From The Irish Times, Tuesday 6 November Nov 2012
Research project to see childcare cases in courts reported on for first time
Mary Minihan
Childcare cases in the courts will be reported on for the first time as part of a new research project launched by Minister for Children Frances Fitzgerald yesterday.
Ms Fitzgerald said an independent study, to be undertaken by the former legal affairs editor of The Irish Times, Carol Coulter, represented a “new beginning” in relation to such cases.
“In the public arena to date there hasn’t been a great amount of information available because obviously these cases are held in private, and have been held in private, for good reasons, but of course there is a difference between privacy and secrecy,” Ms Fitzgerald said.
The Minister will give Dr Coulter permission, under the Child Care (Amendment) Act 2007, to attend and report on childcare proceedings. Dr Coulter will also collect data that could inform future policy.
Minister for Justice Alan Shatter has promised proposed legislation to amend the in-camera rule within weeks.
Dr Coulter will attend a representative selection of cases in the district courts. Yesterday she said she was committed to the administration of justice in public. “If we are to have confidence in our justice system it must be administered in public so that people know what is happening in our courts,” she said.
Privacy
Dr Coulter said it was possible to report on such cases while preserving the anonymity of the parties involved and of vulnerable people. “We must, as the Minister said, distinguish between privacy and secrecy. We can protect people’s privacy without maintaining secrecy. This project will be doing that.”
Short reports of actual cases will be “anonymised” and published on a dedicated website, while in-depth data will be collected to establish patterns and highlight areas of law that may need further attention.
The project will be supported by funding from Atlantic Philanthropies, founded by US billionaire Chuck Feeney, and the One Foundation, co-founded by Ryanair heir Declan Ryan and Deirdre Mortell, with “infrastructural support” from Ms Fitzgerald’s department.
Among those sitting on the project’s expert advisory board will be former Supreme Court judge Catherine McGuinness and Geoffrey Shannon, the Government rapporteur on child protection, who attended the launch in Dublin yesterday.
Judge McGuinness said it was right that childcare proceedings should be reported on, “although of course one has to maintain the privacy of the families and particularly the children that are involved”.
Mr Shannon welcomed the prospect of “home-based” research which could inform future legislation. “Where there is secrecy there is suspicion,” he added.
Childcare cases are heard mainly in the district courts and involve applications by the HSE for orders to protect children, including supervision orders, emergency and interim care orders and full care orders.
The cases are heard in-camera in order to protect the privacy of the families and written judgments rarely emerge from the District Court.
Dr Coulter ran a 12-month Courts Service pilot project on family law reporting in 2006/2007.
Her report at the end of that project contained recommendations for further reporting on family law and reform of the family law system.
Text of the speech given by Judge Rosemary Horgan, President of the District Court, at the launch of The Child Care Law Reporting Project Website on Thursday April 4th 2013
Ladies and Gentlemen – Colleagues,
I am very glad to have been invited here this morning to speak at the launch of the website of the independent Child Care Law Reporting & Research Project undertaken by Dr Carol Coulter. This website will provide important information to lawyers and the public and will illuminate the workings of the courts in child care cases.
The Irish Legal system requires justice to be administered in public. However, certain types of cases, for example family and child care proceedings, are held in camera.
In Camera hearings are an important exception to the requirement that justice should be administered in public. In these types of proceedings, only those persons who are directly involved with the case are permitted to be present in court. Among the list of persons who are permitted to be present are the named parties, their legal representatives, witnesses, and experts. Those who are excluded from such proceedings include friends or other family members of either party, the media, and the general public.
The in camera rule was designed to strike a balance between the parties’ right to the protection of their intimate private and family life and the public’s right to witness the administration of justice. Many other jurisdictions have also used the in camera rule to the same end. Nevertheless, the in camera rule has often given rise to criticism regarding the lack of knowledge available concerning these areas of law. What actually happens in these cases is hidden from public knowledge unless the information comes into the public domain through anonymised professional law reports or specialist publications.
There is a growing demand worldwide to “open up” family law and childcare proceedings, with many jurisdictions now permitting limited reporting of certain proceedings. In Ireland, the call to “open up” these types of cases is coming from practitioners, academics, ombuds, professional bodies, policy makers, judges, and the general public.
