AMONGST THE many concerns raised in the recent independent child death review report was the operation of the in-camera rule in child law proceedings. Although childcare proceedings in Ireland are known as “public” family law proceedings since they involve the State, in practice they are always heard in camera (in private) in order to protect the identity of the children, young people and parents involved. Furthermore, there are no written judgments available from the lower courts where most of these decisions are made, contributing to an overall lack of transparency within the childcare proceedings process and leaving little room for consistency amongst the lower courts.
This was a particular issue of concern mentioned in the child death review report. The authors of the report pointed out that this rule should not be taken to mean that the operation and actions of the court should be kept secret. Indeed, the report claims that allowing this veil of secrecy to exist can only serve to undermine public confidence in the childcare system, which has already had huge questions marks raised concerning its operation.
As Judge Conal Gibbons pointed out, the District Court, in dealing with such cases, has the power to give “a life sentence in effect, because the consequences of our decisions have a lifelong impact on those whom we seek to protect and care for”. However, despite this far-reaching power, and in contrast to the public nature of criminal law cases, the proceedings are held in camera. While this is necessary to protect the privacy of the individuals concerned, the broad application of the rule arguably extends far beyond this objective and excludes the possibility of transparency and accountability in the system.
More generally, very little is known about what happens behind the closed doors of the courtroom in childcare proceedings. For example, there is no information available indicating how much weight the judge attaches to expert/social reports or to what extent the child has a voice in such proceedings. Furthermore, there is little reliable statistical data available relating to such cases. Indeed, the appropriateness of the primarily adversarial nature of these proceedings is questionable and some would advocate a more inquisitorial process where the best interests of the child are at issue.
To these issues one can add a range of others about which little is known. How appropriate are the physical facilities that are used for these proceedings, and how does this affect the general atmosphere and matters such as child participation? How does practice vary from court to court? Do all judges give detailed reasons and explanations for their decisions – to the parents, the child(ren), or the HSE? Is delay a major difficulty or are proceedings generally dealt with on an appropriate timescale? All of these fundamental issues are currently a source of mystery to all but a small number of professionals who have regular experience of District Court childcare proceedings.
In light of this lack of knowledge, the Child Care Proceedings Research Group has been established by academics from the Faculty of Law and School of Applied Social Studies, UCC. Over the past year, the group has been undertaking intensive empirical research including interviews and focus groups with key players working in the childcare proceedings process. This research is being conducted with a view to uncovering what happens in practice once childcare cases are taken to court by the HSE/the Garda.
The research study covers a number of themes, including the various professional perspectives on the model adopted in the District Court; the extent to which children have a voice in these cases; the degree to which parents are represented; the suitability of the facilities used; and finally, the legal framework used.
This research is still at a relatively early stage, but to date, it has had the support and direct involvement of many key players in the childcare proceedings system that have been approached, including social workers, guardians ad litem, solicitors and members of the judiciary. This research is being compiled and analysed and will be made public over the coming year.
Dr Aisling Parkes is a lecturer in law in the Child Care Proceedings Research Group, UCC