory Instrument 469 of 2008 and outlines the procedural requirements under both section 40 of

the Civil Liability and Courts Act 2004 (Family Law proceedings) and section 29(5) (Child Care proceedings). Order 61A of S.I 469 of

2008 provides that;

2.(1) “A person referred to in section 29(5) of the Child Care Act 1991 (inserted by section 3 of the Child Care

Amendment) Act 2007) intending to attend any proceedings to which Part III, Part IV or Part VI of the said Act applies or

to seek access to any “relevant court documents”, for the purpose of the preparation of a report of such proceedings,

the publication of a report prepared in accordance with section 29(5)(a) of the said Act or the publication of a decision of

the Court in any such proceedings in accordance with section 29(5) shall, prior to or at the commencement of the hearing

of any proceedings at which such person wishes to attend, identify himself or herself to the Court and apply for such

directions as the Court may give under section 29(5) of the said Act.

2.(2) On any such application, the Court, if satisfied that the Applicant is a person referred to in section 29(5) of Child

Care Act 1991, and that the Applicant intends to attend the proceedings for the purpose of the preparation of a report of

such proceedings or to seek access to any “relevant court documents”, the publication of a report prepared in

accordance with section 29(5)(a) of the said Act or the publication of a decision of the Court in any such proceedings in

accordance with section 29(5), and having heard any submission made by or on behalf of any party to the proceedings,

may give such directions as seem appropriate as to the terms upon which the Applicant may attend the proceedings (or

any part of the proceedings), and may give directions as to the access which such person may have to court documents

relevant to the proceedings. Where the Court, in the special circumstances of the matter, directs that such person may

not attend the proceedings or have access to “relevant court documents”, the reasons shall be specified on giving such

direction.

2.(3) The Court may, of its own motion or on the application of any party or person, vary or modify any such directions

given under section 29(5) of the Act during the course of the proceedings.

2.(4) Where any question concerning access to “relevant court documents” arises otherwise than during the course of

the proceedings, a person referred to in section 29(5) of the said Act or party to the proceedings concerned may apply at

any sitting of the court for the court area in which the proceedings were heard or are to be heard, on notice to such

person (if not the Applicant) and the parties or other parties, for any further directions or to vary or modify any directions

given under section 29(5) of the Act."

18. Two situations are therefore envisaged by the Act and the Rules of Court. Firstly the publication of a law report under section 29

(5) (a) by a barrister or solicitor or the publication of the decision of a court by a researchers (nominated under S.I 467/12) and

secondly, an application to seek access to any “relevant court document”.

19. Attendance at the proceedings (or any part of the proceedings) and access to “court documents” relevant to the proceedings

must be preceded by the party identifying themselves to the Court and applying for such directions as the Court may give under

section 29(5).

20. The Court must be satisfied that the person falls within the class of persons authorised by section 29(5) and must hear

submissions made by any party to the proceedings on the application. The Court may then give such directions as seem appropriate

as to the terms upon which the Applicant can attend and have access to court documents relevant to the proceedings.

21. If the Court declines to allow the Applicant to attend in the special circumstances of the case or have access to “relevant court

documents” it must specify the reasons for this decision. Order 61A (4) provides that where the question of access to “relevant court

documents” arises, otherwise than during the course of the proceedings, it may be brought to the Court on notice to the parties in

the proceedings.

22. No definition of “court document” or “relevant court document” in the context of care proceedings is to be found in order 61A or

in section 29(5) of the Child Care Act, 1991.

Definition of “court document”

23. Order 41 of the District Court Rules deals with the service of documents in civil proceedings (service of documents in the State)

and is set out in S.I. 17 of 2014. This Order defines a “document” for the purpose of the Order as a “District Court document” within

the meaning of section 7(1) of the Courts Act 1964. The 1964 Act provides that “District Court document” means;

“..any document by which proceedings in the District Court (other than proceedings by way of summons in which the

complainant is a member of the Garda Síochána, a Minister of State, an officer of such a Minister, the Attorney General or

an officer of the Revenue Commissioners or proceedings under the School Attendance Acts, 1926 and 1936) are instituted

and a witness summons relating to such proceedings”.