The Civil Liability and Courts Act 2004 (s.40 (3) and Regulations 2005 (S.I 337 of 2005) introduced a procedure for the anonymised reporting of in camera cases by a solicitor or barrister and certain other approved categorises of persons.
In 2006, the Courts Service introduced the Family Law Reporting Project on a pilot basis. This Project was also piloted by Dr Coulter and the goal of the Pilot Project was to provide much needed non identifying information on how family law matters were dealt with in the District, Circuit and High Court Family Law Courts between the years 2007 and 2009. Anonymised reports of individual cases provided a ‘snapshot’ of what happened in the court room and these reports were published in booklets under the title “Family Law Matters”. This publication was also made available on the Courts website. The snapshot reports published through the project were picked up by the general media and widely reported. Dr Coulter’s interim and final reports also raised several issues in respect of the family law system and also made policy recommendations. The concluding Report on the Project to the Board of Court Services supported Dr. Coulter’s recommendations that restrictions on reporting family law cases should be reduced to the greatest extent possible, commensurate with the need to protect the identity of the parties to any proceedings or any child to which proceedings may relate. These recommendations may soon become a reality on the passing of the Courts Bill, 2013.
The Child Law Reporting & Research Project website will also contain factual reports in respect of a representative sample of child law cases coming before the District courts over the next five years. The reports will respect the privacy of the individual children and families involved while providing the public with factual information as to what actually happens behind the closed doors of the Courts. Dr Coulter also proposes to have interim and final reports which will no doubt also highlight any systemic and policy issues on areas of the law, practices and procedure which she feels are important to address.
The demand for more information on the application of child law is not surprising – indeed it is welcome. After all, such matters are central to some of the most important and talked about aspects of Irish society, including
- the supports provided for vulnerable families,
- the key principles guiding the child care legislation
- the circumstances in which child care and supervision order proceedings are brought
- the care arrangements for children who come into State care through voluntary care arrangements or under a Care Order;
- the oversight of vulnerable children who remain at home with a parent under a Supervision Order;
- how litigants (including vulnerable litigants) are legally represented and otherwise supported in proceedings brought by the HSE
- how the rules of evidence are applied
- how the ‘best interest’ principle is applied
- how child neglect is identified and remediated,
- how the physical or emotional abuse of children is addressed,
- how family reunification can be achieved
- how children with mental health issues are protected,
- how access is arranged for children in care
- how children and young people participate in decision making in these cases
- how ‘after care’ support is organised
The area of public child law is certainly in need of greater transparency. The issue at the core of public childcare cases is whether the State should remove the child from their parents’ care. The rights of parents and children whether under the Constitution or under international or national legal provisions must be respected and taken into consideration. Given the gravity of such cases, a greater degree of information outlining the role, practices, and procedures adopted by the courts in such instances is vital. Furthermore, it is important for people to know in what contexts certain orders are made — not every case results in a child entering into the custody of the State. The court has a range of measures that they can apply depending on the particulars of each case.
While the preservation of the anonymity of these parties is still vitally important — particularly because the cases deal with sensitive information regarding children — the production of general reports on this area of law will help dispel some of the misapprehensions surrounding the application of child care law. This will enable the public to have a greater understanding of the vast range of issues presented in these cases and the methods which the courts use to make their decisions.
The many elements of this new site, and the promise of future expansion, will go a long way to filling a void of information so that everybody concerned with child welfare, including those who come before the courts, legislators, policy makers, commentators, and the general public, can address these issues with the knowledge of the realities of the various situations, rather than on the basis of conjecture.
This Child Care Law Reporting & Research project and initiative, spearheaded by Dr Carol Coulter, has the potential to allow the public understand the complexity and delicacy of the task the courts undertake in the protection of children: It may well dispel myths, fears and misunderstandings created by a lack of information. It will also provide information and material in plain English and in a manner which is easy to understand and easy to access. I have no doubt that Dr Coulter will bring independent analysis to bear in the area of child care as she did in the area of family law.
I wholeheartedly welcome the project and can assure you of the on-going co-operation of the Judges of the District Court and of the Courts Service in your endeavours.
Thank You
