28 September 2006
(On the Order of Business)
I have also received notice from Senator Henry of the following matter:
The need for the Minister for Justice, Equality and Law Reform to report progress on his plans to change the in camera rule in family law cases to allow for general reporting of overall trends while continuing to respect the privacy of all those involved as promised in the agreed programme for Government between Fianna Fáil and the Progressive Democrats published in June 2002.
I regard the matters raised by the Senators as suitable for discussion on the Adjournment and they will be taken at the conclusion of business.
(On the Adjournment)
Family Law Cases
An Leas-Chathaoirleach: I welcome the Tánaiste and Minister for Justice, Equality and Law Reform back to the House and congratulate him on and wish him well in his new position.
Dr. Henry: I, too, welcome the Minister back to the House.
The Minister will be well aware that the family courts are some of the most important in the country and are, quite rightly, held in camera. He will also be aware that the Law Reform Commission report on the family courts published in 1996 expressed concern about the disadvantages of in camera hearings. Page 15 of that report reads:
In the Consultation Paper, concerns were expressed about some of the consequences of holding family law proceedings behind closed doors. It is increasingly recognised that the absence of any opportunities for external scrutiny of family proceedings, even if it does not in fact affect the quality and consistency of judicial behaviour, creates an unhealthy atmosphere in which anecdote, rumour and myth inform the public's understanding of what goes on in the family court. Comments and submissions on this matter echoed these concerns, but were allied to a strong desire to continue to protect as far as possible the privacy of family members.
While there have been certain changes within the Judiciary in that there is now far more discussion between members of the Judiciary about cases, I do not know how far these can extend into the family courts. The Law Reform Commission recommendations in regard to the privacy of family proceedings states:
Bona fide researchers and students of family law should be permitted to attend family proceedings. Access by a bona fide researcher to family proceedings should not be refused by a judge except on the basis of compelling and stated reasons. The attendance of students of family law should be at the discretion of the judge.
There should be a general principle, applying to all family proceedings, prohibiting the publication of information which tends to identify the parties and members of their families.
Court staff should be enabled to record more judgments in family cases and thereby make available more transcripts of final reports.
That recommendation provides for a greatly changed scenario.
Some years ago, when the Tánaiste was Attorney General, the Courts Service appointed a young barrister to the family courts to act as an intermediary between it and the general public. It is particularly important that Members of the Oireachtas have some idea of the complexity and seriousness of what takes place there. However, I recall that when Attorney General, the Tánaiste decided that in camera meant in camera and this was reflected in the Civil Liability and Courts Act 2004, which allows for the reporting of law court proceedings and for persons approved for search purposes to attend at family law court sittings.
In early June this year, the Courts Service placed an advertisement in the newspapers inviting proposals for the provision of family law reports, judgments, trends and other statistical information. It was stated that experience in the area of legal reporting, the collection and analysis of statistical information and its presentation and publication were essential. It further stated that the Courts Service proposed to commence reporting arrangements on a pilot basis in a selected number of High, Circuit and District Courts. It appeared from that advertisement that more than one person would be involved. I would be grateful if the Minister could tell me what progress has been made on this important issue.
Tánaiste and Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I welcome the opportunity to inform Senators of the progress being made in the area of reporting of general trends in family law cases. I know from the debate in this House and in the other House during the passage of the Civil Liability and Courts Act 2004 that the subject of family law and the in camera rule is of great interest and import to Members of both Houses.
I readily acknowledge that there is a dearth of information on the reporting of family law cases. That is why, in the Civil Liability and Courts Act 2004, I sought to introduce a system whereby general trends and information relating to family law cases could be reported. Section 40 of the Act provides for a relaxation with regard to the in camera rule. Of paramount importance in amending the in camera provision was that the confidential nature of family law cases would continue to be respected. Many people, based on anecdotal material and rumour, had a black view of the family law court system. Given that all proceedings were held in camera there was no opportunity for rebuttal or examination as to the validity of what was being said against the courts.
