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Column: Our new in-camera Family Court legislation is a sham

The unlimited powers given by to judges in our Family Courts may continue to prevent the public from finding out what has transpired, writes Gerry Fahey.

Gerry Fahey

ONCE AGAIN THE public is being deliberately misled by the Oireachtas on how to deal with the serious human rights problems arising from secret proceedings in the Family Courts. It is both interesting and informative to compare the legislation that the Oireachtas has just recently passed, regarding the operation of the in camera or secrecy rule in the Family Courts, with the legislative restrictions on reporting in rape cases.

For rape and sexual assault cases the following legislation has applied since 1990:

(6.1)Exclusion of the Public from Hearing
……… in any proceedings ……….. the judge, the justice or the court, as the case may be, shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the judge, the justice or the court, as the case may be, may in his or its discretion permit to remain.

Since this legislation came into operation the anonymity of victims of sexual assaults has been adequately protected. This has allowed the public to see how the criminal justice system works in this sensitive area. It has also allowed the public to evaluate how the judiciary deals with certain sets of facts, and it has enabled everyone to see if the judiciary is sticking to the precedent established in earlier cases. As a result, cases like the recent Griffith Avenue sexual assault case decision by Judge Hogan came under justifiable intense scrutiny in the public domain.

Exemptions and opt-out clauses

However, what the recent legislation concerning the in camera rule contains is entirely different to the legislation on the reporting of court proceedings in sexual assault crimes. For example, unlike the sex crime legislation, the relevant section in the new Court and Civil Law Act 2013 is much broader and contains many, many exemptions and opt-out clauses that allow judges to prohibit the press from being present and/or reporting to the public on proceedings.

(3A) (b) Subject to paragraphs (c) and (d), where, in proceedings under a relevant enactment, a court is satisfied that it is necessary to do so—
(i) in order to preserve the anonymity of a party to the proceedings or any child to whom the proceedings relate,
(ii) by reason of the nature or circumstances of the case, or
(iii) as it is otherwise necessary in the interests of justice,
the court may, on its own motion, or on application to it by a party to the proceedings or by a person on behalf of a child to whom the proceedings relate, by order—
(I) exclude, or otherwise restrict the attendance of, bona fide representatives of the Press from the court during the hearing or particular parts of it, or
(II) prohibit or restrict the publication or broadcasting of any evidence given or referred to during the proceedings or any part of such evidence,

Judges are human – they can make mistakes and bad decisions

This is only a part of the many exemptions from public scrutiny contained in the Act. Effectively these exemptions mean that there is really no change in the way the in camera rule will be applied in order to keep the proceedings of cases in the Family Courts secret. Why? Is it because the judges can use this Section of the Act to prohibit the press from reporting details of proceedings whenever a particular judge wants to hide the proceedings from public scrutiny?

The new legislation has enough latitude in it to allow judges to declare proceedings in camera whenever the judge is intent on a less than fair or impartial decision in a particular case. To pretend that judges may not do so and are in some way less than human in their behaviour on the bench is to ignore the reality. Just ask yourself – have there being any court decisions in recent times that gave cause for concern? Apart from the Griffith Avenue sexual assault case the most notorious in recent years were, of course, the Sheedy Affair and Judge Brian Curtin cases.

The Australian example

What is really bizarre about the Houses of the Oireachtas passing this piece of legislation is that it ignores aspects of international best practice in this area of which Australia is a prime example. Austalia, just like Ireland, has a common law system and its 1975 Family Law deals with the issue of anonymity and secrecy in the Family Courts in a somewhat different manner.

Part X1A of this Act lists some of the circumstances, other than anonymity, under which a judge can exclude the press. For example, it does not include a ‘catch-all’ exemption similar to 3A.b.(ii) above which allows for exclusion of the press “by reason of the nature or circumstances of the case”.

‘An emotional condition’

The unlimited powers just given by the Oireachtas to a judge in our Family Courts may well continue to prevent the public from finding out what has transpired. Effectively, the new legislation may be no more than a sham. Nothing may change and the issues that have led to public disquiet at the secret operation of the Family Courts may continue unabated. A prime example of questionable exemptions in the new legislation is the following subsection:

3A.c. (iv) the extent to which the attendance of bona fide representatives of the Press might inhibit or cause undue distress to a party to the proceedings … to whom the proceedings relate by reason of the emotional condition or any medical condition, physical impairment or intellectual disability of the party …. concerned

A similar exemption does not apply in rape or sexual assault cases where there is a much much stronger case for its inclusion because of the trauma for the victim that can easily arise from allowable press coverage. This subsection can, for instance, allow the lawyers for a party to a family case to use suicidal ideation as a tactic to keep the proceedings secret. Once this ‘emotional condition’ is used the court will have no option but to declare the proceedings secret because no judge can ever take a risk on suicide occurring or not.

Lawyers legitimately look for loopholes in legislation to use to the advantage of their clients, and this one could very easily become standard practice as a legal tactic for keeping the press out of court.

It is of vital importance, as a result of the consequences of the legislation passed by both Houses of the Oireachtas on the night of September 29th 2008, that the general public become much more active in scrutinising legislation passed by the Houses of the Oireachtas. As the events of 2008 have shown, we can not rely on our public representatives to do so because they are simply not up to the task, for whatever reason. Why did the Oireachtas not just use the same type of legislation as that in use since 1990 in the Criminal Courts when dealing with sexual assault cases,or more closely follow the Australian model? These are questions that the Houses of the Oireachtas have failed to address.

Gerry Fahey is an Occupational Psychologist and a graduate of TCD and the University of Illinois at Urbana Champaign.

Read: Family law and child care court cases can now be reported, but under strict conditions

In 2012: Reporting to be allowed on family law and child care court cases >

Read: Conversation between two judges on family law case had ‘no effect’ on ruling >

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Gerry Fahey

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