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1. This application comes before me by way of Motion for non-party discovery pursuant to Order 31, Rule 29 of the Rules of the Superior Court, brought by the second and third named Defendants in these proceedings against two non-parties, namely Sr. Frances Ignatius as the nominated representative of the unincorporated body of persons known as St. Patrick's Guild Adoption Society ("the Adoption Society") and An Board Uchtala ("the Adoption Board"). In order to place the application in context it is necessary to say something about the nature of the case in which the discovery is sought. This case is identical to a case brought by the brother of the Plaintiff in these proceedings, one Anthony Cronin, against the same first and second Defendants, but in that case there is no third named Defendant. The Plaintiffs in both proceedings are brothers and were placed in the long term care (by means of fostering) of the first named Defendant and his wife in or about the late 1970s. Each of the Plaintiffs claims damages for sexual assault by the first named Defendant, in circumstances particularised in the Statement of Claim. It is common case that the claim is of a most serious nature as against the first named Defendant. In both sets of proceedings the second Defendant is the Southern Health Board, and in the first set of proceedings the third named Defendant is the Eastern Health Board. The explanation for the different Defendants is that the first Defendant, with whom the then children were placed, was a Health Board worker in the employment, initially, of the Southern Health Board and subsequently of the Eastern Health Board. It is claimed against both Health Boards that they were negligent in a number of respects, including failing to ensure that the first Defendant was a suitable or competent person to become a foster parent, and failing to supervise the first Defendant while fostered to the second and/or third Defendant, failing in the Defendant's statutory duty towards the Plaintiffs, and several other acts or omissions which constitute alleged breaches of statutory duty or negligence. Particulars of the alleged breaches of statutory duty and/or negligence on the part of the second and/or third Defendants are more particularised in the Statements of Claim and in subsequent Replies to Particulars.

2. The Defendant Health Boards deny the claims and insofar as concerns the allegation of negligence or breach of statutory duty, each Health Board Defendants denies these allegations in the form of a traverse.

3. In the course of correspondence between these Defendants and the Adoption Board became clear that both the Adoption Board and the Adoption Society, had carried out an assessment (or perhaps assessments) of the first named Defendant and his wife in or about the years 1982 and 1985, after which a further child or children were placed in the care of the first Defendant and his wife as adoptees and Adoption Orders were made in those years in favour of the first named Defendant and his wife in respect of those children.

4. Both the Adoption Board and the Adoption Society have refused to furnish any documents to the Health Board Defendants in relation to the assessments made by each or either of them concerning the adoption of other children (unrelated to either Plaintiff) by the first named Defendant and his wife. As a side issue, but related to this aspect of the matter, the Adoption Society, because of the manner in which it operates, has no such documents at present in its possession. I am told it delivers over to the Adoption Board all documents concerning any such assessments or evidencing any such assessments and these documents, it was explained to me, then become part and parcel of the Adoption Board's files on the matter. The method of procedure or practice adopted by the Adoption Society and the Adoption Board is of relevance in the context of arguments made against discovery by both the Notice Parties and will be dealt with below.

5. Against this background the Health Board Defendants have sought the following, namely discovery of:

6. Counsel on behalf of the second and third named Defendants was prepared to accept that, under Order 31, Rule 29, she could not succeed in relation to the breath of the relief sought at (a) above but would be content to have discovery of the documents sought at (b) above having regard to the principles on the issue found in AIB -v- Ernst and Whinney (1993) 1 IR 375, and I deal with this matter on the basis that there is no really serious application being made for the wider discovery sought at (a) above.

7. The Health Board Defendants claim that they acted at all times in a reasonable and proper manner in relation to the placing of the two Plaintiffs (then children) with the first named Defendant and his family. They argue that the procedures they adopted were appropriate and proper. They say, that in order to support this defence, it is essential for them to establish that such procedures as were adopted by them, in particular in the assessment of the first named Defendant and his family, were reasonable and appropriate. And they seek to support the reasonableness and appropriateness of the steps taken by them by arguing that other parties carrying out similar assessments of the first named Defendant and his family, did not reach a different view or conclusion as to the suitability of the first named Defendant than the view or conclusion reached by the second and third Defendants. They do not go so far as to say that the procedures actually adopted by the Notice Parties were the same as those adopted by the Health Board Defendants, because that information is unknown to them. But, they argue that, the assessments carried out by the Notice Parties in 1982 and/or 1985, which are admitted to have occurred, would support or might support their case as to the reasonable steps which they took, or the conclusions which they reached.

