Seen to be done

Both public and private family-law proceedings should be open to scrutiny, argues Carol Coulter

The last day of the Dáil saw the passage of the Family Courts Bill, which, when commenced, will open a new chapter in family justice. 

Part of that chapter, according to the Family Justice Strategy published by the Department of Justice last year, will be a system for ensuring transparency in family-law proceedings.

The administration of justice in public is a fundamental democratic principle, reiterated on numerous occasions by our superior courts. 

Transparency in court proceedings is fundamental to democracy: it promotes confidence in the administration of justice; it permits the public and policymakers to see how laws work out in practice and whether or not they are fit for purpose; and it thus informs reform and change in law and policy when necessary. 

Transparency is of particular importance when states act against their citizens, especially vulnerable citizens, as has been emphasised by the European Court of Human Rights.

Criminal proceedings and child-protection proceedings are two areas in the administration of justice where the might of the state is pitted against individual citizens, often citizens who are poor, marginalised, and vulnerable.

The stakes are very high – the liberty of an individual in criminal proceedings, and the loss of constitutional family rights in child-protection proceedings.

Though these latter proceedings are described as inquiries, Ms Justice Iseult O’Malley has said in the High Court that it is difficult for parents to see them as other than adversarial. It is therefore of exceptional importance that the exercise of such state power is subject to scrutiny.

In camera never lies

Of course, this is not an absolute. The constitutional imperative that justice be administered in public is qualified in article 34 of the Constitution by the caveat “save in such special and limited cases as may be prescribed by law”.

In criminal law, this has meant that trials for various sexual offences take place “otherwise than in public”, while permitting the media to attend and report on the proceedings, subject to protecting the anonymity of the victim and, until conviction, the accused. The right to anonymity can be, and sometimes is, waived by the victim. 

There can be no doubt that media reporting of trials for rape and other sexual offences has contributed enormously to public debate and to legislative reform in this area, most recently in the Criminal Law (Sexual Offences and Human Trafficking) Act 2024, and the law has been undergoing reform in response to such debate for a number of decades now.

To name just a few reforms, the definition of consent to sexual activity, the right of a victim to legal representation in certain circumstances, and the specification of a wide range of sexual offences against children all arose following extensive and sustained public debate over many years, prompted by the reporting of trials for rape and other sexual offences.

The media has managed to do this while protecting the anonymity of victims, and without requiring detailed guidance from legislation or the courts.

This is in contrast to the manner in which child-protection proceedings, and family-law proceedings in general, have been dealt with.

Until recently, the in camera rule in these proceedings acted to prevent any reporting whatsoever, by the media or anyone else. Indeed, until the enactment of the Civil Liability and Courts Act 2004, even the disciplinary bodies of the legal professions could not be informed of what happened in family law proceedings.

Of course, the in camera rule – protecting the identity of parties in family law proceedings – is very important in ensuring that children and families do not suffer additional trauma as a result of their privacy being breached.

But for too long the way in which it operated inhibited any informed discussion of family and child protection law, and left such discussion to rely on rumour and anecdote.

The reform of the rule by the Civil Liability and Courts Act 2004 and the Child Care (Amendment) Act 2007 made possible the reporting of both private and public family law proceedings by the Courts Service and a number of other bodies named in regulations.

These included all the main third-level institutions, the ESRI, the Law Reform Commission and, for child care proceedings, FLAC. However, apart from the Child Law Project, to which I will return, there has been very limited take-up of these provisions. Media reporting continued to be prohibited. 

This changed with the Courts and Civil Law (Miscellaneous Provisions) Act 2013. This act permits the media to attend and report on all types of family-law proceedings, but their attendance is subject to a wide range of restrictions. 

The court can exclude or restrict attendance by journalists at all or part of the proceedings, or prohibit the publication of all or part of a report, on its own motion or by application of a party, whose views must be considered.

Circumstances in which exclusion or restriction can occur include whether information given or likely to be given in evidence is sensitive personal information, extending to information about a person’s tax affairs; the extent to which the attendance of bona fide representatives of the press might inhibit or cause undue distress to a party to the proceedings or a child to whom the proceedings relate, by reason of the emotional condition or any medical condition, physical impairment, or intellectual disability of the party or the child concerned; commercially sensitive information, from witnesses as well as parties; and whether any of this information, “when taken together with other information would, if published or broadcast, be likely to lead members of the public to identify a party to the proceedings or a child to whom the proceedings relate”.

Jimmy Olsen’s blues

Pity the unfortunate journalist charged with attempting to operate within these strictures.

Not alone might they have to face an application from lawyers for a party seeking their exclusion on any of the wide range of grounds available, then having to instruct their own legal representatives to argue for their right to attend, they would also have to possess the superhuman ability to be aware of “other information” that might be out there, which, put together with the report, could lead to identification.

Breaching these conditions could lead to fines of up to €50,000, or three years in jail, or both. It is small wonder that, to my knowledge, there has not been a single media report of divorce or legal separation proceedings in the decade since the enactment of the legislation.

