The High Court has replaced a broader discovery order with a staged disclosure of social work files in a civil case arising from alleged abuse while the plaintiff was in foster care.
Mr Justice Garrett Simons ruled on an appeal by the Health Service Executive (HSE) and Child and Family Agency (CFA) against an order made by the Deputy Master. The plaintiff alleges that members of his foster family assaulted him and caused him emotional suffering. His case against the two statutory bodies includes claims that they failed to assess whether the foster parents were suitable and failed to provide adequate assessment or inspection. The bodies deny breaching their duties and say applicable standards were followed.
The Deputy Master had ordered disclosure across three broad categories, including records about the foster parents’ suitability, the bodies’ responses to information about the behaviour of the first defendant, and communications about proposals to remove the plaintiff from the foster home.
The HSE and CFA later argued that those categories could expose extensive, highly sensitive records concerning other people who had been in the foster family’s care. An affidavit from a CFA social worker said the files included thousands of pages and personal accounts of sexual abuse. The judgment states that the first defendant had been convicted of child sexual abuse offences against those non-parties. Their privacy was central to the court’s assessment.
The judge found that records of the initial and ongoing assessment of the foster parents were prima facie relevant to the pleaded issues. But he said discovery of confidential material should be ordered only where necessary for a fair resolution, balancing its likely materiality against its confidentiality.
The court discharged the Deputy Master’s order and directed the HSE and CFA to disclose the plaintiff’s social work file and the social work file relating to the foster parents. In the first instance, either file may be redacted to remove extraneous references to third parties. The affidavit of discovery must explain in general terms what information has been redacted.
After reviewing those files, the plaintiff may seek further and better discovery if necessary. The parties were directed to agree wording for the categories and clarify whether the third category concerning removal communications remains in issue; if they cannot agree, the motion is to return before the judge. They were asked, if possible, to submit agreed wording within four weeks.
The plaintiff was awarded the legal costs of the discovery application, including costs before the Deputy Master and High Court. The costs are subject to adjudication if not agreed, with execution stayed until the underlying proceedings conclude.