How Ireland does transparency in its family courts

Many thanks to Dr Carol Coulter, director of Ireland’s Child Care Law Reporting Project and adjunct professor of law, NUI Galway, for this guest blog.

Dr Coulter recently spoke to the Association of Lawyers for Children conference in Bristol about how the project works.  I’m also hoping to make a trip to Ireland to observe, and interview the various people involved in this particular mechanism for achieving better scrutiny and accountability in the family Courts.

For more information about the project, Dr Coulter can be contacted at info@childproject.ie.

 

Ireland, like England and Wales, has struggled for decades with the conflicting demands of the need for transparency in the family courts and the need to protect the privacy of children and their families. Reform of the in camera law (hearings held in private) was piecemeal, took place over a decade and followed two distinct paths, designed by two different Ministers, both distinguished lawyers. One was a former Attorney General, the other one of the leading family law practitioners in the country. Both of them introduced changes to the in camera rule, one in 2004 and the other in 2013. This has led to a situation where there are now two parallel regimes for reporting family law in Ireland.

Under the 2004 regime a person nominated by one of a number of bodies named in legislation (legal bodies and academic and research institutions), and approved by the relevant Minister, can attend both public and private family law proceedings in order to report on them, subject to protecting the anonymity of the parties. While the court may give directions relating to the reporting, there are no other restrictions on what can be reported. This law did not permit journalists to attend.

A law was later passed, in 2013, permitting “bona fide journalists” attend and report on all family law proceedings, again subject to protecting anonymity of all parties and all witnesses, but also subject to a long list of types of evidence that could not be reported. Penalties for breaching these restrictions are severe. This, combined with the fact that in a small country it is difficult in a contemporaneous report, especially in a regional media outlet, to exclude details that may be identifying, means that very little direct family reporting is actually done by the media.

A journalist for 30 years who specialised in legal matters for over a decade, I have  undertaken two projects reporting on family law proceedings under the 2004 regime. The first was at the request of the Courts Service, and was a year-long pilot project in 2007 reporting on private family law proceedings. A report on this project, and on the implementation of its recommendations by the Courts Service, are on the Courts Service website, http://www.courts.ie.

In 2012 two philanthropic organisations came together with the Department of Children and Youth Affairs to propose a similar project on child protection courts, and asked the me to run it. The Child Care Law Reporting Project was set up in November 2012 and has been running ever since. It involves attendance at a randomised selection of child protection court proceedings, collecting data for later analysis and also taking notes in order to write journalistic-style reports on the individual cases which are published on the project’s dedicated website, www.childawproject.ie. As well as myself as the director of this project, a small number of part-time reporters (mainly barristers with an interest in child law at the beginning of their careers) assist in reporting and collecting data.

A protocol outlines the measures to be taken to ensure that the children and their families are not identified in reports, and includes not identifying the location of the court. Because we have no agenda other than providing objective reports on the proceedings, and we report routine as well as contentious cases, we have very cordial relationships with all stake-holders in the process.

For the first three years volumes of case reports were published at three-monthly intervals. The intervals between them are now six-monthly. The project also published annual reports analysing all the data collected, and a “Final Report” in 2015 analysing the first three years’ data. It also published a special report in June 2018 on exceptionally lengthy and complex cases, with a series of recommendations for reducing delay and minimising complexity. All these reports, along with the case reports and the protocol, are on the website, which is on open access.

The publication of each volume of case reports and of the analytic reports is accompanied by a press release, with synopses of the most significant cases and a summary of the main themes emerging from our work. These receive extensive coverage by both local and national media, with interviews with the project director on both public and private broadcast media. The reports have also sparked debate in the national parliament on child protection matters, and the director has regular discussions with the Department of Children and Youth Affairs, the state’s Child and Family Agency (which takes care proceedings), members of the judiciary and legal practitioners. Our reports are used in university departments teaching law and social work.

The case for transparency and accountability in child care proceedings, where the State exercises enormous coercive power in relation to families, is overwhelming. The media plays a crucial role in seeking accountability from public bodies and institutions. In any democratic society citizens need to know and understand how the laws passed by the politicians they elect work out in practice. Without this, there can be no way of knowing whether and how they should be changed. But the media is severely restricted in terms of resources, and is unlikely to be able to station a reporter in family courts on an ongoing basis.

In my view, and in the Irish experience, transparency in child protection proceedings requires a body dedicated solely to reporting on family and child care law, which then makes the reports available for re-publication by the media. Having a single unit doing so allows for the reporting to be governed by a protocol that protects the anonymity of the children and their families, and that filters the information reported so that the media do not have access to identifying or sensitive information. Such a unit also in our case allowed for information not otherwise collected to be obtained for further analysis of child protection proceedings generally, leading to recommendations for change.

The role of the Child Care Law Reporting Project has been, in a sense, to act as a filter between the raw material of the court proceedings and the reports that reach the public domain. We remove the identifying information and the disturbing details not essential to the decision in the case, while reporting comprehensively on the exchanges that reveal shortcomings on the part of state agencies and the reactions of parents to the proceedings. Only a dedicated body can follow cases that may go on for years and can devote resources to mundane as well as dramatic cases so that a representative picture is painted.

 

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