THE HIGH COURT
E D AND A D
EASTERN HEALTH BOARD AND DISTRICT JUSTICE AIDAN O'DONNELL
Judgment delivered by Mr. Justice Barr on the 17th day of July, 1989.
There is no significant dispute regarding the facts which have given rise to this application. They are as follows:-
The applicants (hereinafter called respectively the mother and the father) reside at Dublin and are the parents of four children; a son now aged 9 years; a daughter of 8 years; a daughter, A, now almost 7 years old and a daughter of 5 years. All lived together as a family unit until August,1937 when A was taken into care and there is no evidence that complaint has been made as to ill-Treatment or abuse of any of the other children by the father or the mother. They continue to reside with their parents in the family home.
It has been deposed to by the mother, and not contradicted by the Eastern Health Board (the Board) that on 16th May,1987 while playing in a vacant flat adjacent to the family home, A sustained an injury to her vaginal area in consequence of which she attended the Children's Hospital, Temple Street for treatment. She was brought there by one or other of her parents from time to time as required. On 31st August, 1987 A was brought by her father to the hospital as part of her on-going treatment. On that occasion she was seen by a Dr. Hay, a female medical practitioner. There is no information regarding the status of Dr. Hay in the hospital or whether she had treated the child on any of her earlier visits. It appears that Dr. Hay took the view that A had been sexually assaulted. The child was detained at Temple Street and referred to the Sexual Assault Unit at the Rotunda Hospital where she was examined and interviewed by Dr. Maura Woods, a specialist in that sphere. Dr. Woods agreed with Dr. Hay's diagnosis and also formed the opinion derived from her questioning of the child that the culprit probably was the father. Patrick Osborne, a social worker employed by the Board, then interviewed each parent separately and later together. The mother did not accept that the father could have been responsible for abusing the child and he denied having done so. At the joint interview the parents asked for a second medical opinion. In response to that Dr. Carol Fitzpatrick, a psychiatrist attached to Temple Street Hospital, examined A. She confirmed the diagnosis of Dr. Woods and Dr. Hay but reported that the child had indicated that she had been abused by two neighbourhood boys, a male adult and her father. A video film was made of Dr. Fitzpatrick's interviews with the child and this was seen by the applicants. They were also told that the video film of Dr. Wood's interview was not available as it had been damaged.
In the light of the medical evidence, Mr. Osborne on behalf of the Board swore an Information dated 25th September 1987 before the learned respondent at the Children's Court, Smithfield outlining the facts of the case broadly as indicated herein and deposing that he had reasonable cause to suspect that A had been assaulted and ill-treated at her home inů.. and elsewhere in a manner likely to cause unnecessary suffering or to be injurious to her health. The child was detained at Temple Street Hospital pursuant to a Place of Safety order made by the learned respondent in response to an ex-parte application on behalf of the Board pursuant to Part II of the Children's Act, 1908 based upon the Information sworn by Mr. Osborne. A summons was duly served on the respondents relating to a proposed application by Mr. Osborne on behalf of the Board to the Children's Court for a Fit Person order under section 24 of the 1908 Act to have A committed to the care of a suitable fit person until she should attain the age of 16 years or until further order of the court.
On receipt of the summons, which was returnable for 28th October, 1987,the applicants consulted Mr. John P. Carroll of Messrs. Carroll and Walley, solicitors. (Although it is not on affidavit, I have been informed by counsel that in fact Mr. Carroll had been consulted by the applicants at an earlier date relating to the injury sustained by A in the incident at the vacant flat on the previous 16th May. It seems that the applicants thought that it might be possible to pursue successfully a claim in negligence against Dublin Corporation, the owners of the premises in question. In the event, no claim has been made on the Corporation in that regard).
On 14th October, 1987 the late Mr. Denis Greene, the Board's solicitor, was contacted by Mr. Carroll who sought information concerning the case. He was informed by Mr. Greene of the background to the summons. In particular he was told that A had been examined by Dr. Woods and that a second opinion had been obtained from Dr. Fitzpatrick.
Mr. Carroll did not ask to see the reports of either doctor or video tapes of the interviews with the child. It appears that Mr. Carroll did not contact Mr. Greene or his firm again prior to the hearing and the question of its adjournment was never discussed.
