Analysis: The proposed change in the rules concerning the reporting of family law cases have been sought for some time, writes Carol Coulter, Legal Affairs Correspondent.
As the volume of litigation concerning family law has increased, so has the clamour of appeals for changes in the law allowing the publication of what happens in family courts.
The Irish Constitution guarantees the administration of justice in public, except for "special and limited cases", to be prescribed by law. This has been applied in rape and sexual assault cases as well as family law, but in these cases the form the rule takes means the exclusion of the general public from the court-room, and journalists are only permitted to be there on the basis that the identity of the victim is protected in the report.
However, under the Judicial Separation Act of 1989 the case must be heard "otherwise than in public", allowing for no judicial discretion. This continued into the Family Law (Divorce) Act. When the Courts Service attempted to introduce a limited form of reporting of family law cases, it had to abandon the scheme following opinion from two leading senior counsel that this could not be done under the current law.
Despite its unsuccessful outcome, the decision of the Courts Service reflected a growing conviction at the most senior level in the courts that the present highly restrictive system needed to be changed. For example, four years ago High Court judge Mr Justice Carney said in a paper to the Trinity College Law School: "It seems to me that the complete absence of reporting of family law cases is damaging to our understanding of the nature of our society." He went on to point out that his experience of presiding over serious rape and sexual assault cases was that the media reported them responsibly.
Many practitioners also came to the view that the non-reporting of family law cases left both them and their clients in the dark about what to expect, as no knowledge was being built up of judgments made in this area. One of the pioneers of family law, Mr Alan Shatter, told the Working Group on a Courts Commission, that in family law proceedings "the affected parties could be engaged in a game of judicial roulette where the outcome of the case could be affected by which judge hears the case rather than be affected by a previous set of precedents."
Other experts, notably those involved in child welfare, have also expressed their concern. At a conference of family lawyers on the in camera rule in 2000, a child psychiatrist, Dr Gerry Byrne, pointed out that reports obtained in the course of family law proceedings could not be made available to anyone concerned with the welfare of the child if the case was settled and no order based on the report was made.
He gave an example of one case where he was preparing to give evidence, recommending that the 10-year-old child be in the custody of his father. However, the case was settled, with the mother gaining sole custody.
"I was aghast," he told the conference. "The mother suffered from alcohol dependency syndrome and the 10-year-old son used to go into her room at night to check whether she was still breathing." But, because the case was settled, and everything related to a family law case is secret, his report could not go to any body with responsibility for the child's welfare.
In the situation where there are no media reports of family law cases, and where the reports from the small number of cases that go to the High and Supreme Court have only limited circulation in the Law Reports, anecdote inevitably reigns.
Individuals who have had personal experience of the family courts and lawyers specialising in the area all have stories to tell, some of them horrifying. Men's groups in particular have been vociferous in their claims that the family courts routinely discriminate against men, depriving them of custody and access to their children, and imposing unreasonable demands on them to support their former spouses. Certainly this reporter has been told of a number of individual decisions which, on the face of it, appear unfair and unjustifiable.
Women have also reported frequent instances of unfairness or apparent judicial prejudice, where they have been asked why they were working rather than at home looking after their children, or where they have been forced to return to court repeatedly seeking the payment of previously agreed maintenance for themselves and their children, often to no avail.
In the absence of systematic reporting of actual cases, and the compilation of statistics on judicial rulings, rumours abound and anecdotes rule.
The proposals from Mr McDowell to allow reporting of family law cases, ranging from separation and divorce to maintenance, custody and access disputes, and including cases involving domestic violence, will lift the veil of secrecy on this area of the law. It is now a major part of Irish life, and must be allowed to be discussed and evaluated.