Relaxation of the in camera rule in family law cases is a small first step towards transparency, writes Carol Coulter, Legal Affairs Correspondent
An attempt to modify the in camera rule preventing any reporting of family law cases first surfaced in 1999, in the Sixth Report of the Working Group on a Courts Commission, chaired by Mrs Justice Susan Denham. This recommended that a specialist reporter compile statistics and prepare reports of judgments, especially in the Circuit Court, where the majority of divorces and judicial separations are heard.
The Courts Service duly appointed a qualified barrister to do this on a pilot basis. However, it also sought two counsel opinions of the legality of the move.
They were both unequivocal - under the Judicial Separation Act of 1989 family law cases must be heard "otherwise than in public", allowing for no judicial discretion. So the scheme had to be abandoned, and family law cases continued to be heard behind tightly closed doors.
Nonetheless, anecdotes abounded of apparent miscarriages of justice, of capricious decisions, of inconsistency between different judges, of alleged bias towards either men or women on behalf of certain judges, of inconsiderate behaviour and just plain rudeness on behalf of others. Most distressingly, it was sometimes claimed that the interests of the children caught up in this litigation were not always to the fore.
In the absence of any reporting, it was, and remains, impossible to establish the truth, or discern patterns in judgments.
The complaints did filter through to the politicians, and the most recent Programme for Government contained a pledge to reform the in camera rule in family law cases.
However, this proposal was not universally welcomed. There are many involved in the system who are uneasy about, if not downright opposed to, reporting. They are particularly concerned at access to family proceedings for the media.
These include those who specialise in family law. It is easy to accuse them of wanting to keep their own alleged incompetence or belligerence hidden from view, but the reality is that most of their clients, already traumatised by the marriage break-up, would dread the thought of the details of their family affairs being sensationalised in the media. This would be particularly traumatic for the children. Many family lawyers expressed doubts that in a country as small as Ireland the identities of the parties could be sufficiently disguised so as to prevent their identification. They argued, with obvious success, that the regime that operates in rape cases, where the identity of the victim is not revealed, and that of the perpetrator also withheld in order to protect the victim, would not be enough.
It quickly became clear, therefore, that the Minister for Justice was going to bring forward proposals that would fall far short of allowing the administration of this area of justice to be in public. In the Civil Liability and Courts Bill the only people mentioned who could attend family law proceedings were solicitors and barristers, in order to report, and this has now been expanded to include researchers and specialists working in the area.
This is certainly an improvement, and will allow family mediators to advise people of what to expect from the courts. In time we will also have reports on statistics and trends in family law, particularly relating to decisions governing custody of and access to children, the disposal of assets, maintenance and residence in the family home. These statistics and reports will either vindicate or scotch the many rumours that abound concerning the operation of our family law courts. But there is more to the administration of justice than decisions and statistics.
The conduct of the proceedings, from the attitude of the judge to the litigants to the way in which their legal representatives deal with the parties, and including the use of expert witnesses and the weight given to their expertise, all contribute to the outcome of the case and to the wellbeing of the person who has just gone through what is probably the most traumatic experience of his or her life.
These cannot be conveyed by statistics, but only by some form of contemporaneous reporting, such as is normally provided by the media.