Southern Health Board v H (C)
| Jurisdiction | Ireland |
| Judge | [NEM DISS],O'Flaherty J. |
| Judgment Date | 11 March 1996 |
| Neutral Citation | 1996 WJSC-SC 2438 |
| Docket Number | (29/96) |
| Court | Supreme Court |
| Date | 11 March 1996 |
1996 WJSC-SC 2438
THE SUPREME COURT
O'Flaherty J.,
Blayney J.,
Barrington J.,
AND
AND
BETWEEN:
and
AND
and
and
Citations:
CHILDRENS ACT 1908 S58
GUARDIANSHIP OF INFANTS ACT 1964 S11
MAPP V GILHOOLEY 1991 2 IR 253
CRIMINAL JUSTICE ADMINISTRATION ACT 1914
CRIMINAL EVIDENCE ACT 1992 S27
CRIMINAL EVIDENCE ACT 1992 S27(1)
R V BURKE 47 ILTR 111
CONSTITUTION ART 42.5
CHILD CARE ACT 1991
FINNEY V SUPERINTENDENT BALLYMUN GARDA STATION 1991 1 IR 189
R V KHAN 1990 2 SCR 532
GUARDIANSHIP OF INFANTS ACT 1964 S3
K (INFANT), IN RE 1965 AC 201
D, STATE V GROARKE 1991 1 IR 305
INTERPRETATION ACT 1937 S20
CHILD CARE ACT 1991 PART IV
CHILD CARE ACT 1991 S48
CHILDREN ACT 1908 PART II
CHILDRENS ACT 1908 PART IV
Synopsis:
EVIDENCE
Admissibility
Hearsay - Exclusion - Rule - Relevance - District Court - Proceedings - Application for order directing minor to be supervised by a fit person - Rule excluding hearsay evidence - Rule inapplicable where court discharging its function as ~parens patriae~ - Discretion of District Court to receive video evidence concerning complaint of parental sexual abuse of minor - Social worker to be treated as expert witness - (29/96 Supreme Court - 11/3/96)
|Southern Health Board v. C.H.|
INFANTS
Protection
Proceedings - Evidence - Hearsay - Admissibility - Rule excluding hearsay - Court's function as ~parens patriae~ - Application for order directing minor to be supervised by a fit person - Evidence in support of application - Rule excluding hearsay evidence - Rule inapplicable to court's function in the protection of children - Discretion of District Court to receive video evidence concerning complaint of parental sexual abuse of minor - Child Care Act, 1991 (Commencement) Order (S.I. 258/95), art. 3 - Interpretation Act 1923, s. 13 - Interpretation Act, 1937, s. 20 - Children Act 1908, s. 58 - Child Care Act, 1991, s. 79 - (29/96 - Supreme Court - 11/3/96) - [1996] 1 I.R. 231 - [1996] 2 ILRM 142
|Southern Health Board v. C.H.|
Judgment of the Court delivered on the 11th day of March, 1996 by O'Flaherty J. [NEM DISS]
This is an appeal brought by CH, the father of the young child who is the subject of these proceedings, from the judgment of Costello P. delivered on the 23rd January, 1996 arising on a consultative case stated from the District Court.
The judgment that I come to deliver is the judgment of the Court.
In the course of the case stated, Judge MacGruaire sets forth that the child in question was born on the 27th September, 1989, so that she is now six and a half years of age. On the 7th August, 1990, following the death of her mother, she was referred to the Southern Health Board ("the Board") by the gardai. On the 9th August, 1990 the child was placed in the foster home of a family and, on the same day, her father signed a consent form placing her in the voluntary care of the Board.
On the 8th September, 1990, the father signed an "admission to care" document which included an application by him to have the child admitted to the care of the Board and to her being placed in foster or residential care. It appears that the father was in prison from 7th May, 1991 until he was released in June, 1993. A place of safety order was made by the District Court on the 27th July, 1994. This was followed by a fit persons order summons dated the 27th July, 1994, issued under s. 58 of the Childrens Act, 1908.
On the 4th January, 1995 the father issued an application under s. 11 of the Guardianship of Infants Act, 1964and the two summonses were heard together in the District Court.
At the District Court hearing on the 8th September, 1995 allegations of sexual abuse against the father were raised by the Board for the first time and reference was made to videotapes of interviews with the child that would support these allegations. Following legal argument on the 18th September, 1995, the learned district judge gave a written decision of the 25th September, which he has, very helpfully, reproduced in the case stated.
