A hearing to have two children kept in the care of the State until they are 18 can go ahead before their father's criminal trial for the alleged rape of one of them, the High Court has ruled.
Mr Justice Anthony Hunt said the care order hearing should only be adjourned if there was a real risk it would interfere with the criminal proceedings.
“I can’t discern any real risk,” he said.
The children were taken into care on a temporary basis in 2014, after the allegations of sexual abuse were made. Their father, a widower, has been remanded in custody, and is due to be tried at the Central Criminal Court in early 2016.
A hearing to consider whether the children should remain in care until aged 18 is planned for the District Court later this month and the father sought to have it postponed until after his trial.
At the District Court earlier this year, Judge Brendan Toale rejected the father's application for a postponement. His reasons included that it was in the best interests of the children for the hearing to go ahead. The father then sought a judicial review of that decision at the High Court.
Risk of incrimination
On Tuesday, counsel for the father said her client wanted to take part in the care order hearing, but he had a right not to incriminate himself and there was a risk he could so.
Her client had agreed the children should remain in State care until after the criminal trial, she said, and the Child and Family Agency would be able to plan for them without the need for a full care order.
The agency and the children’s guardian opposed the father’s application.
Counsel for the agency said the father was denying the allegations made against him and was saying the child made them up, therefore self-incrimination was “a red herring”.
“If you are not going to incriminate yourself then you don’t need to worry about that right,” he said.
Criminal trial
He also said, though the criminal trial was scheduled for early next year, there was no guarantee it would go ahead then. And he argued that if there was a full care order hearing, those dealing with the children could do so on the basis of its findings.
Counsel for the guardian said the argument about self-incrimination was “utterly theoretical, speculative and in reality, opportunistic”.
He also said the uncertainty about their future was having a negative impact on the children.
After deliberating for 25 minutes the judge ruled against the father. He said a decision to adjourn a hearing was discretionary and unless the judge was manifestly unreasonable, or erred in legal principles, a discretionary decision is not open to legal challenge. He said he found “absolutely no flaw” in the manner in which Judge Toale exercised his discretion.
He also said the children were entitled to the disposal of proceedings as quickly as possible.
