Health Service Executive (HSE) v McAnaspie (Deceased)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 15 December 2011
• Neutral Citation: [2011] IEHC 477
• Court: High Court
• Docket Number: [2011 No. 209SS]
• Date: 15 December 2011

Health Service Executive (HSE) v McAnaspie (Deceased)

[2011] IEHC 477

IN THE MATTER OF THE CHILD CARE ACTS 1991 - 2007

AND

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

AND

IN THE MATTER OF CATHRIONA McANASPIE, DANIEL McANASPIE (DECEASED) AND OTHERS

BETWEEN

HEALTH SERVICE EXECUTIVE

APPLICANT

AND

MARTINA McANASPIE(DECEASED)

RESPONDENT

[2011] IEHC 477

209 SS/2011

THE HIGH COURT

FAMILY LAW

Children

District Court - Jurisdiction - Child care - Care order - In camera rule - Whether care order brought to end on death of child - Whether legislative definition of child included deceased child - Whether District Court had jurisdiction to lift or modify in camera rule for child care proceedings - Whether District Court had jurisdiction to permit media to be present and report on application for release of documents - In re R (MJ) (A Minor) [1975] 2 WLR 978; In re X (Wardship: Disclosure of Documents) [1992] 2 WLR 784; People (DPP) v WM [1995] 1 IR 226; MP v AP (Practice: in camera) [1996] 1 IR 144; Eastern Health Board v Fitness to Practise Committee [1998] 3 IR 399; Eastern Health Board v E (No 2) [2000] 1 IR 451; Martin v Legal Aid Board [2007] IEHC 76, [2007] 2 IR 759; Miggin (a minor) v Health Service Executive [2010] IEHC 169, [2010] 4 IR 338; Moser v Austria (App No 12643/02) (Unrep, ECHR, 21/9/2006); B and P v UK (App Nos 36337 & 35974/97) (Unrep, ECHR, 24/4/2001); Jordan v UK (App No 24746/94) (Unrep, ECHR, 4/5/2001) and Irish Times Ltd v Ireland [1998] 1 IR 359 considered; RM v DM (Practice: in camera) [2000] 3 IR 373 distinguished - Courts (Supplemental Provisions) Act 1961 (No 39), s 52 - Child Care Act 1991 (No 17 ), ss 18 and 47 - Case stated answered (2011/209SS - Birmingham J - 15/12/2011) [2011] IEHC 477

HSE v McAnaspie

Facts The applicant (Cathriona McAnaspie) was the mother and next-of-kin of Daniel McAnaspie (deceased). The deceased had been in care when he went missing and was subsequently found dead. The applicant sought access to reports prepared for the Health Service Executive (HSE) regarding her son whilst he was in care. A number of questions arose for the determination of the High Court by way of case stated from the District Court. Principally among the questions were issues relating to the expiry of a care order, should a child die whilst in care. In addition issue were raised as to what parties were entitled to seek relief under the Child Care Act 1991 and as to whether the District Court was entitled to make orders releasing certain documents (prepared in accordance with the 1991 Act). In addition issues were raised to what restrictions could be placed upon the issuing of some documents and what access the media were entitled to.

Held by Birmingham J in answering the case stated. A care order expired upon the death of the child concerned. Whether the in camera rule applied mandatorily or by way of judicial discretion did not affect the authority of the court to permit disclosure of protected information where justice required that disclosure should be made. The reports in question were created by the guardian ad litem for the Court's benefit and were submitted to the Court. The Courts were well placed to determine whether it was proper that disclosure of the reports be made and had the jurisdiction to impose restrictions if permitting access to such documents. The restrictions to be imposed were quintessentially a matter for the judge of the District Court. The Court had jurisdiction to permit the media to attend and report on such applications in exceptional circumstances and to impose restrictions on the nature and extent of that reporting.

Reporter: R.F.

CHILD CARE ACT 1991 S18

CHILD CARE ACT 1991 S47

CHILD CARE ACT 1991 PART III

CHILD CARE ACT 1991 PART IV

CHILD CARE ACT 1991 PART V

CHILD CARE ACT 1991 S18(2)

EASTERN HEALTH BOARD v JUDGE MCDONNELL 1999 1 IR 174 1999/11/2651

CHILD CARE ACT 1991 S2(1)

WESTERN HEALTH BOARD v M (K) 2002 2 IR 493 2001/24/6537

BANK OF IRELAND v PURCELL 1989 IR 327

R v GWYNEDD CO COUNCIL, EX PARTE B 1992 3 AER 317 1991 2 FLR 365 1991 FCR 800

CHILD CARE ACT 1991 S31

CONSTITUTION ART 34

CHILD CARE ACT 1991 S29(1)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S25

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S34

DOMESTIC VIOLENCE ACT 1996 S16(1)

FAMILY LAW ACT 1995 S33(2)(B)

ADOPTION ACT 1952 S20

SUCCESSION ACT 1965 S56(12)

SUCCESSION ACT 1965 S119

SUCCESSION ACT 1965 S122

STATUS OF CHILDREN ACT 1987 S36(4)

R (MJ) (A MINOR) (PUBLICATION OF TRANSCRIPT), IN RE 1975 2 WLR 978 1975 2 AER 749

ADMINISTRATION OF JUSTICE ACT 1960 S12 (UK)

