Dr. Kenneth Burns:

I thank the committee for the invitation to address it today. I plan to focus on the impact of the in camera rule on hearing from children and families, the need for consistency between courts, and articulating a clear model for childcare proceedings. My knowledge of these issues is based on being a principal investigator of two research projects, one on childcare proceedings in the District Court and the other on voluntary care arrangements, as co-editor of a book examining child welfare removals in eight countries, and as an educator and a former front-line practitioner in child protection and welfare.

I endorse previous comments made to the committee by Dr. Conor O'Mahony from UCC and Dr. Carol Coulter and Dr. Maria Corbett from the Child Care Law Reporting Project. I am therefore intentionally not addressing themes I feel are important but were previously addressed by them.

I will now address updating the in camerarule, and the voices of parents, children and young people. Through our research and discussions with experienced judges and legal practitioners, it has become clear that the in camerarule is poorly defined in Irish law, despite recent clarifying amendments in 2007 and 2013. The precise parameters of what is prohibited are not set out and whether any particular conversation about a set of in cameraproceedings would breach the rule largely comes down to the subjective opinion of individual judges. These amendments focus largely on permissions for attendance in, and the reporting of, these proceedings and do not appear to cover research with participants outside of the proceedings.

In essence, any person involved in in camera proceedings in the field of child protection, private family law or elsewhere risks being held in contempt of court every time he or she discusses the proceedings with anyone other than his or her legal representative or the other parties to the proceedings. The law neither clearly allows nor prohibits interviews with children, young people and their parents. In the absence of clarity, researchers, children, young people and parents are at risk of being held in contempt of court.

This is not just an issue of academic concern. We should be proud of recent Irish legal, constitutional and practice reforms which have sought to promote the participation of children, young people and parents, ascertain their views and facilitate their greater involvement in decision-making. We now have a considerable amount of quality Irish research on the operation of childcare proceedings. However, the specific issue I have documented with the in camera rule has had a chilling effect on research, thereby silencing the voices of children, young people and parents who are impacted on most by these proceedings. Further to observations made previously at this committee, this is further evidence that there is a significant gap in implementation which is frustrating the realisation of the child’s right to be heard.

I refer to the lack of consistency between courts. A key finding of our study of childcare proceedings in the District Court, in the feedback from front-line practitioners during children’s rights and child protection training in a five-country EU project that we ran and the current data collection in our study of voluntary care in Ireland is that there is professional frustration and concern about a lack of consistency between courts on how childcare proceedings should be conducted. This lack of consistency and the significant differences between court culture and practice are problematic for several reasons. First, all participants should expect a degree of predictability in court proceedings. Second, citizens participating in court proceedings which involve State intervention in family life should not experience significantly different models of practice, depending on their address. Third, there is some concern that in courts where an adversarial approach is dominant a focus on the welfare of the child can be lost. There is also concern that this model is not conducive to facilitating children’s participation and can lead to significant delays in decision-making and significant extra court time for professionals. Clearly, this issue is inextricably linked with other reform items, including a lack of specialist family courts and judges; limited judicial and interdisciplinary professional training; the absence of a judicial council; the need for investment to address judges' high caseloads; and suitable child-friendly and family-friendly court facilities.

I wish to speak about a clear model for childcare proceedings. There is a pressing need for the Oireachtas to articulate a clear vision of what the orientation of these proceedings ought to be through the Child Care Act 1991 review process and the establishment of specialist family courts. The revised Act should be detailed in describing the model to reduce discretion in implementation and promote consistency. Lessons from other jurisdictions illustrate that there is no single ideal model that could be adopted ready-made from the shelf. Caution will need to be exercised to avoid unintended consequences such as those discovered when time limits for child protection proceedings were introduced in England and Wales. However, there is clear evidence in other countries of significant reform of their court and court-like decision-making models for child welfare removal. When Ireland’s childcare proceedings are compared with reforms in other countries, the Irish system appears dated and has changed little, despite wider changes to the child protection system and legal and constitutional developments. Difficult decisions will have to be made and significant investment is required. Change may be hard, but the research and practice level evidence now available makes it clear that reform is required.

Whatever model is proposed should attend to several questions. Is the new model child-friendly and parent-friendly, maximising participation and amplifying the proceedings' focus on the welfare of the child? Are decision-makers sufficiently trained and resourced to make timely and evidence-informed decisions in the best interests of children? What principles should underpin the revised model and what practical changes are required to implement them? What type of implementation strategy is required to ensure there will be no significant deviations in the model across the country?

Reform discussions will need to examine whether decision-makers with specialist knowledge who are not solely judges should be included; the merits of pre-proceeding processes; what child-friendly and parent-friendly non-court-like buildings and rooms would look like; whether time limits on proceedings are necessary to ensure timely decisions; consistency in the implementation of thresholds for care orders; protocols for referrals to mediation or similar alternative dispute resolution processes to address an impasse; articulate in detail the principles underpinning the model and codify them in law; adopting child-friendly justice principles and practices; exploring how the testing of evidence could be undertaken in lieu of adversarial cross-examination; consideration of a wide range of methods to facilitate the direct and indirect participation of children; and the establishment of specialist courts.

Based on our research, there is consensus that reform is required in Ireland, but there is less consensus on the type of reforms that should be implemented. An independent, focused consultation process such as this hearing and others, with stakeholders from civil society groups, experts by experience and representatives of social work, legal practice, professional associations, the Courts Service and relevant State agencies, could go some way to informing decisions on these reforms. It is clear that children and parents cannot wait for another decade before meaningful reforms are decided on and implemented.