CCLRP seeks High Court permission to continue reporting secure care cases – 2018vol1#6

In April 2018 the Child Care Law Reporting Project made submissions to Justice Leonie Reynolds of the High Court, with regard to a change in the law which had resulted in special care proceedings being held in camera and the consequent non-presumptive right of the CCLRP to attend those hearings.

Counsel for the CCLRP, Alan Brady BL, submitted that prior to the recent commencement of the Child Care Amendment Act 2011, special care proceedings in the High Court were dealt with pursuant to the court’s inherent jurisdiction. The Child Care Amendment Act 2011 [which stipulates special care orders are applied for under Part IV A of the 1991 act as amended] did not incorporate the 2007 Child Care (Amendment) Act and 2012 Regulations made under that Act. Therefore the CCLRP, who operated under the 2012 Regulations and the 2007 Amendment of the Child Care Act, amending section 29 of the 1991 Act, were now effectively excluded from attending special care proceedings in the High Court. [The 2011 Act had commenced in January 2018 and special care orders were now applied for under Part IVA of the 1991 Act as amended.]

Counsel for the CCLRP told the court that Subsection 5, under section 29 of the 1991 Act, inserted by the Child Care (Amendment) Act 2007 discussed the classes of person governed by Section 29 and identified a list of nominated bodies, approved by the Minister for Children and Youth Affairs, who could attend the District Court Child Care proceedings.

The CCLRP was directly funded by the Department of Children and Youth Affairs and nominated by one of these bodies. Counsel for the CCLRP submitted that their function was of public benefit in disseminating reports on child care proceedings for public use.

The Project was entitled to appear in the District Court as a right, but the Court had the discretion to exclude a reporter where it was deemed appropriate. However, this did not apply to the High Court proceedings because there was no presumption under the 2011 Act that the CCLRP was now entitled to attend proceedings.

Counsel submitted that the High Court judge maintained the discretion to allow reporters in if so deemed appropriate. There was the constitutional presumption that proceedings be heard in public and special care proceedings were now exceptions to the constitutional rule as a statutory exemption.

However, under the New Superior Court Rules, specifically under Order 65a Rule 2, the Court was entitled to allow persons other than parties to the case to attend, under the Court’s discretion.

A leading case in the area regarding this discretion was the McAnaspie case, before Justice Birmingham in 2011 where, after a child died in care an application was made to release reports to the guardian ad litem(GAL), including members of the press. The District Court sought to establish whether it was entitled to lift the in camerarule for the purposes of releasing the documents.

Justice Birmingham distinguished case law, said counsel for the CCLRP, that was determinative of the presence of discretion, under section 29, subsection 1, identical in terms to the new provisions which now affected the CCLRP.

In conclusion, counsel told the court that the CCLRP was voting in favour of the court exercising its discretion in allowing the function of the reporters to take place. “Their research is carried out for the purposes of informing, assisting oversight and feeding into policy”, Mr Brady said. The CCLRP was now funded by the Department of Children and Youth Affairs and had already been reporting over a long time frame [of over five years].

A PhD research student and barrister, Ms Clare Barry, made submissions on her behalf. She wished to begin her research on the High Court process in relation to special care proceedings and how the rights of children were protected and vindicated. There were now no statutory provisions under which she could rely to gain access to the court due to the change in the Regulations.

Ms Barry assured the Court that the focus of her thesis was on the rights of children collectively and the collective protection and vindication of those rights and nobody would be identified.

She submitted that it was a constitutional imperative that the administration of justice was in public, she said that the court had the discretion to allow people into the proceedings other than the parties and that furthermore the court did not have to exercise its discretion to exclude people.

She told the Court that she was also relying on the McAnaspie case, in paragraph 24, page 11 of the judgement, in relation to Section 29, subsection 1 which was of assistance, where he had ruled in a High Court decision that the judge in the District Court had the discretion to lift or modify the in camerarule. “It must therefore follow that the High Court equally has the discretion to lift thein camera rule,” Ms Barry posited. Ms Barry was seeking to ask the Court toexercise its discretion.

