The District Court has refused C’s application to postpone care order proceedings for two children until the conclusion of C’s criminal trial, finding that delay would not serve the children’s welfare.
The Child and Family Agency is seeking care orders under section 18 of the Child Care Act 1991 for Child A and Child B, who have been in the Agency’s care for more than a year under interim care orders. The applications concern serious allegations made by Child A against C. C has been charged with a number of sexual offences arising from those allegations and denies them. The criminal charges and the care proceedings are separate matters; the court did not determine the allegations or the applications for care orders in this judgment.
C argued that going ahead with the care proceedings before the criminal trial would force C to choose between giving evidence to protect family rights and avoiding possible self-incrimination. C also raised concern that information from the care proceedings might be conveyed to Gardaí. C proposed that the children remain in the Agency’s care under an interim order until the criminal trial concluded.
The court had already granted a separate adjournment to allow C time to obtain expert advice on recordings of Child A’s interviews, after delays in receiving them. In this decision, it addressed the remaining request to wait for the criminal trial, which was listed for more than a year after the adjournment application began.
Judge Brendan Toale said C could refuse to answer questions in the care proceedings if answering might be self-incriminating. The judge said any complaint about evidence proposed for use at the criminal trial would be a matter for the trial judge. He also noted that no legislation providing the type of protection discussed in submissions existed in Ireland.
The judge considered the children’s constitutional rights and their welfare, which he said was paramount. The Guardian ad Litem had submitted that the children needed a timely decision and findings on the balance of probabilities to inform care planning. The judge accepted that care orders can later be varied or discharged and that placements cannot be guaranteed. But he said a determination would help professionals plan according to whether the statutory threshold for a care order was met.
The court also rejected the contention that an interim order would meet the children’s needs in the same way as a section 18 order. If the statutory threshold is met and a care order is made, the Agency has the additional responsibilities and authority set out in section 18, including deciding the type of care and consenting to necessary medical or psychiatric assessments and treatment.
Judge Toale concluded that delaying the determination until after the criminal trial would disproportionately affect the children’s rights, and that the need to safeguard their welfare outweighed C’s right not to have to say anything that might afford self-incriminating evidence. He refused the adjournment request. The section 18 applications remain for determination.