The God Squad

The Irish Times – Monday, November 15, 2010

McK –v- L Neutral citation IESC 51.

Supreme Court

Judgment was delivered by Mr Justice Joseph Finnegan on October 28th, 2010, Mr Justice Donal O’Donnell and Mr Justice Liam McKechnie concurring.

Judgment

It was not contrary to the Act setting up the Residential Institutions Redress Board to disclose the fact of an award under it to a family law hearing in the Circuit Court, and the award should be taken into account in awarding maintenance.

Background

The case came to the Circuit Court in January 2007 on appeal from a District Court maintenance order. The Circuit Court sought answers from the Supreme Court to the questions: whether the applicant is entitled to details of the award made by the Residential Institutions Redress Board (RIRB); whether the court is entitled to take into account the award when deciding the issue of maintenance.

The facts were that the applicant and the respondent were not married to each other, and had two dependent children, aged nine and seven, when the case was heard in January 2007.

The applicant father had custody of the children, who lived with him, and he was seeking maintenance from the respondent mother, who was not paying it. In the District Court proceedings, it emerged that she was in receipt of €200 a month from the High Court Wards of Court office, following a settlement of a claim from the RIRB. The District Court sought details of the settlement, and the solicitor for the respondent said they were unable to divulge any information regarding the claim as there was a confidentiality requirement on each applicant under section 28 of the Residential Institutions Act 2002. The Circuit Court then sought the views of the court.

The applicant pointed out that under the Family Law (Maintenance of Spouses and Children) Act 1976, there was an obligation on the respondent to maintain her children from the resources available to her. In determining the amount, the court could have regard to the income, earning capacity, property and other resources of each parent.

The respondent said that the provisions of the RIRB Act 2002 are unambiguous and reflect the intention of the Oireachtas to encourage those who suffered to come forward, with an obligation of confidentiality.

Decision

Sections 5A and 5B were introduced into the Act by the Commission to Inquire into Child Abuse (Amendment) Act 2005, and stated that section 28 shall not operate to prohibit the production of documents to a person or body when it or he or she is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation of any matter.

The Circuit Family Court is, when hearing an application for a maintenance order, a body or person performing a function under an enactment consisting of the conducting of a hearing, and so these sections apply and section 28 (1) of the Act has no application, Mr Justice Finnegan said. Information and documents may be disclosed to the Circuit Family Court.

Section 28 (6) prohibits a person publishing information concerning an award that refers to any other person by name or could lead to their identification. For the applicant to give information on the amount of any award would not be to publish information concerning “any other person”. Thus the disclosure of the amount of the award is permitted so long as no one else can be identified.

Having regard to the Family Law Act 1976, there is an obligation to disclose the amount of the award and the source of the award may be disclosed. The proceedings will be in camera and there will be no further disclosure of the fact of the application or the award. The clear policy of the 2002 Act in preserving confidential information will not be impaired, he said

Thus the answer to whether the applicant is entitled to details of the award by the RIRB, given the provisions of section 28 of the Act is yes; and the answer to whether the court is entitled to take the award into account when deciding the issue of maintenance is also yes.

The full judgement can be found here Full court judgement.

Diarmaid O’Donovan SC and David Gilvarry BL, instructed by Athlone Law Centre, for the applicant; Michael Molloy BL, instructed by Longford Law Centre, for the respondent.