The High Court has ordered An Garda Síochána to disclose recordings it holds to both parties in two related family law proceedings, finding the material relevant and necessary to a fair disposal of the first case and giving priority to the children’s best interests.
In a supplementary judgment delivered on 23 February 2021, Mr Justice Max Barrett said he had listened to or viewed all recordings on a USB stick supplied to the court by gardaí. The originals remained in Garda possession. The recordings concerned interactions between Mr A and Ms B, interactions involving one or more of their children, and matters relevant to guardianship, upbringing and parental access.
The judge weighed the public interest in the proper administration of justice in proceedings concerning children’s safety and welfare against the public interest in protecting Garda investigative privilege relating to an alleged criminal offence. He said the statutory requirement to treat the children’s best interests as paramount, together with the recordings’ relevance and necessity, led him to conclude that the recordings should be disclosed to Mr A and Ms B.
The order does not immediately permit the recordings to be used in other proceedings. Mr A’s lawyer had indicated that he might seek to rely on them in the second family case and in a pending Circuit Court appeal against a District Court barring order. The judge treated this as an application to vary the usual restriction on using discovered material outside the case in which it was disclosed, but said the issue had not been formally argued. He invited submissions before making a final ruling. He said any corresponding application for Ms B could also be addressed.
In the second proceeding, the court also allowed for the recordings to be furnished by Ms B’s legal advisers to the appointed section 32/47 assessor, one week after disclosure to Ms B or at another time agreed in writing. Either party may raise an objection during that period. If an objection is raised, or an intention to object is flagged, the recordings cannot be given to the assessor unless the court makes a further ruling.
The judge proposed an order preventing the parties, their advisers or the assessor from playing any disclosed recording to the children, unless the court later orders otherwise. The parties could make submissions on that proposal.
The court said disclosure would not happen immediately. Garda counsel was given up to a week to address practical arrangements and related matters, after which the court would proceed in light of the response. The judgment did not decide the underlying family law issues or the pending appeal.