The media do attend District Court proceedings from time to time when domestic violence applications are made, which are rarely contested. 

The provisions of the 2004 and 2007 acts operate differently. These restrict who can attend and report but, apart from requiring the protection of the anonymity of the children and families to which the proceedings relate, they do not impose any other restrictions.

The courts may, of course, themselves impose conditions on the publication of reports of the proceedings within the framework of the general presumption in favour of publication.

However, initially none of the nominated bodies in the regulations attached to the 2004 act took up the permission they had been granted.

In late 2006, the Courts Service established a pilot project on private family law reporting (set up and run by me) which continued into 2008, when the financial crisis hit and it was discontinued.

Reports of proceedings were published in magazine format every three months, along with a statistical analysis of one month’s proceedings in all the Circuit Courts, based on court records.

The report on the pilot project is published by the Courts Service at uspi.ie/attachments/ File/Report_of_the_Family_ Law_Reporting_Project_ Committee_to_the_Board_of_ the_Courts_Service.pdf. 

There has been no private family-law reporting since, apart from a short survey of family-law proceedings in selected Circuit Courts published by the Law Society as part of its 2019 report Divorce in Ireland: The Case for Reform.

In 2012, two philanthropic organisations – the One Foundation and Atlantic Philanthropies – approached the then Department of Children offering to support a project reporting on child-protection proceedings.

The department agreed to help with an office and logistical support, and the Child Care Law Reporting Project (later operating as the Child Law Project) was established by me in November 2012, under the sponsorship of FLAC.

The project published four volumes of reports a year on its website, www.childlawproject.ie, for the first three years, reduced to two in the latter years, though the total number of reports published annually remained approximately the same.

These reports ranged from composite reports of short hearings to reports of lengthy and complex cases, some of which took over a year to reach a conclusion, with multiple adjournments.

In addition, it published a number of analytical reports based on the data collected from the individual reports, along with ten other reports, submissions, and presentations, including on the proposed Family Courts Bill, the Child Care (Amendment) Bill and the review of the Child Care Act, all of which are on the website.

Information overload

Transparency in family law requires not just statistics and the analysis of data, which are both necessary, but also information on the process itself – that is, on the actual proceedings.The media have a role to play. But it is a limited role, for a number of reasons.

First of all, the law permitting media reporting, as outlined above, is not fit for purpose and requires substantial amendment if the media is to attend contested private family-law proceedings.

Secondly, for two decades now, the media has been under severe threat from Big Tech, which has consumed much of its income from advertising, reducing the resources available for extensive reporting.

There is no possibility a media organisation can finance attendance at a significant number of family-law proceedings in order to provide a comprehensive picture of what happens there.

Thirdly, the media, of its nature, publishes stories. Much family law is mundane – in private family law, it may involve disputing the exact amounts of maintenance to be paid, or the proportion of the value of the family home to be allocated; in child care law, the accounts of neglect by parents with mental health, addiction, and related issues are depressingly repetitive.

Yet this is the reality of family law, and it is very important that the full reality, not just the exceptional or dramatic cases, are reported so that the public and policymakers have an accurate and complete knowledge of what happens.

In relation to child-care proceedings, there has been a kind of symbiotic relationship between the Child Law Project and the media.

It publishes on average 100 reports on cases a year, some very concerning, some more mundane, some with happy outcomes as families are reunited or a child exits care as a happy, rounded young person facing into further education and responsible adulthood.

Not only are they fully anonymised according to a protocol developed for that purpose, the fact that they are not linked to a specific date or geographical area greatly reduces the danger of identification of the family.

The project produces a press release to accompany the publication of each volume, highlighting the issues identified, along with synopses of six or eight of the most significant cases. 

These are then published by the media, which alerts the public, stakeholders in the child protection system, and policymakers to the totality of the work of the project as contained on the website. The media also, of course, has access to all the reports on the website.

The role of the Child Law Project has been, in a sense, to act as a filter between the raw material of the court proceedings and the reports that reach the public domain.

It removed the identifying information and any disturbing details not essential to the decision in the case, while reporting comprehensively on the exchanges in court that reveal shortcomings on the part of State agencies and the reactions of parents to the proceedings, or an account of progress made in overcoming problems.

It is arguable that only a dedicated court reporting body can follow cases that may go on for years and devote resources to mundane as well as dramatic cases so that a representative picture is painted.

In private family-law proceedings, the information published could include the extent to which domestic violence allegations feature in the case; the intersection between family-law proceedings and criminal proceedings and how they are related; the manner in which the voice of the child is heard and the influence this has on the proceedings; and the use of expert evidence and the nature of the expertise involved.

The Department of Justice Family Justice Strategy, published last September, outlined its commitment both to supporting families going through the family courts and to a pilot reporting project, which has yet to be launched.

It is to be hoped that, when it comes into being, it will ensure that the public can access comprehensive information on the operation of the new family courts, now that the Family Courts Bill has been enacted.

Carol Coulter is former legal affairs editor of the Irish Times and the founder and director of the Child Law Project