McK (F) v L (O)

CourtSupreme Court
Docket Number[S.C. No. 116 of, Record No. 116/2010
JudgeMr Justice Finnegan
Judgment Date28 Oct 2010
JurisdictionIreland
Neutral Citation[2010] IESC 51

[2010] IESC 51

THE SUPREME COURT

Finnegan J.

O'Donnell J.

McKechnie J.

Record No. 116/2010
McK (F) v L (O)
[2010] IESC 51
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947
IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976
IN THE MATTER OF THE RESIDENTIAL INSTITUTIONS REDRESS ACT 2002
THE CIRCUIT FAMILY COURT
MIDLANDS CIRCUIT
COUNTY ROSCOMMON

BETWEEN

F McK
APPLICANT

and

O L
RESPONDENT

COURTS OF JUSTICE ACT 1947 S16

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28

COMMISSION TO INQUIRE INTO CHILD ABUSE (AMDT) ACT 2005 S34

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5A(1)

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5A

STATUS OF CHILDREN ACT 1987 S18

P (C) v P (D) 1983 ILRM 380 1982/13/2538

K (R) v K (M) UNREP FINLAY 24.10.1978 1978/9

D (J) v D (D) 1997 3 IR 64 1998 FAM LJ 17 1998/35/6235

DAUBNEY v DAUBNEY 1976 FAM 267 1976 2 WLR 959 1976 2 AER 453

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(6)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(9)

B (M) v CMSN TO INQUIRE INTO CHILD ABUSE UNREP O'NEILL 7.11.2007 2007/5/806 2007 IEHC 376

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S27(2)

MCGREAL v DPP UNREP HANNA 14.7.2008 (EX TEMPORE)

ASHBURTON v PAPE 1913 2 CH 469

WAGSTAFF v WAGSTAFF 1992 1 WLR 320 1992 1 AER 275 1992 1 FLR 333 1992 1 FCR 305 1992 PIQR P308

C v C (FINANCIAL PROVISION: PERSONAL DAMAGES) 1995 2 FLR 171 1996 1 FCR 283

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(4)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(5)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(5A)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S28(5B)

COMMISSION TO INQUIRE INTO CHILD ABUSE (AMDT) ACT 2005 S34(H)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S1

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5A(3)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S13(8)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S13(14)

COMMISSION TO INQUIRE INTO CHILD ABUSE (AMDT) ACT 2005 S34(E)(iv)

FAMILY LAW

Maintenance

Dependent children - Obligation to support- In camera - Whether disclosure of fact and amount of award to Circuit Family Court impaired policy of preserving confidential information - Whether Circuit Court entitled to take into account award from Residential Institutions Redress Board when deciding maintenance - Whether such award constituted an income, property or financial resource - CP v DP [1983] 3 ILRM 380, RK v MK (Unrep, Finlay P, 24/10/1978), JD v DD [1997] 3 IR 64 and Daubney v Daubney [1976] 2 WLR 959 considered; MB v Commission to Inquire into Child Abuse [2007] IEHC 376 [2008] 3 IR 541, Ashburton (Lord) v Pape [1913] 2 Ch 469, Wagstaff v Wagstaff [1992] 1 FLR 333 and C v C. [1995] 2 FLR 171 distinguished - Family Law (Maintenance of Spouses and Children) Act 1976 (No 11), s 5A(3) - Status of Children Act 1987 (No 26), s 18 - Questions answered (116/2010 - SC - 28/10/2010) [2010] IESC 51

McK(F) v L(O)

PRACTICE AND PROCEDURE

In camera proceedings

Confidentiality - Information provided to Residential Institutions Redress Board - Prohibition from disclosure of information - Statutory confidentiality requirement - Exclusion of operation of prohibition -- Whether Circuit Family Court within statutory exclusion - Whether applicant entitled to details of award to respondent by Residential Institutions Redress Board - MB v Commission to Inquire into Child Abuse [2007] IEHC 376 [2008] 3 IR 541, Ashburton (Lord) v Pape [1913] 2 Ch 469, Wagstaff v Wagstaff [1992] 1 FLR 333 and C v C. [1995] 2 FLR 171 distinguished - Courts of Justice Act 1947 (No 20), s. 16 - Residential Institutions Redress Act 2002 (No 13), s 28 - Commission to Inquire into Child Abuse (Amendment) Act 2005 (No 17), s 34 - Questions answered (116/2010 - SC - 28/10/2010) [2010] IESC 51