8. It is said, on behalf of the Adoption Society and on behalf of the Adoption Board that these assessments are not and could not be relevant to the present proceedings because they were carried out in an entirely different context and, at a significantly different and later time (some years subsequent to the dates on which the Plaintiffs were fostered), and for an entirely different function. They also say that the discovery of these assessments (or any documents relating to them) could not be made, having regard to the provisions to Section 8 of the Adoption Act, 1976. And they finally argue that having regard to the discretion which is vested in the Court under Order 31, Rule 29, the Court ought to exercise its discretion against any discovery being made.

9. I am not satisfied that the existence or content of assessment reports (or accompanying documentation) which came into existence in respect of any assessment of the first named Defendant and his family, carried out in 1982 and/or in 1985 by either the Adoption Society and/or the Adoption Board, in the context of the possible adoption of two totally unrelated children, are or could be relevant to the issue whether the Health Board Defendants in these proceedings carried out all appropriate or competent assessments of the first named Defendant and his family in the context of long term fostering of the Plaintiff in these proceedings in the 1970s or that the existence or content of these assessments are relevant to the statutory obligations placed on the Health Boards concerning the two Plaintiffs.

10. The procedures adopted by other persons in relation to assessments carried out at an appropriate time, might be relevant to the Defendants' claim that they adopted appropriate procedures also. I do not consider 1982 and 1985 to be an appropriate time in the context of the present case. The manner in which these Defendants carried out their assessments and the procedures adopted by them will be the subject of examination and cross-examination. As to whether this was done in a manner which was competent or correct or in accordance with any statutory obligations or was otherwise appropriate, is something which can be proved by the Health Boards and by independent evidence adduced on their behalf. The fact that assessments were also carried out, but much later in time by others, and in different circumstances and for a different function, does not appear to me to support or detract from the manner in which the Health Boards themselves operated at the relevant period in the late 1970s. The actual content of those assessments or the conclusions reached by the third parties could not be relevant to the claims made against these Defendants or the Defences raised by them. I have reached the view that the documents in question are not relevant.

11. But if I am mistaken in my view that the material available from the Adoption Board or the Adoption Society is or might be of assistance to the Health Board Defendants or might be relevant to the case made by the Plaintiffs, I would nevertheless reject the application by virtue of the provisions of Section 8 of the Act of 1976. This Section reads as follows:

12. It is urged on me by Miss McGoldrick on behalf of the Health Board Defendants in her adept submission, that Section 8 cannot be used to support a blanket prohibition on discovery in favour of the Adoption Board because to do so would mean that, even in matters unrelated to adoption (and she argues that this is such a matter) no Order for discovery could ever be made against the Adoption Board. She makes a second argument that, even if there is some prohibition on discovery in favour of the Adoption Board, pursuant to Section 8, this does not apply to the Adoption Society. And further she says that the position of the children referred to in Section 8 is, in the present case, neutral. Therefore there should be no barrier or impediment to an Order for Discovery being made.

13. She also argued that the mischief sought to be cured by Section 8 of the Adoption Act, 1976 was the necessity to protect the identity of children who had been adopted and that this protection could be secured by means of appropriate deletions or obliterations or masking over of parts of the documents sought and in this regard she relied on an extract from the Dail debates at the time when the Adoption Act was proceeding through Government.

14. On the part of the Adoption Society, Miss Jackson argued that its papers, once they are completed, or the Adoption Society's procedures have ended, are handed over to the Adoption Board and do not remain with the Adoption Society, that the Adoption Society had no relationship whatsoever with the Plaintiffs in these proceedings, and that the Adoption Society is entitled, as a matter of public policy, to have protection against discovery of its documents. On behalf of the Adoption Board Mr Shane Murphy argued that Section 8 is clear and unambiguous on that although he was prepared to permit the Dail debates to be looked at de bene esse, he did not accept that the Court was permitted to do so, relying on the decision of the Supreme Court in Howard and Others v Commissioner of Public Works in Ireland (1993) ILRM 665, in which the Supreme Court stated at page 681:

15. While I do not have to express a view in relation to the admissibility of Dail debates or extracts from Dail debates in the context of this motion, I accept Mr Murphy's contention that the Section is clear and unambiguous on its face and that I should not take into account the terms of any Dail debate on the matter. But even if I were permitted to do so, and Mr Murphy agreed that I could look at the Dail debates de bene esse, I am of the view that these debates do not assist the Defendant Health Boards' argument, since they reiterate what is desired to be protected, which is not only the identity of the children involved, but all matters connecting them to relevant parties.

