See follow up Vol 1 of 2016: https://www.childlawproject.ie/costs-based-on-district-court-rules-awarded-against-cclrp-in-documents-application-judge-regrets-no-state-funds-available-for-such-applications/
The Child Care Law Reporting Project is not entitled to access to social work and guardian ad litem reports, which are not “relevant court documents” in the context of preparing reports, the District Court has ruled.
The project brought an application to the District Court to have access to “relevant court documents”, including social work reports and reports from guardians ad litem, in a case being attended by its reporters which involved two Roma children. According to the Child Care (Amendment) Act 2007, under which the CCLRP was set up, reporters may attend court, prepare reports and have access to “relevant court documents”.
When the matter first came before the District Court the solicitor for the parents in the case said they were not opposing the application. The solicitor for the Child and Family Agency also said they were not opposing it.
The judge said it was necessary that the application be opposed, in order to defend the interests of the children and have a “legitimus contradictor” who would argue against it. He appointed a guardian ad litem for the children, who were both very young, in order to oppose the application. It was then heard by the President of the District Court, Judge Rosemary Horgan. Written submissions were presented to the court by counsel for the CCLRP and the GAL.
Opening the case for the CCLRP its barrister said the issue was, what was the meaning of the term “relevant court documents” mentioned in the legislation. Section 29(5)(i) of the Child Care Act 1991 states that specified people may attend child care proceedings in order to prepare reports, and Section 29(5)(ii) states that those attending may have access to “relevant court documents.” The Child Care Law Reporting Project was established under this Act and the Regulations referred to in the Act, which were made in 2012.
He said the special statutory regime under which the CCLRP operated was very different to the statutory regime under which journalists operated. People were selected to report on the basis the project would assist in the better functioning of the child protection system. It was not just a reporting project.
He said that in submissions on behalf of the GAL the guardian was contending for a meaning to the words “relevant court documents” that would confine it only to official court documents. The word “relevant” allowed the court a discretion, it meant “relevant” to assist the reporting function, having regard to the project’s research function. The word “court” excluded, for example, letters of instruction not submitted to court, but did not restrict documents to “official” court documents.
Referring to 117 (a) of the Rules of the Superior Courts, which was referred to in the GAL submissions, he said the principal effect of these was to allow certain non-personal forms of service. The court should look at the purpose of the provision.
Social work reports or GAL reports were not required in the superior courts. The definition referred to in these Rules of Court were for a specific purpose under the Rules of the Superior Court, and did not purport to have a wider and more general application. Rules of Court were secondary legislation and could not limit the courts. Under the 1964 Courts Act the definition of a District Court document is “any document by which proceedings of the District Court are instituted.”
He said that looking at first principles and the purpose of the Child Care (Amendment) Act, this was to ensure a higher degree of transparency and assist in the better operation of the Child Care Act. This purpose was best served by being able to read and understand relevant documents.
He also referred to Section 40 of the Civil Liability and Courts Act 2004, under which the Oireachtas came to lift the in camera rule in private family law proceedings. This Act was later amended to give a power to access “relevant documents” and to define the documents that could be accessed by those reporting on proceedings. That definition excluded “without prejudice” documents. The 2007 Act did not need to define “relevant court documents” – the term naturally meant documents submitted to court.
Judge Horgan commented: “The Oireachtas had the opportunity to extend it to the Child Care (Amendment) Act, but it didn’t.”
“There is no public policy laid down by the Oireachtas that says these documents should not be seen,” the barrister said. He also referred to the European Court of Human Rights case Mauser v Austria, which stated that excluding public family law from public scrutiny should be subject to careful examination, more than private family law.
Judge: “I understand the purpose of the application. I have to apply the law as it is. Do you mean ‘documents held by the court’?”
Barrister: “Yes, a literal interpretation. But also look at the intention of the Oireachtas in the context of the Act as a whole. A purposive interpretation of the Act is that the CCLRP makes reports for the purpose of transparency in improving the operation of the Act. The privacy of the children can be protected by directions. It would be odd to interpret more narrowly than in private family law cases. In relation to GAL reports, Mr Justice Birmingham has confirmed in McAnaspie that they belonged to the court.”
The barrister for the GAL said it was the breadth of the approach on behalf of the CCLRP that gave rise to concern. Potentially it had very far-reaching ramifications. Referring to a text book on statutory interpretation, she said the word “court” was open to the interpretation that “official court documents” were meant. There was a legal meaning in rule number 117 (a) of the Rules of the Superior Courts and the court should interpret “court documents” in line with the legal terms.