The matter duly came on for hearing by the learned respondent at the Children's Court on 28th October, 1987. The applicants were represented by Mr. Giblin of counsel, instructed by Mr. Carroll. The Board was represented by Ms. Isolde M. Doyle, solicitor. At the call-over of cases listed for hearing that afternoon Mr. Giblin applied for an adjournment of the summons on the ground that in the interest of the applicants' defence he wished to see the video film of Dr. Fitzpatrick's interviews with A It appears that Mr. Giblin had learned that there was no film of Dr. Woods's interview due to the malfunction of her video camera, but he did not ask to see her notes or those of Dr. Fitzpatrick. Ms. Doyle opposed the application on the ground that it had been sought for the first time that afternoon and she had all her witnesses in court including the three doctors in question. She proposed by way of compromise that the evidence of Dr. Fitzpatrick only should be postponed and that the Board had no objection to the video film being seen by the applicants' counsel and solicitor provided that it should be viewed also by the learned respondent. This proposal found favour with the latter but was not acceptable to Mr. Giblin.
When the summons was reached a short time later, Mr. Giblin renewed his application for an adjournment on the same ground and it was refused by the learned respond it appears that the compromise proposed as to Dr. Fitzpatrick's evidence was not pursued at that time. Dr. Hay, Dr. Woods, Dr. Fitzpatrick and Mr. Osborne gave evidence on behalf of the Board and each was cross-examined by Mr. Giblin. The applicants also gave evidence and were cross-examined by Ms.Doyle. The learned respondent accepted the evidence of the Board and made the Fit Person Order which it sought. Within the appropriate time a Notice of Appeal was duly served on the Board's solicitor's by Mr Carroll's firm, but they inadvertently omitted to file a copy in the office of the Circuit Court. This omission was first discovered by Mr. Liston the applicants' present solicitor, on 13th July,1988. Mr. Liston was consulted originally by the applicants on 24th November, 1987 and the subsequent history of what took place is set out in his affidavit.
On 6th March, 1989 application was made to me in these proceedings ex-parte and on that date I made an order
a) extending the time for making application for Judicial Review and
(b) granting the applicants liberty to apply for an Order of Certiorari quashing the Fit Person order made by the learned respondent relating to the infant, A, on the grounds specified in my order.
The matter came on for hearing on notice on Friday last, 14th July, 1989.
This application is substantially out of time but the Rules of the Superior Courts give the court a discretion to extend time for applying for Judicial Review where it is deemed proper in the interest of justice that that concession should be made. The facts outlined by Mr. Liston is his affidavit make it clear that the chapter of vicissitudes which has led to delay in applying for Judicial Review is in no way the fault of the applicants and I am satisfied that time for bringing these proceedings should be extended.
The application for an order quashing the Fit person order made on 28th October, 1987 is based upon the contention that the learned judge acted in breach of natural justice in refusing Mr. Giblin's application for an adjournment of the summons to allow time for a preview of Dr. Fitzpatrick's video film relating to interviews which he had had with the child, A - It was submitted that in refusing the application and in proceeding with the hearing to final determination, the applicants were denied their constitutional right to a fair hearing of a fundamental issue regarding the welfare of their child and their right to provide a home and upbringing for her.
It is not in dispute that within the bounds of the law and having proper regard to maintaining fair procedures, a judge has discretion to regulate the business of his court as he sees fit, and, of course, this includes a right to grant or refuse applications for adjournments.
The root question raised in these proceedings is whether in all the circumstances the learned respondent in refusing Mr. Giblin's application and in proceeding with the hearing of the summons was so grievously in error that the proceedings were thereby vitiated to such a degree that his Fit Person order was a nullity and must be set aside.
Proceedings under the Children's Act in which a health board or other authority or individual seeks a Fit Person order in consequence of alleged sexual molestation of a child by its parent in the family home are of fundamental importance to those involved and may have far-reaching consequences not only for the child, but also for the parent against whom complaint is made. For the latter the making of such an order not only deprives him or her of the child and of their right to provide a home for and supervise the upbringing of the child, but it also may cause grievous harm to the relationship between the parents inter se and subject them to a stigma attaching to such orders which may well be impossible to erase so long as the family continue to reside in the same locality. It follows, therefore, that such applications must be heard and decided with particular care.
There is no information as to when Mr. Giblin was first briefed to appear for the applicants and when he first learned of Dr. Fitzpatrick's video film. However, it has been common practice for some years that medical practitioners who interview young children in cases of alleged sexual abuse have Video films made of the interviews and this fact ought to have been known to Mr Carroll when he consulted Mr. Greene two weeks before the proposed hearing of the summons.
