Southern Health Board v CH

• Jurisdiction: Ireland
• Judgment Date: 11 March 1996
• Date: 11 March 1996
• Docket Number: [1995 No. 1634 S.S.]
• Court: Supreme Court

Southern Health Board v. C.H.

In the matter of s. 52 of The Courts (Supplemental Provisions) Act, 1961, and in the matter of s. 58 of The Children Act, 1908, and in the matter of s. 11 of The Guardianship of Infants Act

1964.

Southern Health Board

Applicant

and

C.H.

Respondent

[1995 No. 1634 S.S.]

High Court

Supreme Court

Children - Custody - Evidence - Hearsay - Admissibility - Fit person summons - Allegations of child sexual abuse - Whether video recording of interview with child by social worker admissible - Consultative case stated - Children Act, 1908 (8 Edw. VII, c. 67), s. 58 - Interpretation Act, 1923 (No. 46), s. 13 - Interpretation Act, 1937 (No. 38), s. 20 - Guardianship of Infants Act, 1964 (No. 7), s. 3 and s. 11, sub-ss. (1) and (2) - Child Care Act, 1991 (No. 17), s. 48 - Criminal Evidence Act, 1992 (No. 12), s. 27.

Section 58 of the Children Act, 1908, provides, inter alia, that a child under the age of 15 years may, in certain circumstances, be placed in the care of a "fit person."

Section 13, sub-s. 2 of the Interpretation Act, 1923, provides:—

"Where this Act or any Act passed after the commencement of this Act repeals any other enactment, then, unless the contrary intention appears, the repeal shall not —

• (c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed; or

• (e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, . . . as aforesaid; and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repealing Act had not been passed."

Section 20, sub-s. 1 of the Interpretation Act, 1937, provides:—

"Whenever any statute or portion of a statute is repealed and re-enacted, with or without modification, by an Act of the Oireachtas, references in any other statute or in any statutory instrument to the statute or portion of a statute so repealed and re-enacted, shall, unless the contrary intention appears, be construed as references to the portion of such Act of the Oireachtas containing such reenactment."

Section 3 of the Guardianship of Infants Act, 1964, provides:—

"Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."

Section 11 provides:—

"(1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.

(2) The court may by an order under this section —

• (a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;

• (b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable."

Section 48, sub-s. 1 of the Child Care Act, 1991, provides:—

"On the commencement of Part IV any child who is in the care of a health board pursuant to an order made under Part II or IV of the Children Act, 1908, shall be deemed to be the subject of a care order committing him to the care of that health board and the provisions of Part IV shall apply with the necessary modifications."

Section 27, sub-s. 1 of the Criminal Evidence Act, 1992, provides:—

"Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that he is capable of giving an intelligible account of events which are relevant to those proceedings."

E.H., an infant, was placed by her father, the respondent, in the voluntary care of the applicant following the death of her mother in 1990.

During proceedings in the District Court brought by the applicant pursuant to s. 58 of the Act of 1908, the court was informed that allegations of sexual abuse by the father of his daughter were to be advanced by the applicant and that the relevant evidence comprised a video recording of an interview with the child held by a social worker, as well as the social worker's opinion as to the validity of the allegations.

The respondent objected to the admission into evidence of the video tape on the grounds that it was hearsay. The District Judge held that the video tape was admissible but stated a case for the opinion of the High Court as to whether he had been correct in so doing.

Held by Costello P., in answering the case stated in the affirmative, 1, that the nature of proceedings brought pursuant to s. 58 of the Act of 1908 was virtually the same as the jurisdiction exercised by the court in wardship proceedings and, accordingly, the court had a discretion to admit hearsay evidence of children.

Re K. (Infants) (Unreported, High Court, Costello P., 18th January, 1996) applied.

Semble: That there were strong arguments to support the view that the principles relating to the reception of hearsay evidence applied equally in proceedings under Part IV of the Act of 1991 as they did to those under s. 58 of the Act of 1908.

2. That such discretion could only be exercised where the court was satisfied that it was necessary to do so in the interests of the child, as where (a) the child was too young to give evidence in court, or (b) the court was satisfied that the child should not be required to undergo the trauma of giving evidence in court.

