Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Cuirim fáilte roimh an Aire. Ach an oiread le Seanadóirí eile, táimid buíoch dó as ucht an Bille seo a thabhairt isteach sa Seanad. Tá Sinn Féin ag tacú leis an reachtaíocht seo mar feicimid cé go bhfuil an Bille gearr, tá sé iontach tábhachtach - cosúil liom féin. Tuigimid freisin go bhfuil gá ann bheith cúramach i gcuid de na réimsí lena mbaineann sé. I welcome the Minister to the House and thank him for bringing this Bill to the Seanad in the first place. It is very important that he gives the House the recognition it deserves. Although the legislation is slim it is of considerable value. My party has some concerns in regard to the need for safeguards, as was outlined by other Senators, but we are broadly supportive of this legislation and will vote in its favour.
The Bill has two primary purposes, both of which we support. The former is to reduce the application of the in camera rule in order to allow for reporting by the media of the facts in cases of child and family law, provided identities are respected. This is an important change, one which can increase transparency and, we hope, public faith in the judicial system. I will return to this point presently

The latter concern is to increase the monetary jurisdiction of the District Court and the Circuit Court, which should allow for a reduction in the fees being charged to clients and we hope, the costs of litigation overall, as in the long term this may ease pressure on the higher courts. We will also support this part of the legislation.

The Minister will be very familiar with the area of child law. Indeed, he wrote the book on it, quite literally. It is an area which requires great care and sensitivity and the same can be said about family law. The key consideration in any such judicial proceedings involving minors should be that the identity of the minor is protected. Failure to ensure that this protection is vindicated can lead to very considerable difficulties, pressures, stresses and to adverse treatment of vulnerable young people, which clearly needs to be avoided. Such protections need to be preserved. However, the application of the in camerarule has been unduly problematic and has limited the level of transparency in the system to the point where the faith of ordinary citizens in the system has become a serious issue, perhaps with some justification.

The role of the in camerarule most recently came into focus in the context of the child death review report. In August 2012, Dr. Aisling Parkes of University College Cork noted that the authors of that report pointed out that this rule should not be taken to mean that the operation and actions of the court should be kept secret. She stated, "...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." There was particular concern about the manner in which the HSE was using the in camerarule to frustrate inquiries about children who had died in its care. It is believed that the HSE interpreted this to mean the files could not even be made available to the then Minister of State with responsibility for children and youth affairs, Deputy Barry Andrews, and to this review group. The author of the report, the esteemed child law expert Dr. Geoffrey Shannon, noted that the lack of co-operation from the HSE had delayed that report. Given the seriousness of these matters and the less than satisfactory role of the HSE in several of these cases involving children, such as in HSE v. McAnespie, this is very regrettable.

The difficulty that has been created vis-à-vischild law is that very little is known about what happens behind the closed doors of the courtroom in child care proceedings. Many of the key decisions are taken in lower courts and the number of written judgments is, therefore, extremely limited. A huge number of cases go through these courts, with very serious ramifications. For example, in 2011, 972 supervision orders were granted at District Court level and 2,287 care orders, including interim care orders, were granted. There were 1,064 child care order appeals made from the District Court to the Circuit Court, with 840 orders made. This leads to a lack of consistency across various courts and a certain degree of mystery surrounds this area of law, except to a small number of professionals who have regular experience of District Court child care proceedings. In this context, Dr. Parkes noted the following:

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.

Likewise, with family law, while the lack of consistency is less of an issue, there remains a concern about the transparency of the system. The foreword to the report of the Family Law Reporting Project Committee to the board of the Courts Service notes that:

Increased awareness of what goes on in family law courts was seen by the Committee as a crucial prerequisite for a greater level of trust in the judicial determination of family law disputes. From its consultation process, the Committee was left in no doubt that past restrictions on the reporting of family law cases has led to significant levels of suspicion and resentment, by men in particular, and a belief that hearings ?behind closed doors? meant that perceived injustices ran on unchecked by any requirement of transparency.

It is clear that this is a very necessary and positive step. The example of how cases involving sexual offences are reported, in the way that identities are protected but the facts, in so far as possible, are recorded, pays testament to the value of this principle. However, the legislation is somewhat light on detail, particularly in terms of safeguards. There ought to be greater safeguards in place with regard to the reporters who will be permitted to attend such proceedings and the manner in which they will be able to report. While the safeguards in sections 5 and 8 are welcome and comprehensive, I note that the meaning of a bona fide representative of the press is not defined in this Bill, nor does it set out the terms under which a member of the press may attend a family or child care case. I believe that "bona fide" should be defined and that members of the press who will be in attendance should be subject to some form of scrutiny. The Minister should clarify his rationale for not making this clear.

The change to the monetary jurisdiction of the District Court and Circuit Court is a positive step, particularly given the fact that two decades have passed since the review. Anything that leads to a reduction in fees, thus reducing the costs for ordinary families and businesses in taking cases, is welcome and indeed, we hope that the knock-on effect of this will be to reduce the costs for the State over the longer term.

I have one minor query on this section, however. I note that the Bill repeals sections 13 to 18 of the Courts and Court Officers Act 2002, which was never commenced. Those sections had proposed to change the monetary jurisdictions to ¤20,000 and ¤100,000 for the District Court and Circuit Court, respectively. This legislation increases the jurisdiction to ¤15,000 and ¤75,000, respectively. The Minister might clarify the rationale for this and explain why he has preferred this more modest increase to that contained in the 2002 Act.

I also note the comments of the Law Society, which is concerned that the District Court and more particularly, the Circuit Court, will not have enough resources to deal with the pressure which will inevitably result from the dramatically increased workload. There may be a need for more judges and more court staff to avoid delays, given that there is already too much pressure on the system. The society has called on the Minister to provide the resources necessary to ensure that the full benefits of this legislation can be felt. However, queries and concerns aside, we welcome this Bill, which will increase transparency and accountability within the judicial system.