A District Judge has ruled that the District Court has jurisdiction to lift the in camera (in private) rule in child care proceedings. He gave his ruling in the course of an application by a barrister appearing for the father to have the rule lifted in order that documents and files on his case, held by a number of agencies, be released to his solicitor so that the solicitor could advise him as to whether or not he could sue the HSE for negligence.
All child care proceedings are held in camera and while the judge ruled that the court could in principle lift the rule, he said he would give his decision later about lifting it in this particular case.
The judge said the first issue was whether the court had jurisdiction to lift the in camera rule at all and then, if he was entitled to, on what basis should he make an Order of that nature. He heard legal submissions from barristers appearing for the HSE, the father and the guardian ad litem.
The judge asked the HSE barrister was she prepared to allow the court to exercise a general discretion if he found that the court does not have jurisdiction to raise the in camera rule. The barrister said no, that the court was statute based and the only application before the court was an application under Section 47 of the Child Care Act 1991 which gave the court jurisdiction to give directions and make orders on any question affecting the welfare of the child.
This application, she said, had nothing to do with the welfare of the child. The father was very clear about the purpose of his application to lift the in camera rule. It was about an intended negligence action against the HSE and the welfare of the child was not involved in the application. It was not an action that came under the Child Care Act at all. She said there had to be some element of constraint in the application of Section 47 and this was a case where it applied.
The father’s barrister argued that her client could only turn to Section 47 of the Act and that a very generous and broad interpretation should be given to it. There was no other mechanism for them to make the application and if there was an easier way to do it they would have done so. She referred to the case of Eastern Health Board v McDonnell in which Judge McCracken granted a wide jurisdiction to the court and had described Section 47 as “an all-embracing and wide-ranging provision” which “was not qualified in any way” and to the High Court decision in HSE v McAnaspie which held that the District Court had power to release documents concerning the care of a child to family members.
The GAL’s barrister said his client had to consider the impact on the child involved in the proceedings and, whether it was an application pursuant to Section 47 or Section 29, which states that proceedings shall be heard otherwise than in public, the welfare of the child would be affected. It would be open to the father at a later stage to make an application to the High Court and at this time it was open to him to make this application but he had difficulties with the scope of it. The child was affected by this application and it was, he said, a novel application.
The judge said that a question affecting the welfare of the child arose by virtue of the application to lift the in camera rule and the HSE barrister reiterated that if the court was looking at Section 47 “it has to involve the child. Central to that has to be a child or child-related matters. Otherwise where’s the end to it?”
The judge rose to consider the matter and on return he held that, on analysis, the court, following the ruling in the McAnaspie case, had the power to raise the in camera rule for a variety of reasons and he ruled that the court had jurisdiction to raise the in camera rule in this particular case.
The application gave rise to an issue which might affect the welfare of the child and what was requested was a direction that the in camera rule pursuant to Section 29 of the Act be lifted. “So in effect”, he said. “There is an application under Section 29.” He said that the court might have arrived at a different conclusion had the application been brought solely pursuant to Section 47.