The Supreme Court directed yesterday that the High Court should hold an inquiry into whether three children should be made wards of court. It was alleged one of the children had been sexually abused by his father.
The father was born moderately mentally handicapped while the mother suffers from a degree of mental handicap. The three children were born to the mother and the father who were in a relationship not recognised by law as a civil marriage.
Proceedings were instituted by the Eastern Health Board for an order that the three be taken into wardship. The High Court ruled in January 1996 that they be taken into wardship of the court. The EHB was appointed their guardian, and it was ordered that the children be kept in the board's care until further order.
An appeal by the parents against the High Court decision was brought to the Supreme Court, which decided yesterday that the original order should be set aside. The case was remitted to the High Court.
Much of the case related to whether "hearsay" evidence was admissible in wardship proceedings. Hearsay evidence is evidence of something a witness heard a third party say. The only evidence adduced by the board in support of the allegations was hearsay.
In the Supreme Court the presiding judge, Ms Justice Denham, said the appeal was confined to matters of law, and no decision on the issue of the custody of the children was being made.
She was satisfied hearsay evidence was admissible in wardship proceedings. But the High Court had failed to carry out an appropriate inquiry as to whether it was necessary to adduce hearsay evidence, and she found the process was unsatisfactory. Consequently, the High Court was not correct in law in the manner in which it treated the evidence.
In the light of the conclusion reached on the law in the case, Ms Justice Denham said, she was satisfied the High Court order should be set aside and the matter remitted to the High Court for an inquiry as to whether the children should be wards of court.
The High Court judge had said the boy had serious hearing and speech impediments and his behaviour from time to time had been very disturbed.
The evidence relied on by the EHB to support its claim that the children be taken into wardship came from a speech therapist, who stated what the boy had said to her on two occasions, and from a social worker, who had said what the boy had said and done at an interview. A video of the interview was made and seen by the court.
The High Court held that if the hearsay evidence was excluded, the rest of the evidence would not justify the making of an order for the children to become wards of court.
Ms Justice Denham said she was satisfied that the process whereby hearsay evidence was admitted in the case was not in accordance with fair procedures to the mother, father or the children.
The very difficult problems created when there were allegations of child sexual abuse in the home and the concern for the welfare of the children required fair procedures in court.
The issue had three strands - the use of hearsay evidence, the evidence of the children and allegations of child sexual abuse - which made the matter complex.
Ms Justice Denham said a fair procedure required a court to determine whether a child should give evidence. In the wardship jurisdiction the paramount consideration was the welfare of the child.
In exercising jurisdiction, the court had a discretion as to whether the child would give evidence. In the analysis as to whether the child should give evidence, and the determination whether hearsay evidence should be admissible, the age of the child and the potential trauma of giving evidence in court were relevant.
Assessing the reliability and weight to be afforded to hearsay evidence would depend on the circumstances of each case.