The very sensitive nature of child care proceedings leads to little surprise that proceedings are invariably held in camera with strict reporting limits. Recent times have seen the introduction of The Child Care Law Reporting Project. While reporting on cases that occur from day to day in the Child Care list in the High Court and the District Court, proceedings remain in camera.
In the decision of H.S.E. v. McAnaspie  1 I.R. 548 the High Court provided some clarification by way of a consultative case of the extent of the in camera rule. Daniel McAnaspie was a young child and from 2005 was the subject of a Care Order made pursuant to S.18 of the Child Care Act, 1991. Daniel was reported missing in 2010, whilst still in the care of the H.S.E., and his body was later found by members of An Garda Siochana. The post mortem concluded he died as a result of a stabbing. Daniel's next of kin made an application to the District Court seeking an order directing the disclosure of all guardian ad litem reports prepared for Daniel's child care proceedings and further for an application for the lifting of in camera restrictions with regard to the use and publication of the reports made with her consent. In addition the H.S.E. also sought orders allowing it to disclose to An Garda Siochana all information relating to the child care proceedings for the purpose of assisting in the criminal investigation, and to disclose the same information to the Minister of State for Children for the purpose of discharging that office's regulatory functions.
The Irish Times sought permission from the District Court seeking permission to report on the next of kin's application. Subsequently other media organisations made similar applications.
Following a hearing with a view to determining the entitlement of the media to attend and report at, the next-of-kin's substantive application, the District Court sought the opinion of the High Court as to whether it had jurisdiction to authorise the release of documents prepared for the purpose of child care proceedings and to permit the media to report on an application for such release.
The next-of-kin explained that her purpose in bringing her application was to ascertain from the reports more about Daniel's life circumstances. It was argued that she believed that the reports could have revealed that the health authorities failed in their obligation to take general measures to diminish the opportunities for children in care to harm themselves, or to come to harm. She believed that it is possible that the reports may also reveal that Daniel's death could have been avoided by the H.S.E. and that the reports could assist her in securing an inquiry into the care that Daniel received and the circumstances leading to his death.
The guardian ad litem supported Ms. McAnaspie's application to view the reports. The Irish Times submitted that the death of Daniel McAnaspie raised serious public interest issues and that the application by his next-of-kin is a matter of legitimate public interest. Counsel for the newspaper stressed that it was not seeking to intervene or become a party to the application, nor was it seeking disclosure of any information or files. Rather, the newspaper was seeking a specific and limited order entitling it to be present at, and to report on, the application in furtherance of the public interest.
In opposing the application, the H.S.E. argued that it had no specific or principled objection in general to a family accessing material in the manner sought by the McAnaspie family. The H.S.E. stressed that it accepted that children and families who participate in child care proceedings had a legitimate interest in understanding how decisions that affected their welfare were reached and that there was a legitimate public interest in ensuring that child care authorities are accountable. Nonetheless, on the facts of the case before the High Court, the H.S.E. submitted that the District Court did not have jurisdiction to waive or modify the in camera rule and it submitted that the District Court could not acquire jurisdiction, either by acquiescence or consent.
Bermingham J. found that a Care Order made under s. 18 of the Child Care Act, 1991 was automatically brought to an end on the death of the child and there was no requirement that it be discharged formally by the court. The definition of 'child' within that Act did not include a deceased child who had been in the care of the Health Service Executive prior to his or her death. The effect of this was that where a child who had been the subject of a care order was deceased, a judge of the District Court had jurisdiction to hear an application for relief under the provisions of the Act of 1991 by a person who was not a party to the original care proceedings. Further where a child who had been the subject of a care order was deceased, the District Court did not have jurisdiction to give directions or make orders pursuant to s. 47 of Act of 1991 as the child must be 'currently' in the care of the H.S.E.. Section 47 of the Act of 1991 provides that 'where a child is in the care of a health board, the District Court may, of its own motion or on the application of any person, give such directions and make such orders on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order'.
Of crucial importance to future cases, the High Court also held that a Judge of the District Court had a discretion to lift or modify the in camera rule in certain circumstances. This was on the basis that the case law opened before the High Court clearly suggested that the State's obligations and its duties could not sit with a total prohibition on access by family members to material generated during proceedings heard in camera.
It was clear therefore that the District Court had jurisdiction to authorise the release of documents or information concerning a deceased child which were prepared for the purposes of in camera applications pursuant to the Child Care Act. Where release of documents or information concerning a deceased child was authorised, the District Court had power to impose restrictions on the publication or use of such information or documents. The corollary of the discretion to authorise access to documentation was the discretion to impose restrictions on its use.
With regard to the application made by the Irish Times, the High Court was satisfied that the District Court similarly had jurisdiction to permit the media to be present and report on a next of kin's application for the release of the documents of information concerning a deceased child. Bermingham J. was of the view that the general principle that child care proceedings should be held otherwise than in public and that ordinarily there should be no question of media attendance was entirely understandable and obvious. The rule was there to protect the rights of the child and to ensure that details of the private life of the child may not find their way into the media. The question which really arose in this case was whether there might be exceptional situations where a court might wish to depart from the normal procedures and whether, if such situations arose, the court would have jurisdiction to vary the normal procedure. Of course it also followed the District Court had jurisdiction to impose restrictions on the manner in which the media reported on an application for the release of documents or information concerning a deceased child.
For more information, please contact any of the following from our Child Care Law Department:
- Suzanne Dowling, Associate Solicitor
22 July 2013