High Court allows publication of adoption judgment with redactions to protect infant's welfare and foreign rights.

Neutral Citation Number: [2006] IEHC 65

THE HIGH COURT

[2005 No. 1855 P]

BETWEEN

THE ATTORNEY GENERAL

PLAINTIFF

AND

JOSEPH N. DOWSE AND LALA DOWSE

DEFENDANTS

AND

THE HIGH COURT

[2005 No. 64 M]

IN THE MATTER OF TRISTAN DOWSE AN INFANT

AND IN THE MATTER OF DIRECTIONS IN RELATION TO ENTRIES IN THE REGISTER OF FOREIGN ADOPTIONS

AND IN THE MATTER OF SECTION 7 OF THE ADOPTION ACT 1991 AS AMENDED BY SECTION 15 OF THE ADOPTION ACT 1998

BETWEEN

JOSEPH N. DOWSE AND LALA DOWSE

APPLICANTS

AND

THE ADOPTION BOARD AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated 31st January, 2006.

1. Having already delivered judgment herein on the substantive issue it is necessary now to deliver judgment in relation to the

question as to the discrete question as to the extent to which such judgment should be put in the public domain.

2. The starting point in relation to this question is that the specific power to hear proceedings under s. 7 of the Adoption Act 1991

other than in public is discretionary rather than mandatory. In this connection it does not appear to me that the provisions of the Civil

Liability Act 2004 cited to me by counsel for the respondent are apposite, in the present context, by reason of the jurisdiction

invoked in these proceedings. The specific legislation to which I must direct my attention is s. 7 of the Adoption Act 1991. The

discretion which is vested in the court is set out in that section and in particular by the usage of the words “if the court so

determines” in subs. (4) of that section.

3. It is a fundamental principle of Irish law that justice should be administered in public and that the administration of justice in public

is an essential feature of a truly democratic society.

4. As a constitutional and legal principle, even if cases are heard in private there may be issues which are of public concern and

where the interest of justice requires that after the hearing in private the judgment made therein should so far as possible be made

public.

5. This is clear from the judgment of Walsh J. in the case of Re: R Limited [1989] I.R. 126. At p. 134 of the judgment Walsh J.

observed:

“If part or whole of the proceedings were to be heard other than in public I am of the opinion that so much of the

judgment as does not disclose the particular information which had been held from publication to be pronounced in public”.

6. Thus it seems to me that this court must concern itself with those portions of the judgment which deal with the relevant facts and

general legal principles on the one hand; and on the to other specific areas, which for a number of reasons should remain private. It is

also necessary in carrying out this balancing exercise to have regard to particular issues to which reference will be made, and also, I

am satisfied to the doctrine of proportionality.

7. The court must also have regard to the provisions of Article 6(1) of the European Convention on Human Rights which deals with

this issue. As a general principle of Convention rights, as well as rights under the Constitution, courts must make their judgments

public unless such a course of action would constitute a denial of justice. Even if a court concludes that the publication of certain

matters in the judgment would constitute such a denial, then it must nonetheless publish as much of the judgment as is possible

without bringing about such a denial of justice. These issues have been dealt with by English authority Pelling v. Bruce-Williams

[2004] 2 F.L.R. 823.

I8. should also have regard to the precedent in relation to the decision in Re A Ward of Court cases [1996] Vol 2 I.R. at p. 73 where

the judgments of both the High Court and Supreme Court were delivered in public because the importance of the principles involved,

although the evidence at first instance was heard in private.

19. How then should these principles be applied on the facts of this case?

20. First, the factual context. The court must have regard to the fact that the position in regard to Tristan Dowse is already very

much in the public domain. His circumstances have already been the subject of extensive public discussion and comment. This renders

the position herein quite distinct from the ordinary realm of family law cases which are heard in private and where judgments are

issued protecting the anonymity of the parties.

21. Thus on these unusual facts, a persuasive precedent which is of assistance is that of Blunkett v. Quinn [2005] 1 F.L.R. 648 which

concerned an application by a senior politician in the United Kingdom to establish that a child the subject of these proceedings was

his son and wherein he also sought a Parental Responsibility Order and Contact Order in regard to his child.

22. In the course of judgment in that regard the following statement of law was set out by the trial judge therein

“In considering the competing rights, (of privacy as against publication) I have come to the clear conclusion, that having

regard for the quantity of the material that is in the public domain some of it even in the most responsible commentaries

wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived

facts will go further to help secure the Article 6 and Article 8 rights of all involved then would be the courts’ silence which

in this case will only promote further speculation and adverse comment that will damage both the interests of those

involved and the family justice system itself. I have guarded against arbitrary interference in the private and family lives

of all concerned by hearing the appeal in private and by excluding from this judgment unnecessary personal material such

as that concerning the details of the health of Mrs. Quinn. To give this judgment in public is, I believe, the most

proportionate of the options available to me. For the record, although it will not be a matter for me I expressly refute the

proposition that this means that all future hearings in these or any related proceedings must either be in the public domain

or give rise to a public judgment. That does not follow.

23. I accept that these statements by Ryder J. in Blunkett are of assistance and that to a degree, they are applicable here. But they

must be subject to these caveats:

24. The first is that this court cannot countenance a situation where the acts of some third party or persons, have the effect of

putting the issue of publicity regarding a case “into play”. Matters do not simply come into the public domain. They are put there by

the acts of persons and these persons may be related to the proceedings, or was plainly recently the case here, persons not related

to these proceedings.

25. The second principle is that the welfare of the minor must at all times remain paramount. In the application of this principle the

orders made by the court must have regard to the welfare principle of Tristan both directly – and indirectly. This will include the

preservation and protection of Tristan’s rights to maintenance, and refraining from the publication of material which might prejudice

that right. It also includes purely factual evidence adduced, relating solely to matters personal to the parties, and not relevant to the

constitutional and legal principles considered herein.

26. I must also have regard to another issue; that is the respect due to the courts and law of the Republic of Indonesia and that the

selective publication of some part of this judgment might conceivably have the effect of affecting legal rights and issues relating to

Tristan Dowse himself in Indonesia. The court must also weigh the issue of publication in the light of the rights and interests of others

not parties to these proceedings and who are not represented herein.

27. Having regard to these principles it seems to me that the interests of justice and of law will be met by the following.

28. There will be publication of the judgment but having regard to the following considerations.

29. First, I do not think there is any reality to the exclusion or redaction of the names of the parties in these proceedings. The matter

has also received a very considerable amount of publicity here and elsewhere.

30. Second, I will redact the names of a number of other persons who are mentioned in the course of these proceedings and who

were unrepresented and whose rights or interests maybe affected here or elsewhere.

31. Third, having regard to the principles outlined, there will be certain other redactions made in both the direct and indirect interests

of Tristan Dowse and his rights as identified herein both in Ireland and Indonesia.

32. I wish to make it perfectly clear that all redactions herein are made only having regard to the preservation and protection of

Tristan’s rights now and in the future, and for no other reason.

33. The judgment also contains specific matters appertaining to the personal financial affairs of Mr and Mrs Dowse, as distinct from

the legal principles which are outlined in the judgment. In the circumstances I think it proper that these should be excluded also with

certain necessary adaptations.

34. The full provisions of the order herein should be published, if only for the purely practical reasons: (a) to correct any false

impression created in this jurisdiction and (b) having regard to the possibility that the matter might come into the public domain in a

manner which might actually be prejudicial to Tristan’s interest. Some recent media coverage might have created an incorrect

impression as to the nature of the award and the means of the applicants as established by discovery and in evidence.