Re Commission to Inquire into Child Abuse

• Jurisdiction: Ireland
• Judge: MR JUSTICE KELLY
• Judgment Date: 09 October 2002
• Neutral Citation: 2003 WJSC-HC 1901
• Docket Number: [2002 No. 194 Sp.]
• Court: High Court
• Date: 09 October 2002

2003 WJSC-HC 1901

THE HIGH COURT

Record No. 194 Sp./2002

COMMISSION TO INQUIRE INTO CHILD ABUSE, IN RE

IN THE MATTER OF

THE COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000

and

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 25(1) OF THE COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000

BETWEEN

THE COMMISSION TO INQUIRE INTO CHILD ABUSE

Applicant

and

NOTICE PARTY A, NOTICE PARTY B, NOTICE PARTY C and NOTICE PARTY D

Notice Parties

Citations:

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S1

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S3

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4(6)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S5

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S4(1)(B)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S5(3)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S7(4)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S10

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S12

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S14(1)(E)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S20(A)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S20(A)(1)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S20(A)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13(2)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13(2)(A)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S13(2)(C)

HAUGHEY, RE 1971 IR 217

MAGUIRE V ARDAGH 2002 1 IR 385 2001/14/3995

MAGUIRE V ARDAGH 2002 1 IR 447 2002/18/4246

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S12(2)

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S3(2)

KEANE V AN BORD PLEANALA 1997 1 IR 184

O'NEILL V MIN AGRICULTURE 1998 1 IR 539 1997 2 ILRM 435 1998/29/11600

LIVE STOCK (ARTIFICIAL INSEMINATION) ACT 1947

COMMISSION TO INQUIRE INTO CHILD ABUSE ACT 2000 S25(1)

Synopsis:

STATUTORY INTERPRETATION

purpose of legislation

Right to fair hearing - Right to legal representation - Right to vindication of one's good name - Practice direction given by applicant - Number of legal representatives limited at hearing - Whether applicant had jurisdiction to give direction in suit - Commission to Inquire into Child Abuse Act 2000, sections 4, 12, 14, 20 and 25 - Bunreacht na hEireann, Article 40.3 (2002/194Sp - Kelly J - 9/10/2002) - [2002] 3 IR 459

In re An Application pursuant to section 25(1) of the Commission

1 MR JUSTICE KELLY delivered the 9th day of October, 2002

THE PARTIES

The Applicant

2 The applicant is a body corporate established pursuant to the provisions of the Commission to Enquire into Child Abuse Act 2000(the Act). The applicant, through the investigation committee provided for in the Act, has as its function inter alia the making of determinations in respect of the occurrence of child abuse at institutions during the period 1940 to 1999 (or earlier or later at the discretion of the Applicant). Such determinations may include findings as to inter alia the person or persons who committed such abuse and the institutions at which it occurred. Such findings may be published in a report to be prepared by the applicant.

3 In order to carry out its function the investigation committee of the applicant is entitled to take evidence under oath, to direct the giving of such evidence and the production and discovery of documents.

4 The applicant is specifically authorised to apply to this Court in a summary manner for directions in relation to the performance of any of its functions. The instant application is the first occasion upon which it has done so.

Notice Party A

5 In the absence of any rules of court governing the procedure to be followed or the parties to be joined to an application such as this, directions were given by Finnegan P. He directed the joinder of the four notice parties to the proceedings.

6 Notice Party A is a congregation of religious. It is a respondent in respect of one hundred and eighty cases pending before the applicant. That is not the final number of cases in which it is involved. It anticipates that the number will at least double by the end of the current year. It will therefore be dealing with in excess of three hundred and sixty complaints against it. In all of those cases this congregation is named as a respondent. In many such cases individual members of the congregation are also named. Some of the named members of the congregation have died; others have left it; others remain. In the case of deceased members of the congregation or members who have left, legal representatives of the congregation represent such persons in many cases. That is not universally so. In other cases, members of the congregation (particularly those against whom allegations of criminal wrongdoing are made) are represented separately before the applicant.

Notice Party B

7 This notice party is also a congregation of religious. It was involved in the running of twenty six industrial schools during the period under examination by the applicant. As of October 2001 a total of four hundred and ten complaints had been made to the investigation committee of the applicant concerning this congregation in respect of institutions run by it.

8 The internal organisation of this congregation is much more complex than in the case of notice party A. This is so because the congregation in its present form did not exist at the time of the alleged events the subject matter of the applicant's enquiries. At present there are four Irish provinces each with its own leadership team. There is also a central leadership team, the members of which are elected separately from the provincial leadership teams. This is all of comparatively recent origin. Historically there were numerous individual houses each of which was entirely autonomous. Some of them had a small number of branch houses. One or other of these would have been solely responsible for an individual industrial school which might have been attached to it.

Notice Party C

9 This notice party is a complainant before the investigation committee of the applicant. An oral hearing in respect of her complaint was before the investigation committee of the applicant on the 5th March 2002. On that occasion two preliminary applications were made on behalf of this notice party. The first was to permit junior counsel and a senior solicitor in the firm of solicitors representing this notice party to be present in a non participatory role at the hearing. The second was to permit the spouse of the notice party to be present at the hearing in a supportive role. Both applications were refused although the spouse was permitted to remain in a designated consultation room with in the precincts of the hearing room.

Notice Party D

10 This notice party was employed as an untrained teacher at an industrial school from 1936 until 1969. During that time she taught students aged between eight and twelve years. She is now 87 years of age. She is a respondent in proceedings before the investigation committee in two cases. It is however anticipated that further complaints will be made against her. She is also to give evidence as a witness before the investigation committee.

11 It is sixty six years since this notice party commenced employment at the industrial school. Approximately fifty years have elapsed since the events the subject matter of the allegation latest in time made against her. During the period of her employment in the school the applicant had varying degrees of contact with approximately one thousand five hundred students.

Further Party

12 Although not the subject on any direction by Finnegan P. the Minister for Education and Science appeared on this application and participated in it.

The Reason for this Application

13 The applicant has determined that it is just and appropriate that in the course of giving evidence before the investigation committee all parties entitled to appear should have their legal representation limited to there being present on behalf of such parties a solicitor and one counsel only. Having so determined, it has applied to this Court pursuant to Section 25 of the Act to seek the Courts approval in that regard.

14 The application is opposed by all of the notice parties on a variety of grounds. The sole party who appeared in support of the stance taken by the applicant was the Minister for Education and Science..

15 In order to understand how this has come about it is necessary to look in some detail at the task which has to be undertaken by the applicant, the legislation applicable and the procedures which have been followed.

The Legislation:

16 In the year 2000 the legislature passed the Act. Its long title describes it as:

"an Act to establish a Commission to be known as the Commission to Inquire into Child Abuse, to investigate child abuse in institutions in the State, to enable persons who have suffered such abuse to give evidence to committees of the Commission, to provide for the preparation and publication of a report by the Commission containing the results of its investigation and any recommendations it considers appropriate for the prevention of child abuse, the protection of children from it and the actions to be taken to address any continuing effects of child abuse and those who have suffered it and w provide for related matters."

17 Section 1 of the Act defines "abuse". It is defined as:

18 a "(a) The wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

19 (b) the use of the child by a person for sexual arousal or sexual f that person or another person,

20 (c) failure to care for the child which results in serious impairment of the physical or mental health or...