If looking for a purposive interpretation, we should look to the 1991 Child Care Act as a whole, not just the 2007 amendment. The Act as a whole was designed to protect children. If the word “relevant” means relevant to reporting, how much information was necessary for reporting?
The solicitor for the CFA said it was consenting to the application and accepted the submissions on behalf of the CCLRP.
Judge Horgan: “Is it just in relation to CFA documents, or all other documents, including those from the parents, regardless of what’s on the court file?”
CFA solicitor: “Yes.”
The case was adjourned for five weeks and the judge indicated she would give her decision then.
When it resumed she said that another judge had indicated, following a renewal of the Interim Care Order for the children in his court, the parents might have certain views, which would have to be considered before she made her decision.
A barrister representing the parents said that since their position of neutrality towards the application was expressed they had changed solicitor and now wanted to put a new position.
The barrister for the GAL said that the guardian had been contacted the previous day and the parents said they did not accept the position previously put on their behalf.
Judge Horgan: “It’s extremely important that the parents’ views are heard. Also, more cases need to be opened. It is extremely important there is genuine participation by the parents. The parents are here and don’t have an interpreter.”
The father addressed the court in broken English, saying: “Two years in court. Every time told sign, sign.” The judge told them she would give them an opportunity to change solicitor and she adjourned the proceedings for a further five weeks.
The GAL barrister said a cultural mediator had to be involved as well, and the judge agreed. She asked for a representative of the Legal Aid Board to attend the court, and told him: “We need the assistance of a solicitor, an interpreter and a cultural mediator. These are very important matters. [The respondents] want to change their solicitor. I am asking the CFA solicitor to ensure there is a cultural mediator every time the matter is before the court. I am ordering an interpreter to be available in all proceedings, in the Roma language, not Romanian.”
She also asked the lawyers to have regard to a number of judgments, providing them with a list of those required.
When the case resumed the court was told that the parents had reverted to their original solicitor and barrister, and were again adopting a neutral stance in the proceedings. Counsel for the CCLRP and the GAL commented on the cases listed by the judge, who said she would give her judgment later.
In her judgment Judge Horgan said: “The kernel of the issue in this case is that s. 3 of the Child Care (Amendment) Act 2007 amending s 29 (5) of the 1991 Act only permits application for access to ‘any relevant court documents’ in child care cases. A researcher reporting on family law cases under the s. 40 legislative regime [relating to private family law proceedings] may apply for access to ‘any relevant documents’ subject to any directions the court may give in that regard. Furthermore this phrase is specifically defined in s. 40 (11).”
She continued: “The legislature has made a clear distinction between family law proceedings and child care proceedings…. By inserting the word ‘court’ the Oireachtas must be presumed to have intended that the word ‘court’ be given its ordinary meaning….
“The Civil Law (Miscellaneous Provisions) Act 2013 made far-reaching change in the law allowing bona fide press representatives attend both family law and child care proceedings with appropriate and proportionate safeguards concerning privacy…. It also afforded the legislature the opportunity to import the specificity contained in Section 40 (11) of the 2004 Act (as amended) into Section 3 of the Child Care (Amendment) Act 2007 (amending the 1991 Act) but it chose not to do so….
“Dr Coulter has a prima facie statutory right to seek access to relevant Court documents such as Applications, Statutory Declarations of Service, grounding Affidavits setting out the basis of the application as required by S.I 143/2015….
“I am not persuaded by the submissions of the Applicant that on a plain reading of the Act and Rules of Court that she has a statutory right in the context of child care proceedings to seek access to Social Work, Guardian Ad Litem or other professional reports.”
The judge also listed questions that could be put to the High Court in the event of the matter going there for a case stated. The case was adjourned to allow the parties to consider the questions and the issue of a case stated.
When it resumed counsel for the CCLRP said that the project were not seeking to have the case go to the High Court on a case stated, given that the project was time-limited and it was not anticipated that the issue of requiring reports was likely to arise to a great extent from the end of July. The solicitor for the CFA supported the position of the CCLRP. Counsel for the GAL said that if there was an intention to appeal, it would be better to have a case stated. However, she stated that she could put matters no further than that given that her client was content with the judgment that the District Court had given.