High Court delays publication of its judgment finding HSE failed to uphold the rights of a child in care with disabilities – 2022vol1#54

The High Court upheld a previous decision not to publish on the Courts Service website its judgment in a case taken by the mother of a girl with disabilities, who is in care, against the HSE. However, the court stressed that its decision was not to publish the judgment at this time, pending the receipt of the views of the child’s guardian ad litem on the impact of publication on the child, who would shortly turn 18, and that it intended to publish it eventually.

The anonymised judgment had been delivered by Mr Justice Barrett in October 2021, but, following receipt of a letter from lawyers for the HSE, he stated the judgment would not be published on the Courts Service website. The lawyers for the mother, the GAL and the Child and Family Agency had not been aware of the HSE letter prior to the judge’s decision, but had all made it clear they had no objection to the publication of the judgment.

The Child Law Project had attended the original proceedings and was planning to report on them, but considered itself bound by the decision of Mr Justice Barrett in relation to publication. This was despite the fact that the original proceedings had been reported upon in the general media, along with a synopsis of the judgment when it was handed down. The Child Law Project was a notice party to the application by the mother to have the judgment published.

The girl’s mother asked the court to vacate its decision and publish the judgment. In her affidavit to the court the mother of the girl, making the application as her “Next Friend”, stated that she and her husband had considered the judgment carefully and were satisfied it did not contain any information that could lead members of the general public to identify their daughter. They felt that it was in her best interests that the judgment be published. This was also the view of the girl’s guardian ad litem (GAL), who had been discharged in November. The CFA did not object to publication.

In her affidavit the mother stated that their daughter had gone through very difficult experiences, and the judgment served as a vindication of her rights. “The judgment provides an illustration of the commitment of her family to her, [the girl’s] own personal strength, and also a reassurance that what occurred to her was not her fault.” It added that, while it was not possible to ask her opinion at that moment, her family were sure she would feel positively about the judgment in the future.

She added that if the judgment was not published additional difficulties could arise for individuals in similar situations in attempting to achieve a just solution to their problems in the future.

Responding to the HSE’s concern that the publication of the judgment might negatively impact on the child’s progress, the mother expressed her scepticism about the motivation of the HSE, and said that the reporting of the case in the media had had no such impact, as the girl had no means of accessing it. The publication of the judgment on the Courts Service website would be no more likely to be accessed than newspaper reports. She also disputed the HSE contention that sections of the judgment could lead to people identifying her daughter.

The mother’s solicitor also submitted an affidavit to the court, pointing out that the judgment had already been extensively reported in the media, and was the subject of a lengthy article in the Law Society Gazette. The solicitor stated that, given that the case was not heard in camera, it was widely reported and no restrictions on its dissemination had been sought or made, “a legal basis on which the HSE could, and did, request that the judgment be withheld from the public for any period is not alone unclear but non-existent.” He added that the publication of an appropriately redacted and anonymised judgment was an essential part of the administration of justice in public as mandated by the Constitution.

“The Constitution does not contemplate or provide for a ‘corpus’ of secret judge-made law, known only to those who participated in particular proceedings, not least where important issues of the legal responsibilities of executive bodies are concerned,” he stated.

He added that the decision could have a detrimental impact on third parties who had not had an opportunity to address the court on the matter of publication. This included legal representatives in other proceedings who might innocently disseminate it without the consent of the court and the Child Law Project, who had attended the proceedings in anticipation of publishing a report, including the judgment.

The judgment was of significant precedential value, providing an important analysis of where responsibility lay between the HSE and the CFA in situations such as that which had arisen in this case. If it were not published people would not be aware of the important principles it articulated, which may well disadvantage them in seeking to vindicate their rights, the solicitor said.

The HSE submitted a replying affidavit, stating that the girl was very unwell at the time the judgment was delivered and it was concerned its publication would cause her further distress. She had been in a new placement since January, and it was at a very delicate and challenging stage. The HSE did not think it was in her best interests to publish the judgment. It added that it was imperative that the court take into account the views of the girl, who was on the brink of adulthood. She would shortly be moved to adult disability services, involving changes to her environment and the personnel she would be dealing with, and it was important that the progress she had made to date not be jeopardised. She was unaware of the judgment to date, and the HSE did not believe it was in her interests at this time to canvass her views on publication.

The HSE’s affidavit added that as the case had been widely reported there was knowledge of the legal principles involved. However, the full judgment contained details about a very distressing period in the girl’s life, which it would not be in her interests to publish.

In the hearing of the mother’s application to the court, her counsel reiterated the points made in her affidavit, and added that the publication of the judgment was part of a continuum which included the reporting of the original case in the media. This was part of the administration of justice in public.

The HSE had not produced any psychiatric evidence of the alleged adverse effect publication would have on the girl. In relation to the rights of the child, decisions on her welfare should be available to those who knew her best, who loved her and cared for her. The child was entitled to have such decisions made by her parents. This could only be rebutted if the parents failed in their duty to the child. All the evidence was to the contrary.

The judge pointed out that the child was coming up the age of 18, and the mother’s counsel said that at that stage the issue of capacity would arise.

He pointed out that when a person litigates, this ends up in the public domain. This was an inevitable by-product of litigation.

Replying, counsel for the HSE said that they had not made a formal application in relation to publication, they had made their views known through a letter. They had not intended to prevent the publication of the judgment, they were just seeking to set out a number of things the court might take into consideration, including allowing the child time to settle in to her placement. They were not seeking to delay publication indefinitely.

The HSE counsel said that publication was often restricted for vulnerable litigants. She acknowledged that great effort had been made to anonymise the judgment, and the question was at what point it should be published. She said there was a difference between what had been published in media reports and what was in the judgment, and she had herself relied on the judgment in other cases. It remained the position of the HSE that the judgment should not be published at this time. The girl remained unaware of it.

She stressed that the HSE was very concerned that the voice of the child was being ignored in the proceedings. It was no longer the case that the interests of a child were automatically represented by their parents. A child of 16 could make decisions about medical matters. Yet no-one had consulted this child about her views on publication.

Counsel for the GAL pointed out that he had been discharged in November, but would be happy to resume work if asked. He considered that the best interests of the child lay with the publication of the judgment.

Counsel for the mother said that it was interesting the HSE came into court talking about where the best interests of the child lay. Those whom the Constitution charged with advancing the best interests of a child were the parents. The voice of the child was heard through the GAL. “Where is the authority for saying the views of a litigant must be sought before a judgment is published?” he asked.

The judge reserved his judgment.

When he later released it to the parties he stated: “The last thing that I or any judge would want to do is to cause detriment to a child in any way by releasing the full details of an anonymised judgment online….

“I am a lawyer, not a medic or a healthcare provider, and I continue to be told by the HSE, acting in good faith, that to release the documentation online is not in Miss X’s best interests, would likely cause her distress, andthat it might even impact negatively upon her. While I have every respect (and genuine respect) for the well-intentioned views of Miss X’s parents, to which I have had careful heed, I am mindful that they, like me, are not medics or professional healthcare providers; and I, of course, have to weigh duly all the material and views that are properly before me….

“I have not properly had her position put before me concerning this limb of matters, I would be grateful to receive an oral/written report (whatever form best suits him) from the (hereby) re-appointed guardian ad litem, after he takes such steps as he considers in his professional opinion to be appropriate, as to (i)  what I propose, and (ii) whether he is of the view that (a) there are any aspects of matters that I should consider or re-consider, (b) there are any further steps that should be taken by me.”

The court is now awaiting the response of the guardian ad litem.