Opening door to a hidden domain

Until now the door has been firmly shut, occluding the public’s view of some of the most sensitive cases that come before the courts. But in the next few weeks, with the coming into effect of a law that opens the family and childcare courts to journalists, a largely hidden domain of Irish life will be exposed to public scrutiny for the first time.

The law that relaxes the "in camera" (in private) rule was enacted in July and will come into force when Minister for Justice Alan Shatter signs a commencement order. It will remove the blanket ban on reporters attending family law, childcare and adoption cases in courts around the country, enabling the media to cover proceedings dealing with divorce, separation, domestic violence, maintenance and custody matters, as well as cases where the State takes children into care. The law imposes a strict ban on the publication of any material which would be likely to lead to the identification of individuals involved, but it still represents a landmark step.

Mr Shatter has said the move is designed to strike a balance between greater transparency in family court cases and the need to protect the anonymity and privacy of families and children. “Media access and reporting of cases will add transparency to the conduct of family law and child care proceedings and will provide valuable information on the operation of the law in this area,” he said. It has been roundly welcomed by media groups.

With the law about to come into force, however, questions are being raised from across the spectrum of interests – from journalists and lawyers to children’s rights advocates and campaigners – about how the reform will work in practice.

Some have been wary from early on. Commenting on the Bill as it wound its way through the Oireachtas earlier this year, Children's Ombudsman Emily Logan told the Government she had "serious concerns" about the potential impact of the changes, warning that they may lead to the identification of individuals, cause children to retract child abuse disclosures or deter parties from going to court.

Restrictions
For lawyers and the media, the major unanswered questions centre on how workable the law will turn out to be, in particular given that the entitlement to report is qualified with so many possible restrictions. Under the Act, the court can – either at its own initiative or at the request of any of the parties – exclude the media or impose restrictions on what may be reported where it deems this is necessary in order to preserve the anonymity of a party or child, by reason of "the nature or circumstances of the case" or because it deems it "necessary in the interests of justice".

The law lists a number of factors a court may consider in determining whether to restrict reporting or exclude journalists. These include the best interests of a child; the extent to which the presence of the media might inhibit or cause undue distress to a party or a child; and the need to protect a party against coercion, intimidation or harassment.

A judge may also consider whether information given in evidence is, or is likely to be, commercially or personally sensitive – with the latter category drawn widely to include information relating to the medical history of the person, their tax affairs and sexual orientation.

Eugene Davy, a family law specialist at Hayes Solicitors in Dublin, envisages that most of his clients, when asked if they have an objection to the presence of journalists, will indicate a "strong preference" for seeking to have the media excluded. As a consequence, he expects many hearings to be preceded by arguments on the issue – a situation that could put judges, having not yet heard the evidence, in the difficult position of having to assess how sensitive it may turn out to be.

“I am concerned about it,” Mr Davy says. “I think that, from my clients’ point of view, it is going to perhaps deter some clients from going ahead with their court hearings if they think there is a likelihood or even a possibility of very private, sensitive matters being reported in the media.”

Mr Davy acknowledges the act gives “a lot of protection” to the parties, but says that even if every provision is complied with, that will not necessarily ensure that people are not identified. “I will not be able to give that reassurance to clients any more. Some clients might then say, ‘If there’s any chance that my case will be reported, I won’t go ahead.’”

According to Noeline Blackwell, director general of the Free Legal Advice Centres (Flac), lawyers and journalists will have to negotiate the limits of the new regime over time. "My guess is that people will tip-toe into it," she says. "But on balance I think it's an important step forward . . . It happens in other countries and the world doesn't fall apart.

“Because it’s new and because it’s a different approach to a very emotional and sensitive area of law, there is likely to be some initial testing of the waters. But after a while the parameters will become clear.”

Deterrent
Ms Blackwell says the in camera system feeds a certain suspicion about the workings of an opaque system, and believes the reform will help to dispel some myths. "People are very often disaffected coming out of family court proceedings. Families feel that hidden things are happening. None of that is good for the administration of justice. So the move to relax it is in principle good."

She is less concerned that the media will end up identifying individuals – after all, journalists already file court reports every day in which they must take care not to identify parties or children, she remarks. “My concern is that they [the media] won’t have the resources and the interest in going in and reporting on these cases,” she says.

The new law contains a mighty deterrent against publishing or broadcasting too much information: any breach of the rules on anonymity will leave journalists facing a penalty of up to three years in prison and a €50,000 fine.

Mr Davy suggests it will take an authoritative judgment from the High Court to set the ground rules under the new regime, but that could take quite some time. In the meantime, "we will be feeling our way," he says. "Solicitors and barristers will be feeling their way – journalists and judges likewise."