The total ban on reporting family law cases will be lifted by legislation to be introduced by the Minister for Justice early in the new year.
The reform is likely to allow for information disclosed in family law courts to be relayed to specific parties such as schools and health boards. It will enable unprecedented scrutiny of judgment patterns in such cases and will facilitate litigants in pursuing complaints if they are unhappy with their legal representation.
However, the move will not involve the opening up of the family law courts to the public and the media. The reporting will be carried out by people chosen by the Courts Service, with the agreement of the Minister.
The complete ban on any reporting of any matter concerning family law has been the subject of sustained criticism in recent years, and a number of unsuccessful legal challenges. A promise to reform the law in this area was contained in the Programme for Government.
The reform proposals will be contained in the Courts and Civil Liabilities Bill, and will allow for the publication of family law proceedings and decisions, provided the identities of the parties and their children are protected. The reporting will be according to a schedule drawn up by the Courts Service in agreement with the Minister, and involving the attendance in court of a person to be decided by the Courts Service.
A pilot scheme involving a designated person attending the main Circuit Court in Dublin dealing with family law, reporting on cases and drawing up statistics, was agreed by the Courts Service more than two years ago, and a barrister was appointed to do this work. But the scheme was never implemented, as the Courts Service obtained counsel's opinion that it could not be proceeded with under the existing law.
Different formulations are used in different pieces of legislation to prohibit the publication of the proceedings. They include "in chambers", "in camera", and "otherwise than in public", and have been held to mean that the proceedings must be in secret, so that neither the public nor most members of the legal profession are aware of what happens in the family courts.
The sections of the Courts and Civil Liabilities Bill detailing the new proposals will involve the amendment of a number of Acts relating to family law, all of which contain a prohibition on reporting, usually under the term "otherwise than in public". These include the 1931 Legitimacy Act, the Family Home Protection Act, cases involving separation, divorce, maintenance, domestic violence and the status of children.
The new provisions will also end the situation which obtains at the moment, where if a complaint involving a family law case is made to a professional body, the "in camera" rule can be used to prevent the case being heard.
The courts will also be allowed to make orders disclosing certain aspects of family law proceedings to specific parties. This is likely to arise in relation to children, and could allow certain matters to be reported to schools, health boards, the passport office or others dealing with matters concerning children in family disputes.
At the moment, if a case is settled, reports obtained in the course of the proceedings cannot be made available to anyone, even if they contain matters of vital importance to the welfare of the children.
Following the enactment of the legislation, which will be published next month, the Courts Service will have to draw up a procedure providing for the preparation and publication of reports of family law proceedings. Although it appointed a barrister to do this the last time, there will be nothing in the proposed legislation providing that the person doing the reports must be a lawyer, and he or she could be a journalist or other person trained in reporting.
However, the proposed legislation does not envisage a situation, as pertains in certain other common law jurisdictions, where family law cases are open to the media, even subject to certain restrictions.