At the time that this question of sexual abuse was first mentioned, nine witnesses had already been heard, eight of whom were witnesses of the Board. Only one witness on behalf of the father had been presented, and that was to facilitate the particular witness.
The district judge recounts in the course of the case stated:-
"The Board, … sought to introduce evidence of Mr. Jim O'Leary who had interviewed the infant and had made videotapes of these interviews in respect of the sexual abuse allegations. The solicitor for the respondent, Mr. Howard, had been furnished with copies of the tapes [in advance]. I felt Mr. Howard should have adequate opportunity to view the tapes, also his client, and to take and give instructions in relation to these matters. Mr. Howard said that he had no objection to my viewing the tapes, subject to the law in relation to the matter and that he would not be in a position to cross-examine Mr. O'Leary then. I adjourned the matter to consider submissions on the law in relation to the videotaped interviews and Mr. O'Leary's evidence. At the hearing on the 18th September, 1995, Mr. Howard objected, formally, to the admission of the tapes into evidence and to the evidence of Mr. O'Leary based on the tapes."
Having heard submissions, the district judge expressed the following tentative views as to how he would approach the case:-
"In my view the use of the videos of the interviews conducted by Mr. O'Leary with the five year old infant, and Mr. O'Leary's evidence should be considered in the context of: the constitutional provisions calling for vindication of the rights of the child and the father, the fact that the infant in the case is unrepresented; the special and possibly unique category of the matter; and the legislative rights of the infant to its welfare being regarded as the first and paramount consideration; the constitutional rights of the father to fair procedures; the expertise of Mr. O'Leary in the area of sexual abuse of children; the hearsay rule.
The court must keep in mind that any statements of the child and the conduct of the child on videotape are not in a courtroom … [but] that, also, statements are unsworn....
The respondent would be at real disadvantage if the videos did not exist and evidence by Mr. O'Leary was received — the videos might well contain statements or conduct of the child tending to favour any refutation stance of the respondent to the allegations of sexual abuse. ……
The right of the respondent to fair procedures, if the videos were used in this case, would in my view be met by an expert employed on behalf of the respondent who could view and consider matters on the tapes and if such an expert deemed it necessary, and it did not harm the child, could interview the child — and video such interview for submission to the court. With such expert assistance, cross-examination, adducing evidence in rebuttal would be open to Mr. Howard for the respondent."
A further important consideration with the district judge was the fact that Mr. O'Leary was a man who had considerable expertise, being a senior social worker with the Board. He holds a Bachelor of Social Science degree, with a professional diploma in applied studies dealing with sexual abuse cases involving the very young. It appears that he had been involved in the local child sex abuse unit for a considerable time. As the district judge pointed out, it would be open to the respondent to call an expert to assist in meeting the allegations.
The judge compared the evidence that Mr. O'Leary would give to that of a medical expert. It is clear that he was approaching the case on the basis that the chief evidence that would be given would be the oral testimony of Mr. O'Leary as to his assessment of the situation; the tapes would be of assistance in supporting the points that he would make and the advantage of the tapes, above a recounting of conversations with the child, was that the district judge would have the opportunity of seeing the tapes, as would the respondent and his advisers.
It will be clear, therefore, that this case is not so much about creating an exception to the hearsay rule but rather as to how the expert evidence of Mr. O'Leary should be approached. It is important, however, to examine that question in the light of the special care that has to be given to the situation of children at risk with the requirement that the rights of other parties must, of course, as far as practicable be safe-guarded too.
The learned President concluded that the nature of the proceedings under the 1908 Act were virtually the same as the jurisdiction exercised by the Court in wardship proceedings and he referred to a previous decision of his own: Re K ( Infants) where he had decided that hearsay evidence was admissible in wardship proceedings. He said that he did not consider that the rules made by judges when acting as arbitrators in a lis inter partes are appropriate in carrying out the inquiry and investigation as to what is in the interests of the welfare of the infant, with which this application is concerned.
The President considered that the tapes should be admitted in the light of the safeguards proposed by the district judge. He went on to add the following proviso:-
"The court has a discretion to admit hearsay evidence of children in proceedings instituted under s. 58 of the 1908 Act. This discretion should be exercised in favour of...
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