Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 2:

In page 5, between lines 26 and 27, to insert the following:“Amendment of section 29 of Principal Act

5. Section 29 of the Principal Act is amended by the insertion of the following new subsection after subsection (4):

“(4A) In subsection (5), ‘relevant court documents’, in relation to any proceedings referred to in that subsection--

(a) subject to paragraph (b), means--

(i) any notice of application or other originating document in the proceedings,

(ii) any pleading, report and other document (including the terms of settlement, if any) produced to or lodged with the court, or included in any book of pleadings or reports, in the course of the proceedings, and

(iii) any order made or judgment delivered by the court in the proceedings,

(b) does not include any document the contents of which are expressed to be without prejudice or in terms having a like effect.”.”.

I welcome the Minister for Children and Youth Affairs, Deputy James Reilly, to the House. I have tabled this amendment which is, admittedly, extraneous to the specific purposes of the Bill but this is an ideal opportunity to address a legal anomaly in cases of child care proceedings brought to my attention by the child care law reporting project and by FLAC. The child care law reporting project, under the direction of Dr. Carol Coulter, has a statutory remit under section 3 of the Child Care (Amendment) Act 2007 and in accordance with the 2012 regulations made under the Act to promote transparency and accountability in child care proceedings in the courts, to publish reports and to provide information to the public on the operation of the child care system. In the past hour, the Taoiseach acknowledged in the Dáil the significant work of the child care law reporting project and that it has shown us the significant need for prevention and intervention. This is very much to the heart of the amendment I am proposing.

There has long been a sense, particularly among parties to such proceedings, of a lack of certainty and consistency around the administration of child care proceedings. As such, the reform of the in camerarule that enabled the child care law reporting project to attend proceedings and carry out its reporting function was widely welcomed. It has lifted the veil of secrecy around how child care law is administered, it has promoted the public confidence in our child care system and it has assisted in shaping law reform and policy-making into the future. The shift from a blanket in camera rule to protect the privacy of the children and parties relevant to the proceedings to allowing for a reasonable public scrutiny and reporting, subject to strict conditions to protect identities, is very much in line with the direction taken by courts in the UK and the jurisprudence of the European Court of Human Rights.

As it stands, section 29 of the Child Care Act 1991, as amended by section 3 of the Child Care (Amendment) Act 2007, inserted a statutory framework for reporting on child care proceedings.It creates a presumption that members of the child care law reporting project may attend child care proceedings and access relevant court documents. However, the court can limit this right in individual cases, for example, to prevent the identification of children. In this regard, I must further note that the child care law reporting project operates a strict protocol to ensure the anonymity of any children, parent, guardian or foster parent who is the subject of or party to the proceedings being reported.

The anomaly my amendment seeks to remedy has come to the fore in the recent decision of District Court President, Judge Rosemary Horgan, not to provide the child care law reporting project with a copy of a social work report submitted in evidence as part of a child care case. It is standard practice for social workers, guardians ad litemand other expert witnesses to swear their reports at the beginning of their evidence. In many cases, these reports will have already been read by the judge and the parties to the proceedings, so frequently such witnesses will not be taken through these reports in any detail. This is particularly true when applications are not being actively opposed. Without the content of the report being read aloud or sight of these reports parallel to the proceedings, it is difficult to fully understand the issues arising and at play in a case. It can, therefore, also be difficult to report accurately and holistically on the case. As such, the current legislative arrangement frustrates the child care law reporting project from carrying out its reasonable public scrutiny function.

Although Judge Horgan's decision has yet to be published on the courts.iewebsite for verification, her rationale was not necessarily that social work, guardian ad litemand expert reports should not be regarded as relevant court documents in child care proceedings but rather that the court is precluded from doing so since the legislation to amend the statutory regime for reporting on family law proceedings, conferring a presumptive right to access relevant documents, was not actively extended to child care proceedings. My amendment seeks to do this through a similar amendment as made by section 31 of the Civil Law (Miscellaneous Provisions) Act 2008 to section 40 of the Civil Liability and Courts Act 2004. The important and stringently adhered to safeguard whereby the child or parties to the proceedings must not be identified is not affected or undermined in any way by my amendment. Nor is the safeguard whereby the court directs that relevant court documents be restricted due to the specific circumstances of a particular case.

The child care law reporting project does not seek to copy any relevant court documents, does not seek to remove them from court buildings and should return them to such person as may have provided them without delay once inspected. These practices can be incorporated into court directions, further to section 29(5), whenever necessary. The child care law reporting project has provided us with invaluable insights. As access to social work reports is allowed in other cases, will there be consistency in the law regarding these specific reports? It will ensure when we are legislating and making policy decisions that they are based on facts, not on partial information coming from cases.