D.C. v D.M. (Adoption)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: [1995
• Court: High Court

High Court

[1995 No. 8060P]

D.C. v. D.M. (Adoption)

D.C.

Plaintiff

and

D.M., Southern Health Board and Eastern Health Board, Defendants, St. Patrick's Guild Adoption Society and An Bord Uchtála, Notice Parties

Cases mentioned in this report:-

Allied Irish Bank plc. v. Ernst & Whinney [1993] 1 I.R. 375.

Howard v. Commissioners of Public Works [1993] I.L.R.M. 665.

Adoption - Discovery - Assessment reports - Whether discovery of reports of adoption society prohibited - Whether interest of any child should be considered or interest of child to whom report relates - Adoption Act, 1976 (No. 29), s. 8.

Practice and procedure - Discovery - Assessment reports carried out by notice parties - Whether documentation relevant to proceedings - Whether discovery of reports prohibited - Adoption Act, 1976 (No. 29), s. 8.

Notice of motion.

The facts have been summarised in the headnote and are fully set out in the judgment of Macken J., infra.

By notice of motion dated the 12th June, 1998, the second and third defendants sought non-party discovery as against the notice parties of documents pertaining to the first defendant and his wife.

The motion was heard before the High Court (Macken J.) on the 10th December, 1998.

Section 8 of the Adoption Act, 1976, provides inter alia:-

"A court shall not make an order for the discovery, inspection, production, or copying of any book, document or record of the Board or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests of any child concerned to do so."

The second and third defendants sought third party discovery pursuant to O. 31, r. 29, of the Rules of the Superior Court, 1986, against the notice parties in circumstances where the defendants were sued by the plaintiff for damages for, amongst other alleged breaches of duty owed to the plaintiff, failure to ensure that the first defendant, who had fostered the plaintiff in the late 1970s, was a suitable or competent foster parent. The plaintiff claimed that he had been sexually assaulted by the first defendant when fostered. The second and third defendants claimed that the procedures adopted by them were appropriate and proper.

The notice parties had carried out assessments of the first defendant and his wife between 1982 and 1985, prior to other children unrelated to the plaintiff being adopted by them. The second and third defendants sought discovery of these assessments on the grounds that these would support their case as to the reasonable steps which they had taken and the conclusions which they had reached.

Held by the High Court (Macken J.), in refusing the relief sought, 1, that the documents sought by the second and third defendants were not relevant to the claims made against them, in light of the time difference between the second and third defendants carrying out their assessments and the notice parties carrying out theirs and further, in light of the different function which each were performing.

2. That s. 8 of the Adoption Act, 1976, prohibited any order for discovery in respect of documents generated for adoptions or related matters arising under the Act of 1976, as well as prohibiting disclosure or inspection of documents or the giving or obtaining of information from such documents except where the discovery or disclosure or making available of certain information was in the best interest of any child concerned.

3. That the words "any child concerned" referred to the child concerned with the particular documents sought to be discovered.

4. That s. 8 of the Act of 1976 also prohibited discovery of any assessment carried out by a third party, such as an adoption society, which was later passed on to the Adoption Board.

Cur. adv. vult.

Macken J. 17th December, 1998

This application comes before me by way of motion for non-party discovery pursuant to O. 31, r. 29 of the Rules of the Superior Court, brought by the second and third defendants in these proceedings against two non-parties, 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 Bord Uchtála ("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 against the same first and second defendants, but in that case there is no third defendant. The plaintiffs in both proceedings are brothers and were placed in the long term care (by means of fostering) of the first defendant and his wife in or about the late 1970s. Each of the plaintiffs claims damages for sexual assault by the first 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 defendant. In both sets of proceedings the second defendant is the Southern Health Board, and in the first set of proceedings the third defendant is the...