Eastern Health Board v M.K.; Re M., S. and W

• Jurisdiction: Ireland
• Judgment Date: 29 January 1999
• Date: 29 January 1999
• Docket Number: [S.C. Nos. 65 and
• Court: Supreme Court

Eastern Health Board v. M.K.

Eastern Health Board

Applicant

and

M.K. and M.K.

Respondents

[S.C. Nos. 65 and 67 of 1996]

Supreme Court

Wardship - Evidence - Hearsay - Admissibility - Children - Allegations of child sex abuse against parents - Whether hearsay evidence relating to statements of abused children admissible - Whether certain safeguards required for reception of such evidence.

Evidence - Hearsay - Admissibility - Children - Allegations of sexual abuse - Videotape recordings - Whether statements adduced by means of video recording properly described as hearsay - Whether safeguards required for reception of evidence - Whether merely material upon which expert evidence based.

The first and second respondents were the mother and father respectively of the children M.K., S.K. and W.K., which children, the applicant sought to make wards of court.

During the High Court wardship proceedings, it was alleged that the second respondent had sexually abused his child S.K. The evidence relied upon by the applicant to support its application was (a) the evidence of Mrs H., a speech therapist as to what S.K. had said to her on two occasions, and (b) the evidence of Mr. McG., a senior social worker, of what S.K. said and did at an interview he had with him, a video of this interview was made and seen by the High Court and by the Supreme Court, on appeal.

The High Court admitted the evidence on a de bene esse basis, notwithstanding the objections of the respondents. The High Court made it clear that if the hearsay evidence had been excluded, the other evidence would not have justified the order making the children wards of court.

Based on the hearsay evidence, the learned trial judge made a finding that "[S.K.] has over a period of years been grossly sexually abused by his father and that his mother knew of it and was powerless to stop it."

The children of the two respondents, were taken into the wardship of the High Court, the applicant was appointed their guardian and it was further ordered that the children remain in the custody, care and control of the applicant until further order.

On appeal to the Supreme Court, the respondents submitted that the hearsay evidence should not have been admitted and alternatively, that the said evidence was not scrutinised sufficiently. The applicant submitted that the wardship jurisdiction was inquisitorial in nature, and that the normal rules on hearsay did not apply.

Held by the Supreme Court (Denham, Barrington, Keane, Lynch and Barron JJ.), in allowing the appeal, 1, that the wardship jurisdiction differed from the norm in relation to a lis inter partes in that it was inquisitorial and concerned primarily with the child or children concerned. The welfare of the child was paramount.

In re K. (Infants) [1965] A.C. 201;Scott v. Scott[1913] A.C. 417 considered.

2. That hearsay evidence was admissible in wardship proceedings, particularly in administrative matters, as the nature of the jurisdiction justified a departure from the normal rules of evidence.

In re K. (Infants) [1965] A.C. 201;Scott v. Scott[1913] A.C. 417;Cullen v. Clarke[1963] I.R. 368;R. v. Burke (1912) 47 I.L.T.R. 111;Re: W (Minors)[1990] 1 F.L.R. 203;Southern Health Board v. C.H.[1996] 1 I.R. 219 considered.

3. (Per Denham, Barrington, Keane and Lynch JJ.): That hearsay evidence regarding statements of a child alleging sexual abuse by its parents could be received in the context of assessing the risks to the welfare of the child, but it did not follow automatically that it also was capable of proving the truth of its contents.

Re: W (Minors) [1990] 1 F.L.R. 203;R. v. Khan [1990] 2 S.C.R. 531;H. v H. and C.[1989] 3 W.L.R. 933;Southern Health Board v. C.H.[1996] 1 I.R. 219;Re N. (Child Abuse: Evidence)[1996] 2 F.L.R. 214 considered.Re: P.B. A Minor (F.D.)[1986] N.I. 88 distinguished.

Per Barron J.: That the hearsay evidence of statements made by S.K. to Mrs H. would have been admissible to be used as source material to support an opinion of a properly qualified expert. But Mrs. H. was not such an expert. Therefore, the statements should not have been admitted in such circumstances.

Southern Health Board v. C.H. [1996] 1 I.R. 219 approved.

4. That the essential test was not whether the alleged abuse had occurred but whether there were unacceptable risks to the welfare of the child if the child was not taken into wardship.

Per Denham and Lynch JJ.: That the court must carry out a separate inquiry as to whether the child should give evidence, and if so in what circumstances. Hearing the evidence de bene esse was an unfair process. That process did not have the explicit fair procedures necessary to vindicate rights in determining such an important matter.

Quaere (Per Keane, Lynch and Barrington JJ.): whether evidence adduced by means of a video recording can properly be described as hearsay evidence as the court can see and hear an exact electronic recording of the statement as it was actually made?

Cases mentioned in this report:-

Ares v. Venner [1970] S.C.R. 608.

