Health Service Executive -v- DC & anor (Admission of Hearsay)

• Judge: Toale J.
• Judgment Date: 18 October 2011
• Neutral Citation: [2011] IEDC 7
• Case Outcome: Approved
• Date: 18 October 2011
• Court: District Court (Ireland)

[2011] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

DC & BB

RESPONDENT

CHILD CARE ACT, 1991— SECTION 24

IN THE MATTER OF CHILD 1

18 October 2011

Preliminary issue

1. What is at issue at this early sta ge of t he proceedings is whet her social worker evidence, and spec ifically t he evidence of Social

Worker 1, regarding allegations made by X should be admitted by the Court where X will not be in Court t o give direct evidence.

2. X is not a party t o these proceedings and is not t he subject of t hese procee dings. She is the siste r of the respondent father.

When both she and t he respondent fa ther were minors, she made a number of serious allegations against the respondent father,

which said allegations are reported in soc ial work reports prepared by the applicants, the existenc e of which allegations have been

reported by the applicants to professionals carrying out asses sments in the ca se including assessments pertinent t o the respondent

father’s suitability and/or capac ity to c are for the subjec t c hild.

3. It appears t hat at all times since the c ommencement of t hese proce edings, the applicants were aware of historic allegations, in

particular of violence, against the respondent father by various members of his family including X. Nevertheless, in the c ourse of

dealing with this case , serious consideration was being given to fat her becoming a primary carer for the subjec t c hild (Child 1).

Psychological ass essment of the respondent fat her indicated that he was at low risk of perpetrat ing violence against his daughter, in

light of the allegations known t o the psyc hologist at the dat e of t hat as sessment.

4. In or around January 2011, the applicants bec ame aware of further allegations against t he respondent father, which we re

reportedly recorded in what are refe rred to as t he “area eight” files. T hese allegations were primarily made by X. These allegations

have consist ently been denied by t he respondent father. There have been a number of court orders regarding disclosure, interviewing

with regard to suc h allegations, and the furnishing of suc h information to experts for assessment.

5. Prior to commencement of the full hearing of these proceedings, it was indicated by the respondent f ather that he would raise an

objection t o the admission of hearsay evidence of t he allegations made by X. The applicant s and the other parties t o the proc eedings

were on notic e of t his objection, and legal submissions have been furnished by the applicants and both respondents. Counsel for

Guardian ad litem has made oral submissions.

6. X is now an adult aged 27 years. It has been est ablished in evidence that she att ended at a meeting with the applicant s in

February 2011 and that she indicat ed at that meeting that she might be willing to give evidence in thes e proceedings. At that

meeting she stated to t he applicants t hat she suffered from depression and that she had highs and lows, and that she was t aking

medicat ion. It has been s tate d by the a pplicants that this meeting was an “introduc tory” meeting. It has bee n acc epted by the

applicants t hat this meeting was se t up by t hem in the conte xt of t hese proceedings i.e. t hey would not have had any reason t o

meet with X were it not for t he existence of t hese proceedings. T he applicants s tate that at t hat meeting it was arranged that t here

would be further telephone c ontac t bet ween them and X. T he applicants s tate d that they have made several attempts t o telephone

X, and that they wrote t o the address provided by her. The applicants also stat e that they called to X’s address on 11 Oct ober 2011,

and discovered t hat the house was va cant and for sale. T he applicants ac cepted t hat X had not been issued with a subpoena. The

applicants st ated t hat t hey had no medical evidence regarding her mental state.

7. In proceedings pursuant to s ect ion 18 of the Ac t, the Court is c learly conduct ing an inquiry. Sec tion 24 of the Act provides that :

“[i]n any proceedings before a c ourt under this Ac t in relation to the c are and protec tion of a child, the c ourt,

having regard to the rights and duties of parents, whether under the Const itution or otherwise, shall—

(a) regard the welfare of the c hild as the f irst and paramount consideration, and

(b) in so far as is prac ticable, give due consideration, having regard to his age and understanding, to

the wishes of the c hild”.

8. In EHB v MK [1999] 2 IR 99, the Supreme Court dealt with the issue of hearsay e vidence in inquiry proceedings. The judgment

Denham J cont ains the following passages (pages 108 – 115):

“First Issue

The first issue for consideration is whet her hearsay evidence is admissible in wardship proceedings. There are a

number of important relevant fac tors when considering the rule against the use o f hearsay evidenc e and wardship

proceedings.

Fact ors:

1. The hear say rule

The rule against t he use of hearsay evidence w as developed by judges t hrough common law. It is a rule developed

to protec t fair trial process. In general, assertions made by persons who are not called as w itnesses are inadmissible

to prove t he truth of the matters s tate d therein. Such as sertions are excluded for a number of reasons including

such matters as that the aut hor was not on o ath when he made it; it was not made in a public plac e but rather in