In Moser vs Austria, the Court found that the reasons for excluding the public must be subject to scrutiny and judicial control in order to be compliant with the EU Convention. In that case a lack of provision for an in camera rule was challenged and came before the European Court of Human Rights whereMoserheld that it was a private family law matter that involved the State.

Mr Gerry Durcan, senior counsel, made submissions on behalf the GAL. He said the recent amendments to the legislature were “bewildering”. Originally Section 29 of the Child Care Act 1991 enacted that proceedings under Part 3, 4 or 6 would be heard otherwise than in public. In 2007 this was amended to allow a presumptive right for researchers to attend. Then in 2013 section 5a was inserted in Section 29 to give a presumptive right for members of the press to attend. Therefore two categories of people had the presumptive right to attend.

The 2011 Act had inserted part 4a under Section 16 which allowed for the detention of children in special care. This gave the power to the District Court to detain children, however Section 16 was commenced but it never operated in practice because the Minister for Children and Youth Affairs had not certified any units.

Now Section 29, allowing the presumptive right for researchers to attend proceedings under part 4, no longer applied, only 23 NH now applied, submitted Mr Durcan. Therefore the regime for who would have access to special care proceedings had changed, the presumptive right was now gone [from when the court operated under the inherent jurisdiction] and there was no power to let anybody into court other than the parties.

This was a “legislative cockup” said Mr Durcan, “the only legislative choice that has been made is that presumptive rights accrued to researchers and press are no longer there. It is an entirely different thing from saying that the court has no power to let someone in. Irish law says proceedings are to be held in public, justice is to be in public, but of course there is a power to regulate that in the public good. Some Acts say proceedings are to be heard otherwise than in public.”

He reiterated what counsel for the CCLRP had submitted, that just because the presumptive right had been taken away it did not follow that the power of the court to allow someone to attend was gone.

Under 23 NH the normal right of the public no longer applied which begged the question who was entitled to attend.  This is where the significance of the New Court Rules came into play.

Mr Durcan said that Order 65A of the Rules at Rule 2(1) stated that only officers of the court and such other persons as the court may allow may be permitted to be present at the special care proceedings. It regulated who was entitled and not entitled to attend, there were parties who were presumptively entitled to be present and the court could extend its discretion to other persons.

The McAnaspie decision was an entirely relevant case regarding the power of the court. The answer was simpler now, there was a Rule which acknowledged the power of the court to let in other people. “If somebody wants to be here they can simply apply under Rule 2(1) if they don’t have the presumptive right to be here.

“Given that the Department of Children and Youth Affairs is sponsoring the Child Care Law Reporting Project and their legislation is barring the body they are funding to be here there is a touch of Alice in Wonderland about this,” remarked Mr Durcan.

“If there was a strict rule that you couldn’t have anyone here, the whole process would be in breach of the Convention and possibly in breach of the Constitution as well, my simple solution to this is that the Rules regulate the situation. Bring an application under Order 65a rule 2(1) to be here, we don’t have to go as far as McAnaspie because there is a Rule which specifically addresses the situation and allows the court to exercise its power to allow other persons in court.”

The legislation provided for the court to allow people in that did not have a presumptive right. It was a legally flawed basis to exclude press and researchers. He added that the members of the press would have a huge problem with a category of case they had no ability to attend no matter what the case was if a narrower view was taken.

Mr Durcan concluded that the legislation would have to be addressed sooner rather than later and clearly the court should not construe the Child Care Act 2011 as amended in a way that could breach the European Convention or the Constitution.

Barry O’Donnell SC for the CFA told the court that the CFA had no preference to not allow the CCLRP to attend but rather they would have a preference that the previous situation would still apply and that they could attend subject to the anonymisation of reports as standard. He noted that if people could not come in then equally nothing could come out which would prevent the sharing of [critical] information regarding children who were going to special care mental health services outside of the jurisdiction.