Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 1:

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.”.”.

For the record, Senator Wilson will be seconding the amendment. I welcome the Minister to the House once again.On the amendment, not only must justice be done but it must be seen to be done. The principle of ensuring that justice is administered in public, including law proceedings subject to protecting the anonymity of the parties, has been accepted by successive Governments, for example, in the Civil Liability and Courts Act 2004, as amended, the Child Care (Amendment) Act 2007 and the Courts and Civil Law (Miscellaneous Provisions) Act 2013. The first two of these Acts permitted academic institutions and other bodies named in regulations, including persons engaged in child care law research, to report on family law proceedings while the latter opened up family courts to the media for the first time. Similar measures have been undertaken in England and Wales, which, like Ireland, previously had a highly restrictive regime.

The Civil Liability and Courts Act 2004 was amended to clarify that relevant documents, which is the crux of the issue we are discussing, included all documents generated in the course of proceedings in order to ensure that reporting could be comprehensive and accurate. No such amendment exists clarifying the meaning of relevant court documents relating to the child care proceedings in the 2007 Act and no statutory definition of this term exists.

In child care proceedings, reports are routinely produced for court by social workers, guardians ad litemand other professionals detailing and analysing any risk to a child thought to exist. These are sworn into evidence and are normally then outlined orally to the court and the author of the report is subject to cross-examination in contested proceedings. However, where the proceedings are not contested, the judge may state that he or she has read the report and does not need to hear evidence, and then makes the order sought. Without sight of the report, the child care law reporting project has no way of knowing the basis for the order - how the threshold outlined in the Act has been applied - and therefore cannot report on this or fulfil its statutory remit "to provide information which will assist in the better operation of this Act". It is interesting that the Civil Liability and Courts Act 2004, which first modified the in camerarule in family law, did not have any such purpose of assisting in the better operation of any Act.

It is difficult to accept that the Oireachtas, when opening up the child care courts to reporting, through the Child Care (Amendment) Act 2007, did not intend that a person carrying out that task, including providing information that would assist in the better operation of this Act, would have access to the same information as the court and all other participants. Indeed, counsel for the child care law reporting project argued, in its Circuit Court appeal submission against the decision of the District Court president, Her Honour Judge Rosemary Horgan, not to provide the child care law reporting project with a copy of a social work report which was submitted in evidence as part of a child care case, that the reason the definition was not included in the 2007 Act was that it was unnecessary as an earlier High Court judgment had ruled it was permissible for child care proceedings to be reported provided that there was judicial permission while it had not been possible to report private law proceedings.

It is also a feature of European law that more, not less, transparency is required of proceedings where the State is involved in curtailing the rights of citizens, in this case, family rights. The European Court of Human Rights examined the in camerarule in two cases: B and P v. United Kingdom, involving private family law in which two parents were in dispute; and Moser v. Austria, involving public family law and taking a child into state care. Distinguishing the latter case from the former, the court stated it "considers that in this sphere, the reasons for excluding a case from public scrutiny must be subject to careful examination". The court ruled against Austria's blanket ban on reporting child care proceedings.

Granting reporters access to documents along with access to court proceedings has also been considered in the United Kingdom. There was a recent judgment in the High Court of England and Wales family division, on 19 October this year, allowing a journalist access to documents in a child care case, Tickle v. Council of the Borough of North Tyneside and Ors. After ruling in favour of allowing a journalist report on a specific case, including interviewing the mother in the case, and having laid down conditions to prevent the identification of the children or their parents, the judgment states, "any party to the current or previous proceedings relating to the children may disclose to Louise Tickle [the journalist] documents produced for the purposes of those proceedings, for the specific purpose of informing her journalism, and provided that those documents themselves may not be published in full or further distributed by her". I would be completely happy for such non-publication or distribution of documents conditions to be inserted into any amendment in this regard. The judge referred on several occasions in his judgment to finding an appropriate balance between the public interest in the media being able to report child care proceedings and the interest of privacy of those whose lives are intimately involved.

No good reason has been advanced for preventing the child care law reporting project or any other body permitted under the relevant regulations from having access to documents in a broader context where the content of these documents is usually discussed in the court in their presence and, subsequently, reported upon by them. The only purpose in a permitted class of person having sight of these documents, on request and subject to any directions or restrictions the court may impose, is to ensure that their research and reports are comprehensive and accurate, and in the specific case of the child care law reporting project, that they can provide information which will assist in the better operation of this Act. In my view, the current situation contravenes the spirit of the legislation and the intention of the Oireachtas to bring transparency to child care proceedings.

I ask that the Minister give my amendment his positive consideration in the interests of transparency and accountability in child care proceedings in the courts, published report and the information provided to the public on the operation of the child care system. As I stated on Committee Stage, the child care law reporting project has provided us invaluable reports but without access to these documents when a case is uncontested, we are not able to satisfy the obligation that the Oireachtas laid down that they must provide information which will assist in the better operation of the Act. Thus, I commend my amendment to the House.