THE McANASPIE family has won the right to ask the District Court for reports relating to the care of their brother, Daniel, who was killed while in the care of the HSE.
Mr Justice George Birmingham also ruled in the High Court yesterday that the media can report on the family’s application to the District Court, though the court can impose restrictions on what may be published, especially if the material relates to a living child in care.
Daniel McAnaspie went missing while in the care of the HSE in February 2010. His body was discovered on May 13th, and a postmortem showed he had died of stab wounds. He was 17.
His sister, Cathriona, asked the District Court to release to her reports relating to his care that were written by his “guardian ad litem”, his court-appointed representative. Fourteen reports had been drawn up by the guardian over a six-year period in support of applications to the court for directions about his care.
Ms McAnaspie said she was seeking the reports because she considered they might reveal that the health authorities failed in their obligation to take measures to avoid harm coming to children like Daniel. She believed the reports might reveal his death could have been avoided, and could assist her in getting an inquiry into the circumstances leading to his death.
When the case came before the District Court in May 2010, The Irish Times sought permission from the court to report on her application. Judge Conal Gibbons asked the High Court for guidance relating both to the family’s application and to whether the media could report on it.
Mr Justice Birmingham said a child who is deceased is no longer a child under the 1991 Child Care Act, and is not subject to a care order. However, he said another person who was not a party to the original proceedings, in this case Cathriona McAnaspie, could bring an application under the Act. The HSE had argued that the District Court, under the in-camera rule, did not have jurisdiction to release to another party documents relating to a child in care.
Mr Justice Birmingham said the weight of previous Irish case law suggested the court had discretion to authorise the disclosure of information relating to in-camera proceedings, and that this was consistent with the jurisprudence of the European Court of Human Rights.
This court, in considering the State’s obligations under the right to life provision of the European Convention on Human Rights, had stressed its obligation to ensure effective investigations into the deaths of those in State care. The District Court therefore did have jurisdiction to consider whether to make the documentation available to Daniel McAnaspie’s next of kin.
The court also had jurisdiction to impose restrictions on the publication of such documentation, particularly if it could lead to the identification of other children in care, he said. The media had the right to report on these proceedings as they concerned matters of public interest, he said.