24. Order 39 of the District Court Rules 2014 also provides;

1. (1) “If the procedure for the conduct of civil proceedings is not prescribed by these Rules or by an enactment, or for

any other reason there is doubt about the manner or form of the procedure, the Court may determine what procedure is

to be adopted and may give directions.

1. (2) Subject to Order 12, rule 9(4), where no form for use in the Court in respect of a step, notification or other action

in a civil proceeding is for the time being prescribed, any form for the time being in use in the Circuit Court or the High

Court for the corresponding step, notification or other action in civil proceedings may be used in civil proceedings in the

Court with the necessary modifications”.

25. Order 117A of the Rules of the Superior Courts in the context of the lodgement of documents defines a “court document” as;

“Court Document” includes any pleading, notice, affidavit, bill of costs or other document required by these rules to be

lodged with any officer or in any office in or in connection with any proceedings;

“Lodge”, in relation to any document, means lodge, file, leave with or at, deliver or transmit, or any analogous word or

expression, and cognate words and expressions shall be construed accordingly.

26. Adopting a literal interpretation of the Statute and Rules of Court therefore the access in question is limited not only to “court

documents” but also to “relevant” court documents.

27. Counsel for the Applicant submits that the section 40 of the Civil Liability and Court Act 2004 (as amended) is relevant to the

interpretation of section 29(5) of the 1991 Act (as amended). Section 40 (as amended) made a number of changes to “in camera”

restrictions. In particular, it allowed for the preparation and publication of reports of proceedings under “relevant enactments” by a

barrister, a solicitor and certain other persons designated by regulation (such as the CCLRP). It also permitted access to

documentation - such as orders, court reports and pleadings by such persons. S.40 (3) as amended now provides:

“Nothing contained in a relevant enactment shall operate to prohibit—

(a) the preparation by a barrister at law or a solicitor or a person falling within any other class of persons specified in

regulations made by the Minister and publication of a report of proceedings to which the relevant enactment relates, or

(b) the publication of the decision of the court in such proceedings, in accordance with rules of court, provided that the

report or decision does not contain any information which would enable the parties to the proceedings or any child to

which the proceedings relate to be identified and, accordingly, unless in the special circumstances of the matter the

court, for reasons which shall be specified in the direction, otherwise directs, a person referred to in paragraph (a) may,

for the purposes of preparing [such a report, attend the proceedings, and

(i) have access to any relevant documents, subject to any directions the court may give in that behalf]”.

Section 40 (11) further clarifies the meaning of ‘relevant document’.

In subsection (3).relevant documents’, in relation to any proceedings referred to in that subsection—

(a) subject to paragraph (b), means—

(i) the petition, summons or other originating document in the proceedings,

(ii) pleadings and other documents (including the terms of settlement, if any) produced to or lodged

with the court, or included in the book of pleadings, in the course of the proceedings, and

(iii) any order made by the court in the proceedings,

(b) does not include any document the contents of which are expressed to be without prejudice or in terms having

a like effect.

It is submitted that ‘expert reports’ in family law proceedings are encompassed within the term of ‘other documents’ produced to or

lodged with the Court within the meaning of the section and that a barrister at law or a solicitor or a person falling within any other

class of persons specified in regulations made by the Minister has a statutory right to seek access to such expert report subject to

any directions the Court may give in that regard. [Page 9 paragraph 27 of submissions by Applicant].

28. In Martin v Legal Aid Board [2007] 2 IR 759 Laffoy J noted that section 47 reports (which contain sensitive information in family

law proceedings) are in essence the Court’s report and it remains within the discretion of the Court whether to release a copy of the

report to authorised persons or not. A similar point was made in relation to section 20 reports in M.S v Judge Conal Gibbons 3 I.R 785

by Murphy J where the report was primarily procured by the Court to aid the Court. He also noted that there was a difference

between documents, the contents of which require proof beyond a reasonable doubt, and those that require proof on the balance of

probabilities.

