A hearing of a HSE application for a Care Order for three children was adjourned to enable the HSE to write to the DPP seeking a DVD copy of a Garda interview with one of the children. The children are currently in care under an Interim Care Order.
At the beginning of the hearing the mother’s barrister objected to the fact that the HSE’s book of evidence contained allegations of physical abuse made by the child in the Garda interview as she claimed it was hearsay. She was seeking a DVD copy of the interview. The court heard that a social worker from the HSE was present during the interview and her report had included the allegation. When the barrister stated that the chronology in the book of evidence contained hearsay, the judge commented that it was “replete with hearsay”.
The interview was not in the possession or control of the HSE. When the HSE solicitor said she would not be relying on the interview in her application for the Care Order, the Judge told her: “You are analogous to a criminal prosecution. You have an obligation to bring all the evidence to court. It’s not for you to decide what evidence to bring or not to bring.”
The solicitor for the HSE was asked if she had subpoenaed the guard to produce the interview and she told the judge that she was advised it would jeopardise their criminal investigation. The judge remarked “and its absence may jeopardise your care application”.
The judge asked: “Which is more important? These Care Order proceedings or a potential criminal prosecution?” Anything in the book of evidence which was not supported by witnesses would appear to be inadmissible and “what’s not proved, comes out [of the proceedings],” he said. He noted that the Gardai did not appear to have instituted criminal proceedings.
The mother’s barrister cited Irish case law stating that procedures in the recording of interviews must be scrupulously fair and parents should be shown the evidence or copies of interviews must be made available to them. “I can’t even respond to the fact that allegations have been made without seeing the DVD,” she said. “This is a case which involves the severing of a child from its parents. There are statements and assertions which aren’t proved. It seems these allegations are a core part of the HSE’s case.”
The judge rose for a short period to consider the matter. When he returned he referred to a UK case which had been opened to him on the previous week which seemed to have some relevance. This was a case where a child had been interviewed and the authorities had initially refused to disclose the record of the interview. When the record of the interview was ultimately disclosed it was clear that the person had been wrongly identified. This case concerned an action for damages and the court held that it was essential that the parents are made aware of the potential importance of these interviews. The question of whether these interviews should be disclosed should not be a matter for the local authority, the UK court had ruled.
The judge in the Dublin District Court said that interviews must be available to parents even if they don’t ask for them and he did not understand why the fact that the gardai were having an investigation prevented them from making the interview available. “Why is the evidence not available to the court, particularly where there is no prosecution in being? There is an interview in existence. There is a DVD record. The respondent mother, in a timely way, has asked you to produce it. Why is it not produced?”
The HSE solicitor said: “I don’t have a copy of it”. The judge suggested that somebody should subpoena the guards to produce it. “If the guards refuse then they can be here and explain why they won’t produce it. Which is more important, the Care Order proceedings or a potential criminal prosecution?” he asked.
Addressing the HSE solicitor, the judge said it would seem the obligation was on the HSE to produce the interview or explain why it should not be disclosed. In the UK case the consequence was that when the transcript was disclosed it turned out that the wrong person was accused. “There may be nothing like that on the tape but who’s to know?” he asked.
It was, he said, about procedural fairness. “You intend to rely on garda evidence that allegations were made to her. You intend to rely on the fact of physical abuse against the mother in the absence of her seeing the tape.” The mother’s barrister said the HSE was trying to get the video evidence in by the back door by including the allegation in the social worker’s report.
The judge said the social worker’s report was full of concerns about alcohol abuse, physical abuse allegations and concerns of neglect. “What weight am I to give to that? It has no weight unless you are saying the allegations are true… I’m not interested in what you allege. I’m interested in what you can prove”.
The judge said the court did not have to wait for the gardai to bring a prosecution. “I don’t think I can receive allegations and they (the parents) are entitled at least to hear why they can’t see the transcript.” The mother’s barrister said she had written on the previous day to the gardai seeking a copy of the DVD. “We are where we are because the HSE made a decision to rely on the garda interview and didn’t interview the child and certain consequences flow from it.” The judge said if the child had been interviewed by someone else “we wouldn’t have the additional complications of the DPP.”
When the hearing resumed after a recess, the HSE solicitor told the judge she was going to contact the DPP seeking the release of the DVD and if the office refused asking what were their objections. A second option was to see if the social workers would meet with the child but she didn’t know if he would disclose anything. She said the HSE believed it was important to seek the full Care Order. The judge said that other people may have other applications to make: “It may well be that you would want to interview the children. It’s a question of what’s in the best interests of the children.”
The mother’s barrister said that her client came to court anxious to proceed and hoping for a ruling in her favour. She was hoping for the resumed care of her children and she was looking for increased access.
The judge adjourned the HSE’s Care Order application and the HSE solicitor said the social workers would meet with the parents to discuss increased access to the three children in care. The Interim Care Order was extended.