Health Service Executive -v- SO & anor (Section 23 Application by GAL - Role of GAL - Expert Witness - Party to the Proceedings)

Case OutcomeApproved
CourtDistrict Court
Docket NumberN/A
JudgeHorgan P.
Judgment Date06 Nov 2013
Neutral Citation[2013] IEDC 19
[2013] IEDC 19
AN CHUIRT DUICHE THE DISTRICT COURT
DUBLIN METROPOLITAN DISRICT
HEALTH SERVICE EXECUTIVE
APPLICANT
-AND-
SO & PSA
RESPONDENTS
CHILD CARE ACT, 1991- SECTION 18(1) AND SECTION 24 CHILD CARE ACT, 1991; SECTION 23 CHILDREN ACT, 1997; ROLE OF
THE GUARDIAN AD LITEM – WHETHER EXPERT WITNESS OR PARTY TO PROCEEDINGS; & APPLICABILITY OF SECTION 23 TO
THE GUARDIAN AD LITEM
IN THE MATTER OF Child 1, Child 2, Child 3 and Child 4
CHILDREN
6 November 2013
1. This is an applicat ion pursuant to Sec tion 23 of t he Children Act, 1997 (hereinafter referred to as the 1997 Act ) brought by t he
Guardian Ad Litem.
2. An Application by t he HSE for a Care Order in respect of the c hildren is pending before t he Court.
3. The matters at issue bet ween the parties in relation to the Sect ion 23 Application are; firstly whether t hat sec tion applies to a
Guardian Ad Litem (GAL), sec ondly whether t he Guardian Ad Litem is a party to the procee dings or is an Expert Witness, and whether
in either capac ity the Guardian Ad Litem is subjec t to the Const itutional constraints of fair procedures. Last ly whether the notice
served by the Guardian Ad Litem under Sec tion 23 in these proc eedings is sufficient notice of the st atements allegedly made by the
children to the Guardian Ad Litem and now sought to be admitted as evidence within parameters of that s ect ion.
4. Sect ion 23 of the 1997 Act is c ontained in Part III of t hat Ac t which relates to the Evidence of Children in civil proceedings.
Sect ion 19 of that Act defines “stat ement” to mean any representat ion of fac t or opinion however made by a child. The Act then
explores the means by which the c hild may, with leave of t he court give evidence, inc luding by t elevision link and with or without the
intervention of an intermediary for the purposes of c ross examination in evidence given in that manner.
“23.—(1) Subject t o subsection (2), a st atement made by a c hild shall be admissible as ev idence of any fact therein
of which direct oral evidence w ould be admissible in any proceeding to whic h this Part applies, not withstanding any
rule of law relating to hearsay, w here the c ourt c onsiders that—
(a) the c hild is unable to give evidence by reason of age, or
(b) the giving of oral evidence by the c hild, either in person or under section 21, would not be in the interest of the
welfare of t he child.
(2) (a) Any st atement referred to in subsec tion (1) or any part thereof shall not be admitte d in evidence if t he
court is of the opinion that, in the interests of justice , the st atement or t hat part of the st atement ought not to be
so admitted.
(b) In considering whether the st atement or any part of the stat ement ought to be a dmitted, the c ourt shall have
regard to all the c ircumstances, inc luding any risk that t he admission will result in unfairness to any of the parties to
the procee dings.
(3) A party proposing to adduc e evidence admissible in proceedings to whic h this Part applies by virtue of
subsect ion (1), shall give to the other party or parties t o the proceedings—
(a) such not ice, if any, of t hat fa ct, and
(b) such partic ulars of or relating to t he evidence,
as is reasonable and pract icable in the c ircumstances fo r the purpose of enabling such party or parties to deal with
any matter arising from its being hearsay.
(4) Subsect ion (3) shall not apply where the part ies conc erned agree that it should not apply”.
5. Sect ion 24 then provides for the weight, if any, t o be attac hed to any state ments admitted under Sec tion 23 and requires regard
to be had t o all the c ircumstances f rom which any inference ca n reasonably be drawn as to the ac curacy or otherwise of the
state ments so admitted. Subsect ion (2) of Sec tion 24 provides that :
“(2) Regard may be had, in partic ular, as to whet her—
(a) the original state ment was made contemporaneously with the oc currence or e xistence of the matters st ated,
(b) the ev idence involves multiple hearsay,
(c) any person involved has any motive to c onceal or misrepresent matters,

To continue reading

Request your trial