29. It is also noteworthy that in Health Service Executive v McAnaspie (Deceased) [2012] IR 548 [2011] IEHC 477 the application by

the Irish Times newspaper was for permission to report on the application by the child’s next of kin for access to the Guardian reports

under a quite different reporting regime. The Irish Times was not entitled to seek access to such documents whereas the Applicant in

this case, the CCLRP, has a statutory right to apply for access to “relevant court documents” to produce an accurate report of the

proceedings. While Birmingham J in McAnaspie held that the District Court had a discretion to permit the next of kin of a deceased

child to have access to the Guardian reports created for the Court’s benefit that application was made with the consent of the author

of the Reports in question and was for the benefit of other intended proceedings under consideration by the next of kin.

30. All parties accept that the term “relevant enactment”in section 40 refers to “in camera” restrictions found in family law statutes

and does not extend to “in camera” restrictions in the 1991 Act. All parties also accept that only a barrister, solicitor or researcher

such as the Applicant, in this case who is specified by Ministerial regulation, who possess the statutory right to seek access to

“relevant court documents”.

31. The Court is being urged by the Applicant to adopt a seamless interpretation of section 29(5) of the Child Care Act 1991 as

amended and section 40 of the Civil Liability and Courts 2004 as amended: both legislative regimes were amended by the Civil Law

(Miscellaneous Provisions) Act 2013. In neither of these situations are members of the press given the right to seek access to

“relevant court documents” for the purposes of reporting the case. That right of application to seek access to “relevant court

documents” (section 29(5) 1991 Act as amended) or relevant documents (section 40 Civil Liability and Court Act 2004 as amended) is

a barrister at law or a practicing solicitor or authorized researcher under both legislative strands.

32. The kernel of the issue in this case is that section 3 of the Child Care (Amendment) Act 2007 amending section 29 (5) of the 1991

only permits application for access to “any relevant court documents” in Child Care cases. A researcher reporting on family law cases

under the section 40 legislative regime may apply for access to “any relevant documents” subject to any directions the Court may

give in that regard. Furthermore this phrase is specifically defined in section 40 (11).

33. Both legislative strands have been dealt with separately by the Oireachtas and each has a very different anthropology. Both

legislative strands require that any report published shall not contain information that would enable any party to the proceedings or

any child to whom the proceedings relate to be identified.

34. The anomalies thrown up by disparate interpretations of the “in camera” rule are addressed in the 2004 Act. Section 40 (6) & (7)

of the 2004 Act allows bodies conducting statutory hearings, inquiries or investigations, as well as other bodies designated by

regulation conducting hearings, inquiries or investigations, to access “in camera” material. The context of such statutory hearings,

inquires or investigations is not confined to “relevant enactments” and it is submitted extends to Child Care proceedings. I accept

that this appears to be the clear statutory intent of these subsections on a plain reading of the section. Section 40(9) of the 2004

Act however limits the context of such availability to hearings which are themselves conducted “otherwise than in public” and

provides that the material made available in that context must not be published.

Definition of “relevant court document” for the purposes of section 29(5)

35. The legislature has made a clear distinction between family law proceedings and Child Care proceedings. The definition of court

documents relevant to the proceedings in the context of the Child Care Act 1991 must be interpreted in accordance with the rules of

statutory interpretation and whether one adopts a literal or a purposive approach i.e. the phrase must be construed in the context of

the act as a whole. By inserting the word “Court” the Oireachtas must be presumed to have intended that the word “Court” be given

its ordinary meaning.

36. The Civil Law (Miscellaneous Provisions Act) 2013 made far-reaching change in the law allowing bona fide representatives of the

Press attend both family law and Child Care proceedings with appropriate and proportionate safeguards concerning privacy. This

change required specific statutory authority. It also afforded the legislature the opportunity to import the specificity contained in

section 40 (11) of the 2004 Act (as amended) into section 3 of the Child Care (Amendment) Act 2007 (amending the 1991 Act) but it

chose not to do so. It is not legitimate for this Court to assume that this was an oversight.