Cullen v. Clarke [1963] I.R. 368.

Re F.S. (Child Abuse: Evidence) [1996] 2 F.L.R. 158.

Re G. No. 2 (A Minor) (Child Abuse: Evidence) [1988] 1 F.L.R. 314.

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

H. v H. and C. [1989] 3 W.L.R. 933; [1989] 3 All. E. R. 740.

In re Haughey [1971] I.R. 217.

In re K. (Infants) [1965] A.C. 201; [1963] 3 W.L.R. 408; [1963] 3 All E.R. 191.

In re M. an infant [1946] I.R. 334.

Re M. and R. (Child Abuse: Evidence) [1996] 2 F.L.R. 195.

Mapp (a minor) v. Gilhooley [1991] 2 I.R. 253; [1991] I.L.R.M. 695.

McKeon v. Director of Public Prosecutions (Unreported, Supreme Court, 12th October, 1995).

Re N. (Child Abuse: Evidence) [1996] 2 F.L.R. 214.

In re P.B. A Minor (F.D.) [1986] N.I. 88.

People (Director of Public Prosecutions) v. McGinley [1998] 2 I.R. 404; [1998] 2 I.L.R.M. 233.

R. v. Burke (1912) 47 I.L.T.R. 111.

R. v. Khan [1990] 2 S.C.R. 531.

Reg. v. Myers [1965] A.C. 1001; [1964] 3 W.L.R. 145; [1964] 1 All E.R. 877.

Scott v. Scott [1913] A.C. 417.

Southern Health Board v. C.H. [1996] 1 I.R. 219.

The State (D. and D.) v. Groarke [1990] 1 I.R. 305; [1990] I.L.R.M. 130.

Sugden v. Lord St Leonards (1876) 1 P.D. 154.

Re: W. (Minors) [1990] 1 F.L.R. 203.

In re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79.

Appeal from the High Court.

The facts are summarised in the headnote and more fully set out in the judgments of Denham and Barron JJ., infra.

By order of the High Court (Costello P.) dated the 18th January, 1996, the minors M.K., S.K. and W.K., the three children of the first and second respondents were taken into the wardship of the High Court, though the children had been in the custody of the applicant since the 3rd May, 1995, on foot of an ex-parte application to the High Court.

The applicant was appointed their guardian, and it was also ordered that the minors remain in the custody of the applicant until further order.

By notices of appeal dated the 23rd and 27th February, 1996, respectively, the respondents appealed to the Supreme Court. The books of appeal were lodged on the 14th May, 1998.

The appeal was heard by the Supreme Court (Denham, Barrington, Keane, Lynch and Barron JJ.) on the 7th and 8th October, 1998.

Cur. adv. vult.

Denham J. 29th January, 1999

This is an appeal by M.K. the first respondent (the mother) and M.K. the second respondent (the father) against a judgment of the President of the High Court delivered on the 18th January, 1996, wherein it was ordered that the children, the minors M.K., S.K., and W.K. be taken into the wardship of the court. The applicant was appointed their guardian and it was further ordered that the minors remain in the custody, care and control of the applicant until further order.

These proceedings had been instituted by the applicant seeking an order that the three minors be taken into wardship. The minors are:-

• (a) M.K., a son, born on the 30th September, 1982,

• (b) S.K., a son, born on the 17th June, 1984, and

• (c) W.K., a daughter, born on the 28th January, 1986.

This appeal from the order of the High Court raises three issues of law. They are:-

• (1) Is hearsay evidence admissible in wardship proceedings?

• (2) If it is admissible was the High Court correct in law in the manner in which it treated the evidence?

• (3) If it was admissible was the evidence such that the High Court was entitled to find that the children should be taken into wardship?

Facts

The second respondent is in his forties, he was born moderately mentally handicapped and has a severe speech verbal dysfunction associated with genetic deafness. He attended a special school for the mentally handicapped until he reached the age of twelve. The first respondent has had a most troubled life and suffers from a degree of mental handicap. The three children were born to the first respondent and second respondent who were in a relationship not recognised by the law as a civil marriage.

Costello P. held at [1996] 1 I.L.R.M. 370 at p. 383:-

"[S.K.] is a young boy with very serious handicaps. He has a 50% loss of hearing in both ears and has a serious speech impediment. His behaviour has been in the past from time-to-time very disturbed and he was expelled from the school for deaf children and for a year prior to these proceedings was not attending any school. Disturbed behaviour also occurred when he was placed in foster care after the 3rd May, 1995 and this resulted in a critical situation to which the staff of the [applicant] responded with commendable thoughtfulness and considerable personal effort by those directly concerned. With great difficulty a short-term letting of a house was obtained which is now the home for the three children in which they are looked after by caring staff employed by the [applicant]. The [applicant] has arranged for a special teacher to attend on...