However - I want to stress this point - some people had a wholly over-ambitious view in regard to the extent to which the rule could be relaxed. For example, to allow any significant relaxation as to who could attend family law cases in, say, a rural town where a Circuit Court was administering family law would be to tear apart, in effect, the secrecy to which some people are entitled. The most intimate details of sexuality, psychology, emotions and so on are dealt with by the family law courts. Some people believe one can allow perfect strangers to attend proceedings so long as they are bound by a degree of secrecy or non-publication. Were we to provide that, locals from a rural town could attend the proceedings of a case, say, involving two people in court to deal with a difficult matrimonial situation. In such circumstances, the inhibition to proper disposition of the case would be significant.
Section 40(3) of the Act will be of particular relevance to Senators. It provides that nothing in a relevant enactment shall operate to prohibit the preparation of a report of proceedings in family law cases or the publication of the decision of the court in those proceedings. The report may be prepared by a barrister at law, solicitor or person falling within a class of persons specified in regulations made by the Minister. The section goes on to state that the identity of the parties to the case or any child to which the proceedings relate must not be disclosed. The attendance of any person to report on a case must be in accordance with rules of court.
Senators will be aware that in 2005 I made regulations under the Civil Liability and Courts Act 2004 in which I specified the following classes of persons for the purposes of the section: family mediators who are accredited to the Mediators Institute Ireland, nominated by the Family Support Agency and approved by the Minister; persons engaged in family law research who are nominated by a body specified in the Schedule to the regulations and approved by the Minister; and persons engaged by the Courts Service to prepare court reports of proceedings under relevant enactments. Under these regulations I have already approved several persons engaged in family law research who were nominated by a body specified in the Schedule to the regulations. I have not as yet received any reports on this basis but expect I will do so in due course.
The Courts Service, in the context of its proposals to commence family law reporting arrangements on a pilot basis in a selected number of High Courts, Circuit Courts and District Courts, in July of this year invited proposals from suitable persons for the provision of family law reports, judgments, trends and other statistical information in those courts. My understanding is that the responses to this invitation have been evaluated and the Courts Service is in contact with the preferred candidate. The Courts Service hopes to be in a position to appoint the successful candidate in the coming weeks. As the Senator stated, this is a pilot scheme and the fact that I use the singular person in this context does not mean this position will become permanent.
While progress has been made towards obtaining better information and data about the operation of the family law courts since the passing of the Act, this will take time. It occurs to me that it should be possible to produce simple, non-labour intensive statistical abstracts from cases on questions such as: which spouse was awarded custody of the children; what proportion of capital was allocated under a property decision; and what proportion of earnings were allocated. It should be possible for staff of the court to do simple trends of this kind without having people sitting at the back of the court listening to entire cases to find out this information. It should be possible, almost on a tick box basis, to create a flow of information out of the family law courts which would be totally anonymous and would tell us that, for example, mothers receive custody in 92% of cases.
These are interesting statistics and the example I use is based on conjecture; I have no reason to believe this to be the case. Legislators are entitled to have a picture of what goes on but it is not necessary to have a person separate from the administration of the courts sit through whole cases to get statistical information of, admittedly, a superficial kind but which would guide us as to what is going on in the courts.
Reporting of general trends in family law cases must, of necessity, be based on a considerable number of such cases and this will take time. The progress outlined is evidence of the commitment of the Government and Courts Service on the in camera rule. The primary and secondary legislation is in place to allow for the relaxation of the in camera rules and it is now a matter of implementing it to the best possible extent.
As I indicated, simple reporting of cases is one thing but information can also be extracted on a non-report basis. This information will be, if not as valuable to some form of academic research, of huge importance from the point of view of giving the Houses a picture of what is happening in the family law courts.
The Seanad adjourned at 1.45 p.m. until 2.30 p.m. on Tuesday, 3 October 2006.
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