37. In the context of family law proceedings the jurisprudence of the Superior Courts clearly indicates that section 47 Reports and

section 20 Reports are reports prepared for the benefit of the Court itself and not for any particular party to the proceedings.[ Martin

v Legal Aid Board; MS. v Judge Conal Gibbons]. It is also clear that the District Court has discretion to permit access to “in camera

documents” (including Social Worker and Guardian ad Litem reports) with necessary redactions to protect the rights of others where

this is in the best interests of the child or to discharge a crucial public interest such as the prosecution of a crime [Eastern Health

Board v Fitness to Practice Committee 3. I.R 399; Eastern Health Board v E (No. 2 [2000] 1 I.R 451; Health Service Executive v

McAnaspie [2012] I.R 548;]

38. Dr. CC has a prima facie statutory right to seek access to “relevant court documents” such as Application, Statutory Declarations

of Service, grounding Affidavits setting out the basis of the application as required by S.I 143/2015.

39. As was outlined in B. & P.v UK (2002) 34 E.H.R.R 529 professionals providing reports to the Courts in family and child protection

cases must be free to express themselves candidly on highly personal issues without fear of public curiosity or comment. The

disclosure of information protected by the “in camera” rule in Child Care cases must be explicit on a plain reading of the Act, or must

be necessary in order to protect the interests of vulnerable children or to protect a crucial public interest, such as the prosecution of

crime. The Court has power, as an incidence of its discretion to permit disclosure of protected information in such circumstances to

impose such terms that it regards as necessary in the circumstances as outlined in Health Service Executive v McAnaspie [2012] I.R

548.

40. I am not persuaded by the submissions of the Applicant that on a plain reading of the Act and Rules of Court that she has a

statutory right in the context of Child Care proceedings to seek access to Social Work, Guardian ad Litem or other professional

reports.

A. One of the questions which arise in a consultative case stated, having reached such a conclusion is whether I am correct to hold

that “relevant court documents” in respect of section 29 (5) only refers to District Court document by which proceedings are

instituted?

B. If I am not correct in so finding and the Applicant has a right pursuant to section 29 (5) to seek access to Social Worker, Guardian

ad Litem and other professional reports and documents for the purpose of the publication of a report or the publication of the decision

of any court in such proceedings is the Applicant obliged to apply to the Court on every occasion that she wishes to have access to

“relevant court documents” so that Court can determine what is relevant and strictly necessary?

C. What factors must the District Court take into account in order to discharge its obligation to balance the competing rights and

interest of the person seeking access to “relevant court documents” for the purposes of the publication of a report or the publication

of a decision of any court in such proceedings with those of the other parties to these proceedings or a child the subject matter of

the proceedings or the authors of the reports/ individual who make seek the full benefit of the “in camera” rule?

D. Is the Applicant obliged to give notice to the authors of each report to which access is sought and does each author have the

right to make representations to the Court in respect of the matter and if so, what weight should be attached to such views

expressed? [Health Service Executive and S.C (A minor represented by her Guardian ad Litem and Next Friend Pauline Underwood)

and AC [2013] IEHC 516].

E. Is the Applicant entitled to make reference to information contained in such reports which has not been fully opened to the Court

or read into the record of the court at the oral hearing(s) or does any such reference constitute a breach of section 31 of the Child

Care Act, 1991 unless the release of any such information is specifically authorised by the court.

F. I will hear from the parties regarding the questions they wish to ask the High Court in the context of a Consultative Case Stated on

the basis that the District Court has made findings of fact set out at paragraphs 8-11 and is of the view that the words “relevant

court documents” do not include access to Social Work, Guardian ad Litem and other reports filed on the District Court file on a plain

reading of the statute and that the Applicant has a right to seek access to “relevant court document” as set out in paragraph 39.

Judge Rosemary Horgan

District Court Judge