X & ORS (MINORS) (WARDSHIP: DISCLOSURE OF DOCUMENTS), IN RE 1992 2 WLR 784 1992 2 AER 595 1991 FCR 953

DPP v M (W) 1995 1 IR 226

PUNISHMENT OF INCEST ACT 1908 S5

P (M) v P (A) 1996 1 IR 144 1996/14/4455

CHILD CARE ACT 1991 S29

EASTERN HEALTH BOARD v FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL 1998 3 IR 399 1998/18/6670

R LTD, IN RE 1989 IR 126 1989 ILRM 757 1989/8/2304

CONSTITUTION ART 34.1

S (PS) v S (JA) (ORSE C) UNREP BUDD 22.5.1995 1998/10/2967

A CO COUNCIL v W (DISCLOSURE) 1997 1 FLR 574 1996 3 FCR 728

EASTERN HEALTH BOARD v E & ORS (NO 2) 2000 1 IR 451 1999/11/2666

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40

MARTIN & DOORLEY v LEGAL AID BOARD & ORS 2007 2 IR 759 2007/39/8098 2007 IEHC 76

MIGGIN (A MINOR) v HEALTH SERVICE EXECUTIVE (HSE) & GANNON 2010 4 IR 338 2010/34/8533 2010 IEHC 169

M (R) v M (D) 2000 3 IR 373 2001 2 ILRM 369 2000/12/4590

B (EH) v FITNESS TO PRACTICE COMMITTEE UNREP MURPHY (TRANSCRIPT NOT AVAILABLE)

B & P v UNITED KINGDOM 2002 34 EHRR 19 2001 2 FLR 261 2001 2 FCR 221

CHILDREN ACT 1989 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

MOSER v AUSTRIA 2007 1 FLR 702 2006 3 FCR 107

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

JORDAN v UNITED KINGDOM 2003 37 EHRR 2 11 BHRC 1 2001 ECHR 327

IRISH TIMES LTD & ORS v IRELAND & ORS 1998 1 IR 359

1 Judgment of Mr. Justice Birmingham delivered the 15th day of December 2011

2 1. These proceedings arise from the tragic death of Daniel McAnaspie in 2010 and concern an application by his next-of-kin, Cathriona McAnaspie, for access to reports prepared by Daniel's guardian ad litem during his time in the care of the Health Service Executive(HSE).

3 2. Daniel McAnaspie was born on the 13 ^th November 1992 and was the subject of a care order made on the 12 ^th April 2005 under s.18 of the Child Care Act 1991, which committed him to the care of the HSE for so long as he remained a child. Care orders were also made in respect of Daniel's four siblings, two of whom are still within the care of the HSE. A guardian ad litem, Ms. Aileen Dunne Quirke was was appointed by the District Court as guardian to all five children in 2004. In the time that she acted as Daniel's guardian ad litem, Ms. Dunne Quirke brought three applications pursuant to s. 47 of the 1991 Act, seeking directions regarding his care. In the course of those applications, the guardian prepared a number of reports to which the family is now seeking access. It appears that in all, she prepared a total of twenty-six reports between September 2004 and March 2010 in respect of the family of which fourteen related specifically to the late Daniel McAnaspie.

4 3. On the 26 ^th February 2010, Daniel McAnaspie was reported missing after failing to return to his place of residence. His body was discovered by members of An Garda Síochána on 13 ^th May 2010, and a post-mortem concluded that Daniel died as a result of a stabbing. His violent death is now the subject of an on-going criminal investigation. At the time of his death Daniel was seventeen years old and was under the care of the HSE.

5 4. On the 21 ^st May 2010, Daniel's next-of-kin, Cathriona McAnaspie, made an application to the District Court seeking an order directing the disclosure to her of all guardian ad litem reports prepared for the purposes of Daniel's child care proceedings, including all applications under s. 47 of the Child Care Act 1991, and further, for the lifting of in camera restrictions with regard to her use and publication of the reports and any subsequent use or publication made with her consent. Ms. McAnaspie also sought an order joining her as a party to the proceedings, to the extent necessary, including all s. 47 Child Care Act applications brought as a result of those proceedings relating to the late Daniel McAnaspie.

6 5. On 25 ^th May 2010, an application was made on behalf of the Irish Times newspaper seeking permission to report on Ms. McAnaspie's application. Subsequently, similar applications were made on behalf of other media organisations. Judge Toale of the District Court made orders permitting the Irish Times to attend in court in relation to Ms. McAnaspie's application and to report the nature of the application, the submissions made, the Court's judgment and any order made, provided that any such report did not disclose confidential or privileged information or information that tended to disclose the identity or welfare circumstances of any other child not represented in the application.

7 6. The HSE also made an application on 25 ^th May 2010, seeking an order allowing it to disclose to An Garda Síochána copies of all information relating to the proceedings under the Child Care Act 1991 regarding Daniel McAnaspie for the purpose of assisting it in its criminal investigation and also allowing it to disclose information to the Minister for Children and Youth Affairs for the purpose of the discharge of her regulatory functions. The HSE also sought an order declaring that it could not disclose any privileged or confidential information relating to any other minor, without leave of the Court. Judge Toale...