Cronin v Murray & Southern Health Board & Eastern Health Board

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 17 December 1998
• Neutral Citation: [1998] IEHC 181
• Docket Number: No. 8060p/1995
• Court: High Court
• Date: 17 December 1998

[1998] IEHC 181

THE HIGH COURT

No. 8060p/1995

CRONIN v. MURRAY & SOUTHERN HEALTH BOARD & EASTERN HEALTH BOARD

DANIEL CRONIN

PLAINTIFF

AND

DAVID MURRAY SOUTHERN HEALTH BOARD AND EASTERN HEALTHBOARD

DEFENDANTS

Citations:

RSC O.31 r29

AIB V ERNST & WHINNEY 1993 1 IR 375

ADOPTION ACT 1976 S8

HOWARD V COMMISSIONER OF PUBLIC WORKS 1993 ILRM 665

Synopsis

Family

Adoption; discovery; negligence and breach of statutory duty alleged against second named defendant Health Board in failing to ensure first defendant suitable person to become foster parent; An Board Uchtala, "Adoption Board", had made assessments of first named defendant in relation to possible adoption of other children; motion for non-party discovery by Health Board against Adoption Board; whether Adoption Board documents relevant; whether s. 8 Adoption Act, 1976, prohibits discovery; meaning of "child concerned".

Held: Adoption Board documents not relevant; in any event, discovery application rejected by virtue of provisions of s. 8; documents on Adoption Board files free from discovery unless in best interest of children concerned; "child concerned" is child concerned with documents sought to be discovered.

Cronin v. Murray High Court: Macken J. 17/12/1998- [1999] 2 IR 150

While the plaintiff was claiming damages for sexual assault by the first defendant after being fostered to him and his wife, the court was not satisfied that the existence or content of assessment reports or accompanying documentation which came into existence in respect of any assessment of the first defendant and his family in 1982 and/or in 1985 by either St. Patrick's Guild Adoption Society and/or the Adoption Board in the context of the possible adoption of two totally unrelated children were or could be relevant to the issue whether the second and third defendants carried out appropriate or competent assessments of the first defendant and his family in the context of the long-term fostering of the plaintiff in the 1970s or that the existence or content of these assessments were relevant to the statutory obligations placed on the second and third defendants concerning the plaintiff and his brother. The content of the assessments or the conclusions reached by third parties could not be relevant to the claims made against these defendants or the defences raised by them. The documents in question were not relevant. The High Court so held in refusing the relief claimed.

1 Macken J.delivered on the 17th day of December 1998.

2 This application comes before me by way of Motion for non-party discovery pursuant to Order 31, Rule 29 of the Rules of the Superior Court, brought by the second and third named Defendants in these proceedings against two non-party, namely Sr. Frances Ignatius as the nominated representative of the unincorporated body of persons known as St. Patrick's Guild Adoption Society ("the Adoption Society") and An Board Uchtala ("the Adoption Board"). In order to place the application in context it is necessary to say something about the nature of the case in which the discovery is sought. This case is identical to a case brought by the brother of the Plaintiff in these proceedings, one Anthony Cronin, against the same first and second Defendants, but in that case there is no third named Defendant. The Plaintiffs in both proceedings are brothers and were placed in the long term care (by means of fostering) of the first named Defendant and his wife in or about the late 1970s. Each of the Plaintiffs claims damages for sexual by the first named Defendant. in circumstances particularised in the Statement of Claim. It is common case that the claim is of a most serious nature as against the first named Defendant. In both sets of proceedings the second Defendant is the Southern Health Board, and in the first set of proceedings the third named Defendant is the Eastern Health Board. The explanation for the different Defendantsis that the first Defendant, with whom the then children were placed, was a Health Board worker in the employment, initially, of the Southern Health Board and subsequently of the Eastern Health Board. It is claimed against both Health Boards that they were negligent in a number of respects, including failing to ensure that the first Defendant was a suitable or competent person to become a foster parent, and failing to supervise the first Defendant while fostered to the second and/or third Defendant, failing in the Defendant's statutory duty towards the Plaintiffs, and several other acts or omissions which constitute alleged breaches of statutory duty of negligence. Particulars of the alleged breaches of statutory duty and: or negligence on the part of the second and/or third Defendants are more particularised in the Statements of Claim and in subsequent Replies to particulars.

3 The Defendant Health Boards deny the claims and insofar as concerns the allegation of negligence or breach of statutory duty, each Health Board Defendants denies these allegations in the form of a traverse.

4 In the course of correspondence between these Defendants and the Adoption Board became clear that both the Adoption Board and the Adoption Society, had carried out an assessment (or-perhaps assessments) of the first named Defendant and his wife in or about the years 1982 and 1985, after which a further child or children were placed in the care of the first Defendant and his wife as Adoption and Adoption Orders were made in those years in favour of the first named Defendant and his wife in respect of those children.

5 Both the Adoption Board and the Adoption Society have refused to furnish any documents to the Health Board Defendants in relation to the assessments made by each or either of them concerning the adoption of other children (unrelated to either Plaintiff) by the first named Defendant and his wife. As a side issue. but related to this aspect of the matter, the Adoption Society, because of the manner in which it operates, has no such documents at present in its possession. I am told it delivers over to the Adoption Board alldocuments concerning any such assessments or evidencing any such assessment and these documents, it was explained to me, then become part and parcel of the Adoption Board's files on the matter. The method of procedure or practice adopted by the Adoption Society and the Adoption Board is of relevance in the context of arguments made against discovery by both the Notice Parties and will be dealt with below.

6 Against this background the Health Board Defendants have sought the following, namely discovery of:

7 (a) All documents in their possession or power or procurement or formerly in their possession or power or procurement touching upon or pertaining to David and Rita Murray:

8 (b) In particular (but without prejudice to the generality of the foregoing) all documents touching upon or pertaining to any applications by the said persons for the placement with them of children by way of adoption under the Adoption Act including all correspondence, assessments, all reports as to their fitness or suitability as adoptive parents and whether before or after an Adoption Order was made in theirfavour:

9 (c) Documents disclosing the whereabouts or address of a named person. who was a Welfare Officer of the second named Notice Party at the time the assessments sought were made.

10 Counsel on behalf of the second and third named Defendants was prepared to accept that, under Order 31, Rule 29, she could not succeed in relation to the breath of the relief sought at (a) above but would be content to have discovery of the documents sought at (b) above having...