The District Court lifted the in camera (in private) rule in a case where the father has a potential claim in negligence against the HSE.
The District Court had previously ruled that the court, in principle, has jurisdiction to lift the in camera rule in child care proceedings (see Volume 2, case 14). The father, through his legal representatives, applied to have the rule lifted in this case so that he could instruct a firm of solicitors in relation to a potential negligence action against the HSE arising out of child care proceedings.
The father applied for a copy of: the Legal Aid Board file in the case; all court attendances of the barrister, solicitor and GAL; all HSE social work reports and/or any correspondence on file. There was also an application for a transcript of the digital audio recording (DAR) from the commencement of proceedings to date and into the future until the determination of the proceedings. The judge granted the disclosure, to the father and his legal team, of all of the above material.
The judge had previously decided that the in camera rule could be lifted following the decision in HSE v McAnaspie. In that case it was held that there was no absolute embargo on the publication of information deriving from proceedings held in camera and the court was bound by the concept that the paramount consideration is to do justice.
The judge said that although it was decided that the court, in principle, had discretion to lift the in camera rule, the issue was whether, on the facts of this particular case, it should exercise its discretion to do so, and if so what conditions might be imposed.
The court was told that the father had instructed a firm of solicitors to act for him in order to advise him whether he had a cause of action against the HSE. In these circumstances the father applied to have the in camera rule lifted to allow him to give instructions to his solicitors. His solicitors had also advised that they wished to have sight of the documents which were the subject matter of the application.
The relevant provision of the Child Care Act, 1991 was section 29(1) which states that “Proceedings under Part III, IV, VI shall be heard otherwise than in public.”
The GAL said that, both in exercising its discretion and the directions that may be given if the in camera rule is lifted, the court should regard the welfare of the child as the first and paramount consideration, and if exercising its discretion the least amount of information and/or documentation should be released.
The judge said that the applicant had a right of access to the courts and the right to take such proceedings as he may consider reasonable and appropriate. The judge said that he was satisfied that the right of access to the courts includes the right to seek and receive (legal) advice.
As regards the welfare of the child, the GAL said that if the in camera rule is lifted it would significantly increase the possibility of the child being identified as a child in care, which would not be in the interests of the child. The judge pointed out that the GAL also submitted that the child, in the future, might be appreciative her father’s efforts in respect of proceedings against the HSE, which might have a positive effect on the child. The judge said that no evidence of the likelihood of either effect was adduced.
It was submitted by the HSE that, if the father proceeded with his intended negligence action, the court would have no control over such proceedings, and particular over whether such proceedings would be held in camera and that the judge should not “take the risk”. The judge rejected this submission and stated that any such proceedings would still be bound by the provisions of section 31(10) of the Child Care Act: “no matter likely to lead members of the public to identify a child who is or has been the subject of proceedings under Part III, IV, V shall be published in a written publication available to the public or be broadcast.” The judge also pointed out that it remains open to the court having seisin (control) of such proceedings to give directions regarding its own proceedings; either of its own motion or in the direction of any party.
The judge said that it must balance the respective rights of the father and the child. He said that the father’s right of access to the courts would be severely restricted if he refused the application. He also pointed out that, if he grants the application, the likelihood of the child being identified would be increased. However, the judge felt that this risk could be dealt with by the general law, section 31 of the Child Care Act and by directions.
In relation to the risk to the child that she would be adversely affected by disclosure of personal information the judge said: “I am satisfied that in considering the welfare of the child as the first and paramount consideration, that the magnitude of the risk arising from the granting of the application is so low that to refuse it on that basis would be disproportionate and would not achieve justice.”
The judge ruled that the in camera rule be lifted or modified so that the father could instruct a firm of solicitors in relation to a negligence action against the HSE arising out of the child care proceedings. The judge ruled that the order permitted disclosure of the relevant documentation to counsel and experts in the Republic of Ireland only and only to the people specified in the order.
The court held that all persons who learn of the information or the contents of the documents, the subject of the order, are bound by the in camera rule as to confidentiality of the said information and/or documents which was waived by the court only to the limited extent specified and subject to the conditions imposed.
The father was directed to apply to any court in which he was planning on bringing proceedings to ensure that the title of any proceedings would contain initials only, or would in some other way avoid the identification of the child. The court also directed that any such proceedings be held in camera or subject to such other restrictions as the court may consider appropriate to protect the identity and welfare of the child.
The HSE had asked the court to order the documents to be redacted in order to avoid the identification of the child. The judge refused this application but directed that the names and address of the child’s foster parents be redacted.
The court’s judgment in this case is published on the Courts Service website, www.courts.ie