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Extend CCLRP template to all family-law cases

Ireland should monitor and report on family-law cases in a manner that protects privacy rights while also ensuring a fair, transparent and accountable system of justice, leading family law expert Dr Geoffrey Shannon SC has said.

Responding to the call by Mr Justice Mostyn of the Family Remedies Court in the jurisdiction of England and Wales that a wealthy divorcing couple should be named, in line with the principle of open justice, Dr Shannon SC said that there was no doubt that “transparency is the very soul of justice”.

The husband in Gallagher v Gallagher (No 1) (Reporting Restrictions) had applied for a reporting restriction order or anonymity order, arguing that allowing his name to be revealed following the multi-million-pound litigation would affect his commercial interests.

“Anything that improves transparency has the potential to improve the operation of the justice system,” Dr Shannon said.

“In the Irish context, we have had a number of initiatives that have allowed the reporting of child and family-law cases, while protecting the anonymity of the parties,” he said.

Emotional crisis

Family breakdown comes as a shock, and usually provokes an emotional crisis akin to bereavement, and this trauma should not be exacerbated by public adjudication, the Law Society’s Dr Shannon said.

However, there is a balance to be struck, he added. The Irish system has largely achieved that balance, though there might be an argument for further refinement.

“There's no doubt that the principle that was advocated in the recent UK case is also common to the Irish system, which is that justice shall be administered in public.

However, family-law statutes have been very clear on preserving the anonymity of the parties, he added.

There was a need, though, to focus on striking the correct balance, Dr Shannon warned.

“Having a completely open system has the potential to further traumatise children, because you don't want family-law disputes played out in public,” he said.

Those disputes should be adjudicated in a manner that protects all of the parties, especially vulnerable parties, he added. 

On the other hand, it’s important that those who make decisions are held accountable.

A system similar to that of the Child Care Law Reporting Project (CCLRP), which reports on cases and on how discretion is exercised, but preserves privacy through anonymisation, is a laudable goal, he said.

Financial status

Dr Shannon added that he believed that there should be no discrimination, regardless of the financial status of parties.

“The same system should apply to ‘big-money cases’ and to cases where the parties have modest means,” he said. “It’s about looking at how the rights of citizens are protected within the justice system.”

“Striking a balance between privacy, and the right to a fair and accountable system of justice, is important.”

The public must have an understanding as to how judges exercise their discretion, balanced against protecting the identity of the parties, particularly vulnerable children.

A middle ground should be found that ensures examination of how discretion is exercised, Dr Shannon said. “It’s a very sensitive balancing act,” he said.

The CCLRP is a very good template in such matters, he added: “I think the time is perhaps right to look at how further transparency can be brought about by expanding on that initiative.”

Accurate picture

He suggested that the CCLRP template should be expanded to the entire family justice system: “That would provide us with a very accurate picture as to how the family justice system is operating. 

“Allied to that, we need good empirical data as to how the system is working,” he said. “As well as statistics, we need a clear public understanding of how routine family-law cases are dealt with,” he concluded. 

The CCLRP template should be extended to all routine maintenance applications, and routine cohabitant cases, as well as divorce and judicial separation cases, he said.

Prurient aspects

“The prurient aspects of individuals cases should be avoided,” Dr Shannon stated, with a clear understanding as to how the system operates, rather than the ‘tittle-tattle’ of individual family matters. 

The CCLRP template, funded by the State, could provide the same clear insights into how family law operates, the senior counsel concluded.