The Court of Appeal has dismissed an appeal by the Garda Commissioner against a High Court decision not to answer a consultative case stated about access to documents from a Garda investigation in child-care proceedings. It agreed that the questions had become moot and that the High Court was entitled to decline to hear them.
The dispute arose in proceedings concerning two children who had been in the care of the Child and Family Agency (CFA) since 2016 under interim care orders. The parents sought access to documents in a criminal investigation file, arguing that they were needed to contest the care proceedings. The Commissioner claimed public interest privilege, saying disclosure while the investigation was active could prejudice it and any later prosecution.
In July 2020, the District Court ordered discovery of three categories of documents: witness interview statements, specialist interviews with the children under section 16(1)(b) of the Criminal Evidence Act 1992, and referrals to Gardaí by the CFA and guardian ad litem. The Commissioner complied while maintaining the privilege claim. The parents then sought production and inspection. After inspecting unredacted documents, the District Court judge considered them relevant and said third parties could be protected through redactions.
The District Court referred five legal questions to the High Court, including whether the Commissioner’s privilege claim had to be upheld until a prosecution decision or service of a book of evidence, and whether the court could order production before then. By the time the case was heard in the High Court, the Director of Public Prosecutions had decided to prosecute, the parents had been charged, a book of evidence had been served and the parents had received the documents. The other parties agreed the dispute was moot; the Commissioner did not take a clear position on whether the child-care proceedings could proceed without an answer.
The High Court declined to hear the case stated. On appeal, the Court of Appeal said the practical dispute over the parents’ entitlement to the documents had ended. The documents had been provided, so an answer would have no practical effect on that dispute. It rejected the Commissioner’s argument that consultative cases stated should be treated differently for mootness purposes.
The appeal court also found no error in the High Court’s decision not to make an exception to the general rule against deciding moot cases. It said existing authorities described courts’ role in weighing competing public interests when privilege is claimed, and the High Court judge could take account of a pending appeal in a related case that might provide guidance.
The ruling dismissed the appeal from the refusal to answer the case stated. It did not answer the five referred questions or determine whether the documents should have been produced while the investigation was active. The parties were invited to discuss costs; if they could not agree, the court would reconvene for a short costs hearing.