The District Court has ruled that hearsay evidence about allegations made by a respondent father’s sister cannot be admitted on the evidence presented so far in child care proceedings concerning Child 1. It left the preliminary issue open for further consideration if the HSE secures the sister’s attendance or provides further evidence showing hearsay is necessary.
The ruling, dated 18 October 2011, concerns proceedings brought by the Health Service Executive under section 24 of the Child Care Act 1991. The sister, identified as X, is not a party or the child who is the subject of the case. She is now an adult and made allegations about her brother when both were minors. The father has consistently denied the allegations.
The court considered whether a social worker could give evidence about X’s allegations when she would not be present to give direct evidence. The HSE said it had tried to contact her, including several unanswered calls, a letter and a visit to an address that was vacant and for sale. It had not issued her with a subpoena. The HSE also said X had reported depression at a February 2011 meeting, but it had no medical evidence about her mental state.
The judge rejected the HSE’s submission that reports made to it in carrying out its statutory duties should not require the person making them to attend court. The court said a separate inquiry was required into whether hearsay evidence was necessary, whether X’s evidence was treated as that of a child or an adult.
On the material before the court, the HSE had not established necessity. The judge said the contact attempts and visit did not establish that X was unavailable, noting that she had indicated she might be willing to give evidence and that the HSE could seek a subpoena. The court also found no evidence that depression or another condition prevented her from attending.
The ruling does not determine the truth of the allegations or the father’s suitability to care for the child. Nor does it conclude the preliminary issue permanently. The court said the HSE could seek to secure X’s attendance or submit further evidence to establish that hearsay was necessary. The issue might also need to be reconsidered if X refused to give evidence.