16. Some considerable importance must be attached to the words "the best interests of any child concerned to do so" , because it makes it clear that the statute intends that the only circumstances in which the discovery can be made is where it is in the best interest of the "child concerned" . It seems to me that the "child concerned" in the context of the modification found against the absolute blanket prohibition which Section 8 imposes, is the child concerned with the particular documents sought to be discovered. Neither child concerned with any adoption in 1982 or in 1985 which generated the assessment reports sought to be made available by discovery in this motion, is a Plaintiff to these proceedings, or a Notice Party to these proceedings, or in any way concerned whatsoever with these proceedings. It is insufficient for the Health Board Defendants to argue that such children are "neutral" in the context of the application for discovery, and I accept the argument put forward both by Miss Jackson on behalf of the Adoption Society and by Mr Murphy on behalf of the Adoption Board that such children may not be neutral, in particular, in circumstances where such information could be passed or would be capable of being passed to the first named Defendant in these proceedings. No case has been made out to me upon which I could justifiably find that the making of an Order for Discovery in respect of assessments carried out by the Adoption Society or by the Adoption Board in the context of the present proceedings could be "in the best interests" of either of the children concerned in the adoptions in 1982 or in 1985.

17. Two further matters arise in relation to Section 8. The first is that Miss McGoldrick on behalf of the Health Board Defendants argues that it is not permissible to interpret Section 8 as granting any form of blanket prohibition against discovery in favour of the Adoption Board, because to do so would have the effect of granting a complete immunity from disclosure to the Adoption Board in all circumstances. I do not think that this is a valid argument to be made in the present case. The provisions of Section 8 have to be considered in the context of the Adoption Act of 1976. No such prohibition against disclosure would be found to exist in a case where, as has been suggested to me by Counsel on behalf of the Health Board Defendants, an employee of the Health Board sought damages for wrongful dismissal. It is quite clear that the prohibition arises only in the context of documents generated for adoptions or related matters arising under the Adoption Act, 1976. I do not think that the legislature intended that the provisions of Section 8 could be got around by an application made in proceedings of this nature (being a claim for assault and battery brought by the Plaintiffs against the first named Defendant and for negligence and breach of statutory duty against the second and third Defendants), if to do so would have the effect of negativing the value of the protection available under Section 8 of the Act 1976.

18. The final of the two matters raised on behalf of the Health Board Defendants arises from the argument made on their behalf that even if Section 8 protects An Bord Uchtala it does not however protect against disclosure or discovery of those records or assessments or reports which are in the power or procurement of the Adoption Society. In this context it is worth noting the precise words of Section 8 of the Act of 1976 which speaks against, inter alia, discovery of "any book document or record of the Board , or otherwise etc." It is argued that these words mean that the only protection which is granted is in respect of documents which belong to the Adoption Board, but not in respect of documents which emanated from the Adoption Society.

19. It seems to me that this is an attempt to avoid or get around the strict provisions of Section 8 of the Act. Section 8 of the Act does not talk about documents "belonging to" or "owned by" the Board but rather speaks about "any book document or record of the Board" and it seems to me, on balance, that this wording was deliberately chosen so as to ensure that what is protected from discovery are all the records and surrounding documents which appear on the files of the Adoption Board, even though in relation to part of those files the document may have been generated by a third party but becomes part of the file of the Adoption Board subsequently. In the present case it is acknowledged that an assessment or assessments may have been carried out by the Adoption Society, indeed probably were carried out by the Adoption Society, in respect of the first named Plaintiff and his family in 1982 and 1985, but it is said on behalf of the Adoption Society and on behalf of the Adoption Board that those documents become the documents of the Board, and remain as an integral part and parcel of the file of the Adoption Board for the purposes of Section 8 of the Act. The documents on the Adoption Board's files therefore remain free from discovery except where their disclosure or the disclosure of part of the file or of any information contained in the file is in the best interest of the children concerned. To permit discovery through a third party of part of the files of the Adoption Board would defeat the clear intention behind Section 8 of the Act, and I do not believe it was the intention of the legislature to negative the Act by permitting the same documents or related documents to be made available from an adoption society or, for example, from a doctor or psychologist when they could not be made available directly from the Adoption Board.

20. Having regard to the foregoing I reject the application for non party discovery sought against the Adoption Society and the Adoption Board. In these circumstances I do not find it necessary to consider the application for disclosure of the address of the named party, being a social welfare officer of one of the Defendant Health Boards at the time, since it was indicated to me that the purpose for which the name was sought was to facilitate proving the assessment reports in Court.