Serious child protection concerns regularly come to the attention of the Child and Family Agency (CFA). These concerns often arise through a child’s direct disclosure to a trusted and safe adult, like a social worker or Garda. These disclosures are highly sensitive. The welfare of the child must be central and the proceedings should not cause further trauma to them.
The statutory exception to the rule against hearsay is an important tool in limiting further harm. It also ensures that the child’s voice is heard.
Step 1: Admissibility
The Court must consider whether it thinks the child would be “unable to give evidence by reason of age”, or if the “giving of oral evidence by the child…would not be in the interest of the welfare of the child”.
The Court must “have regard to all the circumstances, including any risk that the admission will result in unfairness to any of the parties to the proceedings.”
If the Court determines either of the factors to be true, then the statement can be admitted without the child giving evidence. The Court must consider the competence of the child given their age, and/or their best interests.
An exception to the rule against hearsay is justified by the crucial role of the proceedings in protecting children[1].
Step 2: Weight
Once the statement has been admitted into evidence, the Court must determine the weight to attach to the statement. The court must give regard to “all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise”.
Considering “all the circumstances”, the Court must examine if:
(a) the original statement was made contemporaneously with the occurrence or existence of the matters stated,
(b) the evidence involves multiple hearsay,
(c) any person involved has any motive to conceal or misrepresent matters,
(d) the original statement was an edited account or was made in collaboration with another for a particular purpose, and
(e) the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
The “motive” consideration may be particularly relevant if a parent or family member seeks to admit a statement allegedly made by a child that abuse did not occur. It is broad enough to cover any person who may have prompted the child to make a particular statement.
On the other hand, the likelihood of a mala fides or improper motive is significantly reduced where the person giving the statement is a professional. This may arise where the professional is reporting a disclosure made to them during an investigation or while supporting a child.
In our experience, most section 23 applications in child protection cases relate to statements made by a child to a:
- Social worker
- Social care worker
- Access worker
- Foster carer or
- Member of An Garda Síochána
The risk of adverse circumstances arising and affecting the weight is likely to be low.
Case law
The District Court applied the statutory exception to admit significant hearsay statements in support of a Full Care Order, under Section 18 of the Child Care Act 1991, in the case of VR[2].
The Court, considered the:
Timing of the allegation, the demeanour, the affect of the child, the personality of the child, the intelligence and understanding of the child, the absence of a reason to fabricate, contemporaneous note of the foster mother, the DVD of recorded notes simultaneously to the time of the child's words, the clear and unhesitating manner of the child in relation to the content, the persons to whom said matters were said who I find were objective and independent, that there was no prompting.”[3]
Ms Justice Quirke found it was noteworthy that the hearsay was “committed to written notes made simultaneously.”[4] She also found that it was “extremely unlikely that a child who had not been abused would be able to give an account as detailed as that of the child” and that the “central narrative of the child's account is authentic and her presentation was largely congruous with her allegations”.[5]
In determining that the hearsay evidence of the child’s words and disclosures were “accurate and reliable and can be attributed weight”[6], the court held that the source of the allegations “were the words of the child herself”.[7]
The court attributed weight based on:
“What the child said, the way the child said it, the words used by the child, the affect of the child.”[8]
Conclusion
Decision making in child protection cases revolves around the best interests of the child. It is of paramount importance to ensure the child’s direct voice is heard.
The statutory exception to the rule against hearsay involves a careful balancing exercise requiring the court to engage with the circumstances in which a statement was obtained, the link between the statement and the allegations before the court, the age and capacity of the child, how the giving of direct evidence might negatively impact the child’s welfare interests, and any potential mala fides motive.
When preparing court reports that contain disclosures of children, authors should include as much detail as possible around the context and circumstances of the disclosure. This may include details on:
- The location where the disclosure was made.
- The discussion that occurred prior to the disclosure being made.
- The purpose of the visit from the trusted adult to the child.
- If the disclosure was made as in reply to a direct question or if the child volunteered the information.
- If something triggered the disclosure.
- The child’s body language and tone of voice when the disclosure was being made.
For more information and expert advice, contact a member of our Health & Prosecutions team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Per Justice Denham in Eastern Health Board v MK [1999] 2 IR 99 (reported sub nom In the Matter of MK, SK and WK [1999] 2 ILRM 321).
[2] Child and Family Agency v VR [2016] IEDC 16.
[3] Child and Family Agency v VR [2016] IEDC 16, at para 20.
[4] [2016] IEDC 16, at para 9.
[5] [2016] IEDC 16, at para 18.
[6] [2016] IEDC 16, at para 19.
[7] [2016] IEDC 16, at para 20.
[8] [2016] IEDC 16, at para 20.