Alternatively, if Mr. Carroll was not familiar with the medical procedures in this type of case, he ought to have requested counsel to direct proofs for the hearing as soon as possible after he, the solicitor, had been instructed by the applicants. There would have been no difficulty in arranging an adjournment prior to the date of hearing for the purpose of viewing the film. In fact no application was made until the call-over in the afternoon of 28th October last when all of the Board's witnesses, including the three doctors, were present in court.
In dealing with the application the learned respondent had to make up is mind whether justice required that the hearing should be adjourned in all the circumstances, notwithstanding the obvious expense and inconvenience to the Board and its professional witnesses.
How important was Dr. Fitzpatrick's video film likely to have been to the applicants' case? If Mr. Giblin had had an opportunity of seeing the film before the commencement of the hearing in the Children's Court, he would have known the basic information on which the psychiatrists' opinion was based. In that regard he would have learned
i. that A had alleged that four people, including her father, had sexually abused her and
ii. he would have seen at first hand how Dr. Fitzpatrick conducted the interviews. The first of these points would have been relevant to counsel's cross-examination of Dr. Woods. (Dr Hay does not might have been).
However, the information that A had intimated to Dr. Fitzpatrick that she had been abused by four different people was available to Mr Giplin in Mr Osborne's sworn information which grounded the original ex-parte application for a place of Safety order.
As to the second point; this is unlikely to have had any relevance to the cross-examination of other witnesses. Furthermore, the video film had been seen by the applicants before the commencement of the proceedings under the Children's Acts. It is referred to by the mother in her first affidavit at paragraph 4. she deposed, inter alia, that she and the father
"were appalled by the manner in which the said interviews were carried out as evidenced by the said video recording and were appalled by the number of basic inconsistencies which emerged from the said video recording".
In the light of this , it was open to counsel to obtain detailed instruction from his clients as to what transpired at the interviews in question and thus put himself and thus put himself in a position to cross-examine Dr. Fitzpatrick regarding her performance in the matter. If there was serious criticism of the psychiatrics conduct of the interviews and/or other related matters, an investigation of these shortcomings in course of the hearing could, if necessary, have formed the basis for an application at the end of Dr. Fitzpatrick's evidence that the learned respondent should not evaluate such evidence without seeing the video film and ascertaining for himself whether there was any substance in the criticisms alleged by the applicants. No such application appears to have been made. Furthermore, the necessity for having to. make an application of that sort could have been avoided if counsel had agreed to the compromise proposed by Ms. Doyle originally, i.e. that Dr. Fitzpatrick's evidence should be postponed to a later date pending the viewing of the video film. In the unlikely event that information not already known to or available to Mr. Giblin emerged on viewing the film which might have been relevant to the cross-examination of the other two doctors, or either of them, it would have been open to counsel to apply to have them recalled.
Although I appreciate that other. judges in similar circumstances might have acceded to Mr. Giblin's application, I am not satisfied that the learned respondent's decision not to adjourn the hearing of the summons hampered the applicants in resisting the Board's claim to such a degree that the proceedings were vitiated and the validity of the learned respondents Fit Person order was thereby negatived.
Finally, there is one other reason which compels me not to accede to this application. Certiorari is a discretionary remedy and in deciding whether I should grant the relief sought, I must consider all the relevant facts; the effect of such an order, if made, and also the interest of the child as well as that of her parents. The primary consequence of making an order quashing the learned respondent's Fit Person order would be that the Board and its nominees would cease to have any right to the custody of the child. She would have to be returned to the applicants immediately and without any further judicial investigation as to the validity of the medical evidence regarding the alleged sexual abuse of the child and the indications perceived and accepted by Dr. Woods that the abuser was the father. In that regard it has been submitted on behalf of the applicants that if the Board considered that it was right to do so, it could initiate new proceedings against the applicants under the Children's Acts and apply for another Fit Person order. In theory that is correct. In practice it would be very difficult, if not impossible, to do so successfully. The medical evidence previously relied upon is now about two years old and, even if he had wished to do so, the father has had practically no opportunity to abuse the child since she was taken into care in August, 1987. Conversely, this is not the end for the applicants. There are other proceedings open to them both in this Court and the Circuit Court which may lead to the overturn of the Fit Person order and the restoration of the child to her family. I note that counsel on behalf of the Board has undertaken that, although the time for appealing the order of the learned respondent has long since expired, the Board would not oppose an application to the Circuit Court for an extension of time for so doing.
For these various reasons I am obliged to refuse this application.