Child and Family Agency and DE (Admissability Hearsay Statements - Abuse)

• Judge: Ní Chúlacháin J.
• Judgment Date: 19 September 2014
• Neutral Citation: [2014] IEDC 13
• Case Outcome: Approved
• Court: District Court (Ireland)

[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 eac h of the children named in the t itle hereof in November 2012 which were

granted in December 2012 following several days of hearings. T he Interim Care Orders have been extended f rom time to time

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

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

respect of sta tements alleged to have been made by each of the three c hildren. Notices with s chedules cont aining particulars of the

alleged statements at tached have been se rved pursuant to s. 23(3) of the Ac t of 1997.

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

a. in relation to C bot h on the basis t hat 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 w hile they might be capable of giving oral evidence, the giving of oral evidence

would not be in the interest of t heir welfare.

3. The st atements sought to be admitted are a lleged to have been made by the children on various dates betw een Oct ober 2011 and

September 2014. The conte nts of many of t he stat ements have been known t o the respondent for a considerable period of time as

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

They include allegations of physical and emotional abuse and of neglect and failure to protec t the c hildren from harm. Some of the

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

conduct which, if proven, could amount to c riminal offences.

4. The applicat ions were opposed on t he ground that all of the c hildren were c apable of giving oral evidence, that the “best evidenc e”

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

process, t hat f air procedures required that their evidence be test ed, that the wit nesses, while bona fide in their co ncerns could not

give expert psychological ev idence, that it was not in the interests of the c hildren not t o give evidence, that there would be minimal

effec t on reunificat ion prospects where t he mother has known for some considerable time that the allegations have been made and it

has not af fect ed her relationship with the c hildren during acces s.

5. During the c ourse of t he hearing, it became evident t hat t he two older children A and B, wished to meet the judge hearing the

case in advance and t hat this w as supported by t he applicant and t he Guardian ad Litem (GAL). On behalf of the respondent mother,

it was submitted t hat this wa s inconsistent both with t he view t hat c ontact 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

contes t anyt hing that was s aid. It was submitted t hat it wo uld be a breach of fair procedures for the c hildren to meet with the judge

privately in the absenc e of t he mother.

The Law

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

“(1) Subject to subsec tion (2), a st atement made by a c hild shall be admissible as evidence of any fac t therein of

which direct oral evidence would be admissible in any procee ding to which t his Part applies, notwithst anding any

rule of law relating to hearsay, w here the c ourt considers t hat—

(a) the c hild is unable to give evidence by reason of age, or

(b) the giving of oral evidence by the c hild, either in person or under section 21 , wo uld not be in the

interest of the welfare of the c hild.

(2)(a) Any sta tement referred to in subsec tion (1) or any part t hereof shall not be a dmitted in ev idence if the court

is of the opinion that, in the interest s of justic e, the statement or t hat part of the st atement ought not to be so

admitte d.

(b) In considering whether the st atement or any part of the state ment ought to be admitted, t he court shall have

regard to all the c ircumstances, inc luding any risk that t he admission will result in unfairness to any of the parties t o

the procee dings.

(3) A party proposing to adduc e evidence admissible in proceedings to whic h this Part applies by virtue o f

subsect ion (1), shall give to the o ther party or parties t o the proceedings—