A man has lost his action over being refused access to hospital and other records concerning himself and the child he mistakenly believed for four years was the biological daughter of himself and his now estranged wife.
After the girl was born in 1993, the man formed a strong parental bond with her and all three lived together as a family until he learned he was not the child’s natural father and the girl was the result of an extra-marital relationship.
Unknown to him, his wife had had the girl’s birth certificate amended with the natural father’s name substituted for his, secretly obtained DNA tests confirming the natural father’s paternity and got court orders requiring the natural father pay birth expenses and financial support that her husband had also been providing.
The couple split acrimoniously in 1997 and the wife moved out of the family home, taking the child with her. The man had great difficulty accepting the child he had raised as his daughter, and whom he deeply loved, was not his.
In January 1998, a week after he started guardianship proceedings, his estranged wife reported to a health board clinic the child had told her she had been touched inappropriately by him.
The man was notified that his wife had indicated she had “concerns” for her daughter who, she said, had indicated to her the man had touched her on her “front” and “back bottom”.
The man, who maintained such claims were false, was given no further access to the child. Various assessments and investigations involving health boards and a hospital followed, ultimately leading to the man being informed the “concerns” or “allegations” made were “unconfirmed”.
In October 1999, he was told the investigation was closed.
Critical
The High Court was previously critical of failures to assure the man that interviews by social workers and others with him would be recorded and about the absence of guidelines under which the hospital assessment unit operated.
Various events which happened could have been avoided if a social worker had agreed to give the man a full account of the allegations reported to have been made by the child to the mother, the court observed.
The man applied under the Freedom of Information Acts for all records held by the hospital and HSE relating to himself and the child. He got some records relating to himself but was refused records concerning himself and the child.
A 2005 decision by then information commissioner Emily O’Reilly refusing records relating to himself and the girl was set aside by the High Court due to legal errors in how her findings were made, including her finding of absence of malice in the allegations.
In 2014, her successor as commissioner, Peter Tyndall, while not agreeing with aspects of his predecessor’s findings, upheld the refusal of access to records relating to the man and girl.
Mr Justice Paul McDermott, in a reserved judgment, dismissed the man’s challenge to that decision.
The records are personal information exempt from disclosure unless they come within “public interest” provisions of Section 28 of the FOI Acts, the judge said. The man’s private interest in accessing the records did not amount to a “public” interest and did not outweigh the privacy interests of the girl, now a young adult who, along with her mother, strongly objected to this “joint personal information” being disclosed.
The suggestion that access to the records may assist the man in deciding if he has a cause of action against any of the parties in this matter did not qualify as matters of public interest under the Act, he held.
Legislation would be required to allow access to records by persons claiming to be falsely accused of child sexual absue, or any other crime, he added.
