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Column: Decisions in the family courts will be open to scrutiny now the veil has been lifted

Until now, family court proceedings have been heard ‘in camera’ but new legislation will bring more transparency – and more confidence – to the system, writes solicitor Emma Heron.

Emma Heron

THE COURTS BILL 2013, as published on the 19 March 2013, proposes allowing bona fide representatives of the press access to family courts. Up until now, family proceedings have been, almost without exception, heard ‘in camera’, ie in private with no access allowed to the public, media or law reporters. So why are these changes being proposed?

In a nutshell, the quest for greater transparency is behind this Bill. For years, many have debated the need for transparency in family law and child care proceedings versus the need for privacy for persons involved in such proceedings. There has, in effect, been a veil of secrecy surrounding family proceedings. Removing this veil will mean that decisions of the courts will be open to scrutiny; it will provide a safeguard for fair practice; it will lead to more consistent judicial decisions nationally; and will allow the public, judiciary and legal professionals to know the way the courts are dealing with family law issues.

Media access to family courts

Media access is proposed to be permitted to court hearings dealing with family law and childcare proceedings, such as divorce, separation, domestic violence, maintenance, custody, access and proceedings where the State intervenes to take a child into care.

However, the media can be prevented from attending hearings. The court will be empowered to both exclude representatives of the press for all or part of the hearing and to impose publishing and/or reporting restrictions when it is necessary to preserve the anonymity of a party to the proceedings, including any child to whom the proceedings relate and/or witnesses at the hearing, such as social workers, expert witnesses; if the nature or circumstances of the case require it; or it is necessary in the interests of justice.

In considering any such exclusion, the court will be required to balance the promotion of public confidence in the administration of justice against a number of factors, including the best interests of the child and whether the information given in evidence is sensitive personal information or commercially sensitive information.

Exclusion of the media may be ordered by the court of its own motion or on application of any party directly involved in the proceedings. Many will question what these proposed changes mean for them.

You may be able to prevent press attendance

If you are involved in, or about to enter into, family proceedings that are likely to proceed to court, representatives of the press may be allowed to attend during the hearing. The press may report generally on your case, although the information published or broadcast should not be of a kind likely to lead members of the public to identify you, the other party to your proceedings, any child to whom the proceedings relate or any witnesses at the hearing of said proceedings.

It will be an offence to infringe theses stipulations, an offence punishable by way of fines and/or imprisonment. However, depending on the circumstances of your case, you may be able to prevent press attendance.

More transparency means more confidence in the system

The Law Society has welcomed the proposed changes and I would have to agree. Greater transparency should assist in the promotion of public confidence in the family court system. I suspect, however, that the initial effect of the proposed changes will be that more family law proceedings will culminate in early settlement, driven by the desire of either or both of the parties to such proceedings to avoid airing confidential and intimate details of their personal relationship and their family life in the presence of representatives of the press.

In time, this may change. After all, these proposed changes are akin to changes introduced in the UK in 2009 allowing accredited members of the media to attend certain hearings in the family courts. There was a flurry of publicity surrounding those changes in the UK at the time, with many arguing that the privacy of family law hearings would be lost. Indeed, these concerns have been voiced here too. However, from the UK perspective, in reality it seems that the changes have had little or no impact, with the majority of family law cases taking place in the absence of media attendance.

Emma Heron is an associate in the family law department of Beauchamps Solicitors.

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