ANALYSIS:INITIALLY, IT had been hoped the report into the deaths of children in the care of, or whose cases were known to, the Health Service Executive (HSE), could have been completed within months. It ended up taking a year and nine months from the setting up of the group in July 2010 to the presentation of its report to the Minister for Children in March this year.
There were various reasons for the delay, including the fact the number of children involved was far greater than originally thought. But the authors made it clear a major reason was the lack of co-operation initially from the HSE. “We did expect a greater level of co-operation,” Geoffrey Shannon told the press conference yesterday.
Central to this lack of co-operation was the HSE’s reliance on the in-camera rule, which means childcare cases are not open to the media or the public and the information revealed in them is not disclosed.
The HSE interpreted this to mean the files could not even be made available to the then minister for children, Barry Andrews, and a group established by him in pursuit of his mandate of protecting children.
In fact, it is very doubtful this would have survived a High Court challenge. The High Court ruled later, in a case concerning making reports on the late Daniel McAnaspie available to his family, that the European Court of Human Rights “provides authority for the proposition that a person’s right to life, as enshrined in Article 2 ECHR , embraces a right to have the circumstances investigated in which that right to life has been violated”.
In the event, Mr Andrews did not engage in an unseemly High Court challenge to a body under his own remit on his right to investigate the deaths of children for which he had responsibility.
He opted instead for the much quicker and more economical option of legislating, and the Oireachtas enacted the Health (Amendment) Act 2010, which created an obligation on the HSE to furnish the minister with the required information and permitted him to pass it on to any person he appointed to inquire into the matter.
However, the whole episode illustrated the extent to which the in-camera rule, intended to protect the welfare and anonymity of children in care, was used to thwart attempts to bring transparency and accountability to the child care system.
The report therefore includes an analysis of the operation of the in-camera rule, and recommends its operation be changed.
“The existence of rules which protect the anonymity of minors and their families should not be taken to mean that the operation and actions of the court in relation to such matters should be secret,” it states.
“By allowing a veil of secrecy to cover the work of the court in these types of issues, public confidence in the system is damaged and it prevents the recognition of good work and, in equal measures, the recognition of areas in need of reform.”
The report notes the practice that exists for the reporting of rape cases, where the media may report without identifying the victim, has operated very successfully and recommends consideration should be given to extending it to child care cases.
The report also notes the recent decision of Mr Justice George Birmingham in the McAnaspie case, where he ruled the court could, if it saw fit, release documents relating to a child who had died.
The authors point out that judgments in such cases are made public in most European countries, and in Australia and Canada the media are permitted to report on them while protecting the anonymity of the parties. The child welfare courts have also been largely opened up in the UK.
A complete review of the operation of this rule in Ireland is now necessary, they said.