Competing rights in McAnaspie hearing cases outlined by judge

DANIEL McAnaspie was no stranger to the courts in Dolphin House in Temple Bar — something which lent added poignancy to the words spoken by Judge Conal Gibbons yesterday.

With the veil lifted — possibly temporarily — on court business conducted in this crowded building, the judge spoke on the applications before him, but also on the human tragedy which has robbed a family of a brother, son and nephew.

Daniel, 17, had been in the care of the HSE at the time of his death, and indeed had been in care since he was 10.

The judge has two matters before him: an application from the McAnaspie family seeking access to Guardian Ad Litem records relating to Daniel’s care in the HSE and applications from media organisations seeking the right to report on that hearing.

Due to a separate judgement made this year by another judge after an application by the Irish Times, limited media coverage of the case has been allowed, despite the fact that Daniel was in the care of the HSE at the time of his death.

Judge Gibbons began yesterday by expressing his condolences to the McAnaspies, some of whom were in court.

“It is shocking and very disconcerting for us to consider that Daniel is no longer with us,” Judge Gibbons said.

“Daniel’s status as a young person in care means that even more questions arise and are asked. Much has been written and reported about Daniel, and that there is media interest in the circumstances of his life and death is understandable.”

He said: “There has been much discussion among lawyers, in academia, by litigants and the media about the privacy rule that surrounds applications in family law and child care matters. This shroud of privacy that surrounds these hearings is known as the in-camera rule.”

The preliminary application by media groups, including the Irish Examiner, involves various statutes, namely the Childcare Act 1991, and articles 34, 40.3, 41 and 42 of the Constitution.

“Issues relating to the right known as freedom of expression, and the equally important right to privacy which families and young people are entitled to in proceedings of this nature arise. These are matters of fundamental value in terms of citizens rights and legal principle.”

He set out the issue in international and national context regarding these “often competing rights”.

He said “it is acknowledged that in researching case-law in the area of family and child law in Ireland it is a particularly difficult task given the limited availability of court judgements due to the operation of the in-camera rule”. Later, he said: “The fact that there has been much discussion relating to the late Daniel McAnaspie in the public arena, including in the Oireachtas, is suggested as being one reason why the court ought to relax the in-camera rule,” he said.

But there was also “implications constitutionally and in a much wider context” in doing that, he said.

Judge Gibbons said it was not clear how the court should interpret the legislation in the context of the preliminary application, and he said he required the assistance of the High Court. Key questions remained to be answered, including whether the child care order granted in respect of Daniel McAnaspie terminated on his death or should it be formally discharged.

The matter returns before the court a week on Wednesday, and a landmark ruling may be granted. Judge Gibbons said he wanted the matter to be dealt with “as soon as possible” so as to facilitate the McAnaspie family’s application.

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