Courts Bill 2013: Second Stage

Wednesday, 27th March 2013

I welcome the Minister to the House and I thank him for continuing his practice of introducing Bills in this House.

The Bill has a twofold purpose. The first is to amend the rules relating to certain proceedings heard otherwise than in public and the second is to increase the monetary amounts the District Court and Circuit Court can award. I will limit my intervention to the first purpose, which is the proposed amendment to the in camera rule in family law and child care cases.

I broadly welcome the efforts in the Bill to strike the appropriate balance between the public interest and the privacy of adults and children involved in family law and child care cases. Most people are familiar with the variant of Lord Hewart’s famous aphorism from 1924: “…it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The principle of open justice is a foundational common law principle, an important human rights obligation and an enumerated provision in the Constitution. The relevant article, Article 34.1, provides for exceptions to the administration of justice in public in “special and limited cases”. Such cases include those involving the most vulnerable in our society and children are one such group. Children and families involved in family law and child care proceedings present with myriad vulnerabilities and in fragile situations. There is, therefore, a real danger of adverse effects for the parties involved in the immediate and long term. In light of the highly personal and sensitive nature of family law and child care cases, privacy and the anonymity of the parties should be protected from public consumption through media reporting.

However, a balance must be drawn, which this Bill purports to refine, and I agree that where anonymity is guaranteed and respected, the facts of family law and child care cases and the decisions of the courts should be published. This balance, if fully legislated, guided, explained and implemented, can account for the vulnerabilities of the children and families involved while ensuring key issues are brought to the attention of the public and debated through public discourse. Failing to inform the public and adopting the cloak of secrecy, to the extreme, has had disastrous consequences for Irish society in the past. A clear example of this can be seen with the injustices perpetrated against the women detained in the Magdalen laundries. That issue remained completely out of the public realm while the injustices were occurring. It is important that the public interest and the need to foster and encourage a greater understanding and trust in the family law and child care system is embraced and implemented. The presence of the press will also, hopefully, ensure the recording of precedent and the reasoning behind decisions in proceedings where there is no written judgment will take place.

I have a few questions about the practical application of the amendment to section 40 of the Civil Liability and Courts Act 2004, as contained in section 5 of the legislation. The scope of the circumstances in which the court may exclude or restrict the attendance of press representatives and prohibit or restrict publication of certain evidence is broad. Ultimately, this will be a decision for the judge to make weighing the public interest considerations against the considerations enumerated in the Bill, which include the best interest of the child; that the evidence is sensitive personal information; that the evidence might be prejudicial to a criminal investigation or criminal proceedings; that the information and evidence is likely to lead members of the public to identify a party or child; or where press attendance might inhibit or cause undue distress to a party or child. Will the court’s adjudication over this complex balance be guided by court rules, practice directions or clear procedural guidelines? Who will be charged with making applications that the press should not attend? Will this be the role of the guardian ad litem, family member, HSE or the judge? Will there be an avenue of appeal to the decision to allow or restrict the presence of the press? How will the manner by which courts arrive at decisions in this regard be monitored?

My concern is that once information is disseminated, it cannot be taken back. This is particularly concerning, given the adverse effect or impact for the party concerned may far outweigh a possible monetary remedy, press apology or criminal conviction of those responsible for the publication of the material in question. Whether it is a child care case, family law case or a case before the Children Court, I strongly recommend that any guidelines or rules relating to the media reporting of any case to which a child is party be proofed against the Council of Europe Guidelines on Child-Friendly Justice 2010. These were drafted by Professor Ursula Kilkelly of University College Cork in consultation with children across Europe. While not binding on member states, the guidelines are standards of best practice. Their strength and relevance further lies in the fact that they have been substantiated by children’s own experiences of the justice system.

I have no doubts about the intention of this amendment but I have doubts, in the absence of rules or implementation guidelines, about its practical application on the ground. We need only to consider the Children Act 2001, which reads as an informed, welfare centred and progressive legislation. However, the weakness of the Act lies in the distinct lack of any procedural guidelines being produced to date for its implementation. Guidelines are desperately needed for the implementation of the Children Act and for this Bill if their full intention and spirit are to be realised. The children’s rights referendum very much underpinned that the best interest of the child needs to be realised in practice. I have spoken to legal practitioners working in the Children Court who are deeply concerned by what have been described as routine breaches of the Children Act in Dublin and regional sittings of the Children Court.

Examples of these breaches include the calling of the name of the child by the court appointed registrar into the public waiting room, the former practice of District Courts of including the name of young person with “YP” in brackets beside the name on the court list or the presence of Garda and legal representatives unrelated to the specific case in the court room which is mandated to sit in camera. These malpractices cannot be tolerated and need to be remedied. Some of the remedies are straightforward. For example, why not ascribe a number to children for their cases which is communicated to them upon their presentation at court and the calling out of the case number only as opposed to the child’s name by the registrar for everyone to hear? We need to ensure the strict application of the in camera rule by liaising with judges presiding in the Children Court to make sure only gardaí and legal representatives directly involved with the relevant proceedings before the court are present in the court room. It is also clear that a child-friendly environment described by international standards of best practice and the European Court of Human Rights, ECHR, in cases such as T v. UK and V v. UK are not being implemented. Privacy is central to the creation of this environment.

In the cases I mentioned, the ECHR expressly recognised the adverse impact of overt media presence on the ability of the children in question to effectively participate in the proceedings before that court. As a result, my earlier concern arises as to who acts as the guardian of the child’s privacy and whether those charged with that task fully understand the importance of the child’s privacy and the full extent of the child’s vulnerabilities and backgrounds. This raises the greater concern and question as to what training and specialisation the people who are currently representing and adjudicating on children have, especially in light of the state legal aid payments that legal representatives appearing in the Children Court receive. Specialist training needs to be considered. In the UK, specialist panels have been set up where those involved must undertake specialist training. Will the Minister give serious consideration to a similar requirement here in order that if somebody is receiving legal aid payments in respect of a case in the Children Court, he or she must have attended specialist training?

I welcome the Minister’s proposals to introduce amendments to the Coroners Act 1962 and the Civil Legal Aid Act 1995 and I look forward to dealing with them on Committee Stage. Senator Walsh referred to mediation and I look forward to the mediation Bill the Minister intends to introduce. It will be important to avoid cases going to court. This would be best, especially when children are involved. I look forward to developing alternatives such as family group conferences, which was proposed in the Fifth Report of the Special Rapporteur on Child Protection. There are other ways. While I raised a number of concerns, I welcome the spotlight being put on the Children Court.

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