Health Service Executive -v- EL & anor (Hearsay)

• Judge: Horgan P.
• Judgment Date: 05 February 2013
• Neutral Citation: [2013] IEDC 4
• Case Outcome: Approved
• Date: 05 February 2013
• Court: District Court (Ireland)

[2013] IEDC 4

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

EL & AL

RESPONDENTS

CHILDREN ACT 1997 — SECTION 23

IN THE MATTER OF CHILD 1, CHILD 2, CHILD 3, CHILD 4

5 February 2013

1. In an application to extend interim care orders pursuant to sec tion 17(2) of t he Child Care Act 1991 (the 1991 Act) in respec t of

the subject children, the HSE and t he Guardian ad Litem (GAL) respectively brought applications pursuant t o section 23 of t he

Children Act 1997 (the 1997 Act ) to admit hearsay evidence of Child 1, who is 15 years of age.

2. Both applications were made on Notice to t he parties and heard by t he Court on 5 February 2013.

3. The Notic e issued by t he HSE included a schedule of stat ements made to the Soc ial Worker by Child 1 on 23 and 24 January 2013.

4. The Notic e issued by t he GAL included a schedule of s tatements made to t he GAL by Child 1 on 22 January 2013.

5. The Court hea rd the submissions on behalf of the HSE and the e vidence of the Soc ial Worker in support of their application. These

can be s ummarised as f ollows:

(i) that it would not be in t he interests of the w elfare of Child 1 to give direct evidence in this case as it would

significantly impact on Child 1’s emotional wellbeing and cause her distress and upset and t hat it w ould likely cause

damage to the already fragile relationship between Child 1 and her mother;

(ii) that t his evidence is nec essary in the interests of t he welfare of the c hild;

(iii) that taking evidence by video-link or with other c onditions imposed by the court wo uld not protect Child 1’s

welfare in this ca se;

(iv) that allowing this statement into ev idence would not give rise to prejudice to the respondent mother.

6. The Court hea rd the submissions on behalf of the GAL and the ev idence of t he GAL in support of the GAL’s applicat ion. These c an

be summarised as follows:

(i) that it would not be in Child 1’s best interest s to attend a nd be cross- examined in Court;

(ii) that sec tion 23 offers the c ourt a wide discret ion to allow evidence of t his kind in this way;

(iii) the GAL’s role is to represent to t he c ourt the views and the opinion of c hildren and in the ordinary c ourse of

proceedings does not need to prove what he has been told unless this goes beyond the represent ation of views and

opinions and strays into the area of evidenc e.

7. Counsel for the respondent mother argued that Child 1 is competent t o give evidence, that the respondent mother has a

fundamental right to cross- examine and test the evidence and t hat allowing this hearsay evidenc e could result in adverse

consequenc es to the mother. Counsel argued that t he evidence of the child in this case could be given by way of v ideo link and

subject t o conditions imposed by the court t o safeguard the child’s interest and welfare.

8. Counsel for the respondent father submitted that Child 1 should not be called as it would not be in her best interests a nd that t he

state ments should be admitted as evidence.

9. In considering the application by t he applicant HSE, I must c onsider that t he HSE has a duty to sat isfy the court t hat t here is

reasonable cause t o believe the child has been assaulted, abused, ill-treate d or neglected or that t he c hild’s health deve lopment or

welfare has been, is being or is likely to be avoidably impaired or neglect ed. In this instanc e the HSE seeks to extend an interim care

order, and must sa tisfy t he court that t here is reasonable ca use to believe suc h circumstanc es c ontinue to exist a nd that it is

necessary f or the protec tion of the c hildren’s health or welfare t o so do. Where t he HSE intends to rely on the evidenc e of a child in

such procee dings by way of state ments made to a third party and where t he HSE does not intend to c all the c hild as a witness in t he

usual manner then an applicat ion for admitting suc h hearsay evidenc e will be required to be brought to t he co urt subject to sec tion

23 of the 1997 Ac t.

10. In considering the application by t he GAL, I acc ept t hat it is t he role of t he GAL to present t he views and opinions of the children

to t he court, which sta tements would not in the usual course require the making of applicat ion for such st atements t o be admitted

before the c ourt pursuant t o sec tion 23 of t he 1997 Act. However, except ional circumstances may arise from time to t ime where

information and stat ements will be made by a child to a GAL and which t he GAL should properly bring before the c ourt as e vidence of

assault, abuse, ill-treatment or neglect or of instanc es where the child’s health development or welfare has been, is being or is likely

to be av oidably impaired or neglected. In such exceptional circumstanc es, an applicat ion for admitting suc h hearsay evidenc e will be

required to be brought to t he court subject to sec tion 23 of the 1997 Act .

11. Sect ion 23 permits the inc lusion of hearsay evidence of a c hild subject t o the proc edures (notice and particulars of st atements)

and enquiries (consideration of the c hild’s age or interest of welfare, the inte rests of justice, risk of unfairness to the parties a nd all

the c ircumstances) set out in the sect ion and quoted here in full.