ANALYSIS:IN MARCH 2010, then minister for children Barry Andrews set up a review group on child deaths in HSE care.Coincidentally, Daniel McAnaspie had gone missing from HSE care 10 days earlier. His stabbed body was later found in a drain in Co Meath.
Two months later the HSE told the review group it was prevented from releasing the files on child deaths in care because of the in camera rule relating to childcare proceedings. Emergency legislation had to be rushed through the Oireachtas to permit the review group do its work.
This illustrates the rigidity with which the in camera rule was interpreted by the HSE. While designed to protect the privacy of children in difficult family circumstances, it appeared to operate to prevent any public scrutiny of the care system.
In yesterday’s judgment, Mr Justice Birmingham made it clear there were cases where the interests of justice require that material relating to children in care should be released and published, subject to restrictions protecting the privacy of the children involved.
The court was asked to deal with the case of a child who died in care, and whose right to life, and the right of his next of kin to find out what had happened, were involved. He ruled they had the right to seek relevant documentation and that their application could be reported on.
In doing so he examined the in camera rule relating to childcare cases in the context of the law in England and Wales, which is persuasive but not binding on Irish courts, and the law arising from the European Convention on Human Rights, which is binding on Irish public institutions.
Already in the UK the judiciary and the media have drawn up joint guidelines for reporting on cases involving children who are the subject of court proceedings. The European Court of Human Rights has also given a number of judgments stressing the importance of balancing the right of a child to privacy with the administration of justice in public.
Mr Justice Birmingham concluded that an absolute application of the in camera rule, preventing the release of any information under any circumstances, “could fall foul of the European Convention on Human Rights”. For the section to be compatible with the convention it would require the provision be subject to court control, he said.
This was particularly so when the case concerned an individual being opposed to the State, he said, as happens when a child is taken into care. In such a case, the European Court of Human Rights had ruled, “the reasons for excluding a case from public scrutiny must be subject to careful examination”.
Mr Justice Birmingham stressed the importance of protecting the private life of a child from media intrusion and perhaps sensationalist reporting.
However, he added: “The question which really arises is whether there might be exceptional circumstances where a court might wish to depart from the normal procedures and whether, if such situations arose, the court would have jurisdiction to vary the normal procedures.” It would, he said.
This means there can now arise an exceptional case involving a child in care proceedings where the court can permit reporting in the public interest.