The District Court in a rural town granted notice party status to the uncle of children who were in care following the violent death of their mother. The father is in custody awaiting trial for the mother’s murder. The Child and Family Agency (CFA) opposed the granting of the application on the basis that it could breach the children’s right to privacy.
The uncle had sought to be named as a notice party under Section 47 of the Child Care Act 1991 in any further proceedings concerning the children. His barrister told the court that he wished to be in court in relation to any further issues than might arise, for example, a medical issue, so that he could be of assistance to the court.
The barrister acknowledged that the uncle had access to the children and received information from the CFA. However, he wished to be joined to the proceedings so that he could attend court, especially as the children got older and they were facing aftercare. “If there is a discharge application [from the father] what is [the uncle’s] position then?” the barrister asked. She said the uncle felt it would be in the best interests of the children for him to be joined.
The father’s solicitor said if the uncle was made a notice party, parameters should be set. He said the paternal family was also concerned about their relationship with the children. The issues would be reviewed after the criminal trial.
Judge: “Is it your position that [your client] would be happy for the court to allow the application but within parameters?”
Father’s solicitor: “Yes.”
The guardian ad litem (GAL) was supporting the uncle’s application, on the basis that it was in the welfare interests of the children, based on the facts of this particular case.
“Though these children have lost their mother they have not lost their extended family. They are with [foster carers they knew]. It does not mean their mother’s family should step aside and walk away,” she said.
In relation to concerns about privacy, she said at the moment there was nothing in the social work reports that was not being provided to the applicant. “There has to be a distinction between actual and possible issues. The mother is gone but the family is still here. That has to be a comfort to these children. Having lost so much, it is very important that they know their family is still there.”
She added that Ms Justice Baker had said that if the court wanted to lay down parameters it could.
The barrister for the CFA said the agency had no reservations whatsoever about the uncle and acknowledged the importance of him playing a role in the children’s lives. Despite the differences on this issue people were working well together, there were extended family visits to the children and family holidays with them.
He said there was no dispute between the uncle and the CFA, no application for access, no discharge application, no claim he had not received information. He did not need to be joined as a party in order to bring an application, for example, in relation to access. He was not a guardian to the children.
He said he accepted that at the moment it was not appropriate to canvas the views of children as young as these were. But in the future they might have their own views about their right to privacy and may want certain things kept private. One of the concerns of the agency was that when the children were teenagers there might be emotional and psychological issues they would like to keep private. “We would say the privacy interests of the children outweigh the interests of [the uncle] who is not seeking a wider remedy. There is no constitutional right engaged here.”
Responding to a question from the judge relating to family rights, he pointed out that an uncle did not fall under the constitutional definition of the family, but this did not deny the importance of the relationship. The care plan took account of that. But that was different from saying he should be a notice party. “You need more than that to outweigh the privacy rights of the children, and of the foster parents.
“[Being] a notice party commits us to a legal level of disclosure that may not be in the interests of the children, for example, the children might be involved in a minor indiscretion as teenagers they would not want their extended family to know. There is also the issue of the future therapeutic needs which they will have.”
The solicitor for the GAL said that at the moment an imbalance arose because the father, as guardian, had rights that the mother’s family did not have.
“The key question, as I see it,” the judge said, addressing the CFA barrister, “are your clients saying to you that they will be curtailed in their function if the application is granted?”
CFA barrister: “The discretion they have in relation to the sharing of information would be limited. They have a duty to report to the court.
“The agency is the corporate parent. One of the things that is clear from the social work files is the amount of information that is gathered. Every parent wants to have discretion about the amount of information shared with others. Children in care are at a terrible disadvantage compared with other children in that they are under constant scrutiny and it is all on file. All the CFA wants is to have discretion.
“I very much accept that it would be a comfort to the children and the involvement of the [mother’s] family is very positive. For children what matters is contact rather than participation in the court process. The agency is trying to meet the concerns of [the uncle] and can well understand, if there is an application for discharge from the father, the family would want their voices heard. I would propose that no application for a discharge or access by the father would be heard without [the uncle] being notified and it could not be determined without him being permitted to bring an application to be a notice party.”
The uncle’s barrister pointed out that he was also the children’s godfather.
The judge asked if the mother had made a will referring to guardianship, and the uncle’s barrister said she had not.
