Health Service Executive -v- M & ors (Joining of Party)

JudgeDaly J.
Judgment Date25 March 2013
Neutral Citation[2013] IEDC 9
Case OutcomeApproved
Date25 March 2013
CourtDistrict Court (Ireland)
[2013] IEDC 9
AN CHUIRT DUICHE THE DISTRICT COURT
HEALTH SERVICE EXECUTIVE
APPLICANT
-AND-
M, X & THE GAL
RESPONDENTS
CHILD CARE ACT, 1991— SECTION 49
IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3, CHILD 4.
25 March 2013
1. This is an applicat ion under section 47 of t he Child Care Act 1991 (the 1991 Act) by the Health Servic e Executive (t he HSE) asking
the Court t o make an order granting an exemption to the HSE from disclosing to M t he first named Respondent that portion of the
social work file relating to an allegation of s exual abuse made by X (a young man in the care of t he HSE but not related to t hese
proceedings) against M, t he Respondent mother of four c hildren, three of whom are currently in the c are of the HSE.
2. On 27 February 2013 the District Court judge hearing the c ase agreed with the position of t he Guardian ad Litem (GAL) that it was
proper for the Court to know of the allegations made by X and decided the information was relevant t o the care order proceedings.
The judge proceeded to join X as a third party to t hese sec tion 47 proceedings only. The judge later recused himself from
adjudicating this matter.
3. In April 2012, X disclosed and a lleged that he had bee n sexually abused by M, the mother of t wo children also in care a nd residing
in the same residential unit as X. At this time these t wo children of M c ontinue to reside in that residential unit; Child 1 who is
currently residing there in an after c are arrangement, and Child 2 who is the subject of a c are order to age 18.
4. M is also the mother of two ot her children, Child 3 and Child 4, who cont inue to be subjec ts of interim care orders under sec tion 17
of the 1991 Act. T he Court has bee n told it is not the HSE’s intention to seek a further extension of t he interim care orders in respect
of Child 3 and Child 4 on the expiration of the c urrent orders on the 10 April 2013. The Court has been advised t hat it is the HSE’s
intention to reunify Child 4 with M on t hat dat e and that from that date Child 3 will be placed in a voluntary care arrangement by M
pursuant to sec tion 4 of the 1991 Act and he will be placed in a kinship placement.
5. X is now a 17- year-old young person in the c are of the HSE. X has had a very difficult c hildhood and history in care. X has a
significant history of mental health diffic ulties that have resulted in suicidal ideation, self- harm, and at least 7 suicide at tempts. T he
Court has heard evidence that X’s response to external st ressors negatively impacts his mental health and is likely to lead to f urther
suicidal ideation or even perhaps further att empts at suic ide. The Court has been told of X ’s fears for his own saf ety and t he safet y
of his girlfriend and their c hild posed by the risk of reprisal from M’s older children (Child 1 and Child 2) if they bec ome aware of his
allegation against M. X does not want to do any thing with the allegations and does not wish t o withdraw the allegations.
6. This is the HSE’s applicat ion under section 47 of the 1991 Act for leave t o allow a limited portion of material held on social work
files to be e xempted from disclosure to M. T he HSE suggested t his material is potentially adverse to M and in the usual course of
events t he HSE would disclose suc h material to M. However, in the c urrent circumstance s the HSE does not intend to rely on the
disclosures of X in making its dec isions for the c are of M’s two younger c hildren (Child 3 and Child 4); the HSE has considered the
allegations and has assessed that e ven if they are assumed to be true t he allegations do not impact on the plans for M’s c hildren. The
HSE is satisfied that even if t he allegation against M by X is true it does not impose a risk to M’s children beyond M’s addiction
difficulties.
7. The allegations have been disclosed t o all parties’ legal representatives and the legal representatives for M ordered not to disc lose
the information to M.
8. Counsel for the HSE suggeste d the issues here are c an the Court or any of t he parties have regard to these allegations of X
against M without disclosure to M, and, should the Court have regard to the rights of X in its c onsideration of these proceedings?
Counsel suggested the risk to X if the information is disclosed is the real risk of his suicide, t he likely to exacerbation of X’s mental
health difficulties as X has a history of several att empts on his own life in the past , and also the risk to X from M’s oldest child, Child 1
(now an adult), if he learns of the alleged incident. The HSE did not c all X to give ev idence. Counsel further advised t hat it is t he
HSE’s intention to withdraw t he sect ion 18 Care Order applications on the 10 April 2013 and not proceed t o seek further Interim Care
Orders for Child 3 and Child 4 provided M continues t o abstain from drug and alcohol use.
9. Counsel for M argued that in this matter the Court should consider 3 issues:
i. Is the allegation relevant? Counsel ac knowledged this has already been det ermined by the initial District Court
judge, but raises the quest ion: is there anyone w ho wants t o prove t he allegation? If no one wants to prove it, she
argues, it is not relevant .
ii. If the allegation is relevant t hen is it relevant t o the proc eedings? Counsel for M noted t hat on 10 April 2013, the
HSE will be withdrawing its se ction 18 applicat ion for Care Orders in respect of Child 3 and Child 4 and the Interim
Care Orders in respect of Child 3 and Child 4 will expire. Counsel agued this is a purely ac ademic exercise.
iii. Counsel for M further argued that this se ction 47 applicat ion pertains to M’s c hildren only and t herefore has to
touch on their welfare, but t his application is prompted by the welfare of X. She argued t his is not the f orum to
protect the interest s of X as this Court is dea ling with the rights of M’s c hildren. Counsel argued that the HSE is
asking the Court to a ct outside of its jurisdict ion and that X needs to be protect ed elsewhere.
10. Counsel for the GAL stat ed the allegation made by X against M is relevant for c onsideration by this Court and should impact on
M’s children and the HSE’s plans for the c hildren, either by slowing down the reunification plan or stopping it altoget her. Counsel noted

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