Re K. (Infants) (Unreported, High Court, Costello P., 18th January, 1996) applied.

3. That the weight to be given to such evidence was a matter for the court.

Re K. (Infants) (Unreported, High Court, Costello P., 18th January, 1996) applied.

4. That, when hearsay evidence was contained in a video recording which it was proposed to admit in evidence, (a), it should be given, prior to the hearing, to a person against whom allegations of wrongdoing were made and, (b), that person should be afforded an opportunity to submit evidence to rebut any conclusions suggested by the hearsay evidence.

5. That the present proceedings could be maintained and a valid enforceable order made notwithstanding the repeal of s. 58 of the Act of 1908 by the Child Care Act, 1991, because nothing in the Act of 1991 indicated any intention express or implied which prohibited the application of s. 13 of the Interpretation Act, 1923.

On appeal by the respondent it was

Held by the Supreme Court (O'Flaherty, Blayney and Barrington JJ.), in dismissing the appeal, 1, that the proceedings in question were in essence an inquiry as to what was best to be done for the child in the particular circumstances pertaining and were similar to proceedings where a court was exercising its wardship jurisdiction.

In re K. (Infants) [1965] A.C. 201 approved.

2. That the focus of the District Judge's inquiry must be exclusively on the welfare and best interests of the child.

3. That the key evidence in this case was that of the social worker which should be regarded as expert testimony and, as such, was subject to cross-examination.

4. It was a matter for the District Judge to accept or reject that evidence having given the respondent every opportunity to engage his own expert testimony in that regard.

5. That the video recording of the interview with the child was not to be admitted as the independent evidence of the child but rather as a portion of the material on which the expert evidence of the social worker would be based.

R. v. Khan [1990] 2 S.C.R. 531 distinguished.

6. That the District Judge would be justified in admitting the evidence of the video recording if he was satisfied, having heard such expert evidence as he thought right, (a) that the child was incompetent to give evidence, or, alternatively, (b) that the trauma the child would suffer would make it undesirable that she should give viva voce evidence.

7. That, for the purpose of these proceedings, the District Court was permitted, by virtue of s. 20 of the Interpretation Act, 1937, to operate as if the Act of 1908 had not been affected by the Act of 1991.

Cases referred to in this report:—

Attorney General v. O'Sullivan [1930] I.R. 552; (1930) 64 I.L.T.R. 181.

In re P.B., a minor [1986] N.T. 88.

Bradford City Metropolitan Council v. K. [1990] 2 W.L.R. 532.

Director of Public Prosecutions v. J.T.(1988) 2 Frewen 141.

M.F. v. Superintendent Ballymun Garda Station [1991] 1 I.R. 189; [1990] I.L.R.M. 767.

Gallagher v. Revenue Commissioners [1995] 1 I.R. 55; [1995] 1 I.L.R.M. 241.

H. v. H. and C. [1989] 3 W.L.R. 933; [1989] 3 All E.R. 740.

In re Haughey[1971] I.R. 217.

In re K. (Infants) [1965] A.C. 201.

Re K. (Infants) (Unreported, High Court, Costello P., 18th January, 1996).

Mapp (a minor) v. Gilhooley [1991] 2 I.R. 253; [1991] I.L.R.M. 695.

R. v. Brasier (1779) 1 Leach 199.

R. v. Burke (1912) 47 I.L.T.R. 111.

R. v. Khan [1990] 2 S.C.R. 531.

State (D. and D.) v. Groarke [1990] 1 I.R. 305; [1990] I.L.R.M. 130.

Case Stated.

The facts and relevant statutory provisions have been summarised in the headnote and are fully set out in the judgments, infra.

A fit person order summons was issued by the applicant on the 27th July, 1994, pursuant to s. 58 of the Children Act, 1908, and its hearing commenced in Cork District Court on the 15th March, 1995, having been adjourned from time to time.

On the 4th January, 1995, the respondent had issued an application pursuant to s. 11 of the Guardianship of Infants Act, 1964, against the applicant. Both summonses were heard together.

On the 8th September, 1995, allegations of sexual abuse of...