The barrister continued that there had been a lot of emphasis on privacy, but the uncle also wanted to be involved in the children’s lives after care, and he wanted them to know he was involved in their lives. In relation to the children not wanting certain information shared, it could be the case that children in care would not want certain information shared with their parents. That could be dealt with through redacted reports.
Judge: “I don’t agree. If someone is a party everything goes to everyone.”
The solicitor for the GAL said that where children do not want certain information shared the court could give a direction. “There is a mechanism to deal with that. If a child says ‘I do not want that shared’ it does not go into the report. For example, [relating to] a gender recognition issue, what has been done is the court gives a direction such information does not go to the parents.”
The CFA barrister said there was such a mechanism, but it was clumsy. It could be used if there was a really big deal. But if there was a minor issue it should not have to go to court.
The judge said she wanted the father’s solicitor to take instruction in order to make submissions, and adjourned the proceedings.
The hearing resumed after a written submission on behalf of the father opposing the application had been received by the judge. The father attended the hearing via video link from prison.
The submission argued that the application was too vague and too extensive, and there had been no evidence placed before the court which demonstrated that such a broad and general order joining the uncle in all proceedings concerning the children was in their best interests. There was no specific issue between the CFA and the applicant, so his application seemed to be just an information-gathering exercise.
The submission also argued that joining the uncle to the proceedings could have an adverse impact on the children, particularly in relation to their relationship with their father, access with him and with their wider paternal family. While acknowledging that the children’s relationship with their father would be sensitive and difficult, and that it was understandable that the uncle would have a negative attitude towards him given that he was charged with killing the applicant’s sister, the father argued that this could also impact negatively on the uncle’s attitude to the other paternal relatives, which could be transmitted to the children.
He argued that, instead of being made a notice party, an individual application to be joined could be made by the uncle in relation to any particular matter that arose before the court, on a case-by-case basis. He also pointed out that the father enjoyed constitutional rights as the surviving parent in the marital family and as the legal guardian of the children, and any possible interference in this relationship the children might experience in the future would interfere with their and the father’s constitutional rights.
The uncle gave oral evidence to the court supporting his application. He said his other siblings were 100 per cent in support of his application.
He said he wanted to know how the children were getting on and be available to court in relation to any medical or other aspect of their welfare, and to share the family’s medical history. He wanted to be a male role model for them, and he had children of his own of similar ages. He also wanted to assist in relation to the children’s property, that is, their mother’s estate. There may also be compensation from the State for their loss, which he wanted to assist with.
He said the GAL and the psychologist in the case had done fantastic work, but they would not be there all the time. “I will be there for the long term.” He was thankful for the information concerning the children shared by the CFA, but he could not comment on the information not shared.
He said there had been an issue in the past in relation to the life story work undertaken by the CFA. They had told the children that their father was sick and in hospital, when he was not sick and was in prison. “That was against professional advice and was a mistake. It could have been avoided if I was involved.”
He said receiving information was passive and it did not allow him to offer assistance to the court. He would have no input in relation to the children’s welfare and the wishes of his sister. For example, one issue was them possibly attending boarding school, he said his sister would have been opposed.
His barrister asked him about his attitude if the children did not want some information shared with him. “Their wishes should be respected,” he replied.
Asked about any interaction with the children in relation to their father’s family, he said the matter had not come up. “I have behaved generously towards his family. I have no ill-will towards them. I physically assisted them in clearing the house.”
Asked about his relationship with the children now, he said he was in touch with them regularly and brought them to sporting events. “They seem to be very happy and very well integrated into the community, which is fantastic.”
Asked about his role as a godparent, he said he had promised in church to help them be Christians, and to know the difference between right and wrong. While not a religious person, he respected that.
Asked if he understood the role of a notice party, he said he did, and understood that the information obtained in that role was not for sharing “like a NDA.”
The judge then announced her decision, stating that she did have jurisdiction under Section 47 to make an order, and under Section 24 referring to the best interests of the children, as the uncle did not have any statutory entitlement. “On the totality of the submissions and [the uncle’s] evidence, my finding is that granting the application in the form in which it is made in relation to all proceedings relating to the children is in their interests.”
She granted the father’s barrister’s application for costs. “It is an exceptional case, there are exceptional circumstances.”
The father is appealing the District Court decision to the Circuit Court.