McK(F) v L(O)

116/2010 - Finnegan [nem diss] O'Donnell McKechnie - Supreme - 28/10/2010 - 2011 1 IR 263 2010 32 7940 2010 IESC 51

Facts: The proceedings arose by way of case stated from an appeal as to a District Court maintenance order. The applicant had sought maintenance for the support of two children from the respondent pursuant to the provisions of the Family Law (Maintenance of Spouses and Children) Act 1976, as inserted by the Status of Children Act 1987. It emerged in the District Court that the respondent was in receipt of monthly payments from a settlement of a claim from the Residential Institutions Redress Board. The issue arose as to firstly, whether the applicant was entitled to details of the award and secondly, whether the Court was entitled to take into account the award when deciding the issue of maintenance. The respondent submitted that the provisions of s. 28 Residential Institutions Redress Act 2002, as amended, provided for confidentiality and that this confidentiality was designed to encourage those who suffered abuse in residential institutions to come forward. S. 28 (6) of the Act of 2002, as amended, further provided inter alia for a prohibition of the publication of any information concerning an award that might lead to the identification of a person, relevant person or institution.

Held by the Supreme Court per Finnegan J. (O' Donnell, McKechnie JJ.) that for the respondent to furnish information as to the amount of the award to her would not be to publish information concerning "any other person", relevant person or institution by name nor would this lead to the identification of any other person, relevant person or institution. The proceedings for the maintenance order would be in camera and there would be no further disclosure of the fact of the application or the amount of the award. The clear policy of the Act of 2002 in preserving confidential information relating to applications would not be impaired by disclosure for the purposes of the proceedings. The answer to the first question posed would thus be in the affirmative. The award to the respondent by the RIRB payable in instalments was income, property or other financial resources for the purposes of the legislation and so the second question would also be answered in the affirmative.

Reporter: E.F.

Mr Justice Finnegan
Finnegan [nem diss]
1

This matter comes before the court by way of a case stated from the Circuit Family Court pursuant to section 16 of the Courts of Justice Act1947.

2

Section 28 of the Residential Institutions Redress Act2002 as amended by section 34 of the Commission to Enquire into Child Abuse (Amendment) Act 2005 provides as follows:-

3

2 "28. (1) A person (including the Board and the Review Committee) shall not, subject to this section, disclose information other than the information specified in subsection ( 4) or (5) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act.

4

(2) A person referred to in subsection (1) shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act.

5

(3) Documents that are -

6

(a) provided to or prepared by the Board and where appropriate the Review Committee, or

7

(b) prepared by a person for the Board or the Review Committee in the course of the performance of the functions of such person as a member of the Board, Review Committee, a member of the staff of the Board or the Review Committee or an adviser,

8

shall not constitute Departmental records within the meaning of section 2(2) of the National Archives Act, 1986.

9

(4) The Board shall keep a record of following information -

10

(a) the name, address and date of birth of the applicant,

11

(b) the name of the institution concerned,

12

(c) the period in which the applicant was resident at the institution, and

13

(d) the amount awarded to the applicant under this Act,

14

and such records shall be available to the Minister for the purposes of section 13 (13) and to any party against whom proceedings are initiated contrary to section 13 (12).

15

(5) Notwithstanding subsection (1) or any other provision of, or an instrument made under, a statute or any other rule of law, a person shall disclose information other than the information specified in subsection (4) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act to -

16

(a) a member of the Garda Siochána if the person is acting in good faith and reasonably believes that such disclosure is necessary in order to prevent an act or omission constituting a serious offence, and

17

(b) to an appropriate person (within the meaning of the Protections for Persons Reporting Child Abuse Act, 1998) if the person is acting in good faith and reasonably believes that such disclosure is necessary to prevent, reduce or remove a substantial risk to the life or to prevent the continuance of abuse of a child.

18

2 (5A) Nothing in subsection (1) operates to prohibit the production of a document prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee, or given in evidence in such application or review to -

19

(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

20

(b) such body or other person as may be prescribed by order made by the Minister when the body or person concerned is performing the functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matters as may be so prescribed.

21

3 (5B)Nothing in subsection (1) operates to...

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