Changes to the In Camera Rule in Family Law Proceedings in Ireland

Up until the introduction of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 (“the 2013 Act”) which became operative in January 2014 members of the public and media were excluded from the hearings of family law and child care cases which are heard otherwise than in public or “in camera”. Previously, it was thought that the right of the family to privacy as protected in the Constitution of Ireland could only be protected by the absolute prohibition on members of the press from attending such hearings.  However the public also has a constitutionally protected right to see justice being administered in public and this right is essential to the effective operation of a democratic state.  Until January 2014 the balance between protecting the family’s right to privacy and the public’s right to see justice being administered in public was thought only to have been achieved by the blanket prohibition on members of the press from attending family law and child care hearings.

 

The net effect of the “old” “In Camera” Rule

The net effect of the “old” in camera rule was that family law and child care proceedings were not adequately reported on and there was sparse information available to parties facing family law and child care proceedings to help them know how their case would be dealt with by a court.  In addition, the “old” “in camera” rule was said to be instrumental in hindering complaints to professional bodies about the quality of representation and preventing the disclosure of orders to third parties where this is absolutely necessary (i.e. prospective purchasers of family homes).  The balance between the two rights referred to above was seen to go further than reasonably necessary to protect the right of the family to privacy.

 

The modified “In Camera” Rule

In an effort to address the perceived imbalance of the two rights the 2013 Act now permits bona fide members of the media to attend family and child care hearings and to report on same.  The “modified” “in camera” rule specifically prohibits publication of material that could lead the public to identify the parties to such proceedings.

Under the 2013 Act a Court is permitted to make an order excluding members of the press entirely where it considers such an order necessary (i) to preserve the anonymity of the parties or any child to the proceedings; (ii) by reason of the nature or circumstance of the case; or (iii) as it may be otherwise necessary in the interests of justice.  The foregoing three grounds are very broad however the 2013 Act states that when making such an order, the Court shall have regard to the desirability of promoting public confidence in the administration of justice and to any other matter that appears to be relevant.  Accordingly the 2013 Act guides a Court to make an order that would restrict the public’s right to transparency in the administration of justice in as less a way as possible.

 

Will my family law case be reported on in a newspaper or academic publication?

It is ultimately for the member of the press or their superiors to decide whether or not to publish a report or an article on your family law or child care case.

As explained above members of the press are restricted from publishing any material which would be likely to lead members of the public to identify the parties to your case.   A breach of this provision is a criminal offence and on conviction on indictment (in the Circuit or High Court) it can result in a fine up to €50,000 or a term of imprisonment of up to 12 months, or to both.    The severity of these sanctions is a strong incentive for the media to protect your anonymity.  A member of the press can unilaterally decide to publish a material which it considers to fall outside of the above restriction unless it is prohibited by a court order.

If you have a concern that the publication of a report on all or any aspect of your case will identify you or members of your family, disclose certain personal or commercially sensitive information or hinder you or any of your witnesses from giving evidence you should apply to the court for an order restricting the publication at the first available opportunity, or discuss doing so with your solicitor.  As explained above, when making an order the Court shall have regard to the desirability of promoting public confidence in the administration of justice and in this regard, it is likely to be more amenable to making an order restricting reporting of certain aspects of your case rather than an absolute prohibition on same.

 

How do I go about making an application to restrict the reporting of my family law or child care case?

Such an application can be made to the Court at any time during a hearing of your case be it a motion date (hearing in relation to a matter before trial) or the full trial.  Such an application is usually made by raising the issue with the judge at the outset of the hearing.  There are currently no formal court rules as to how to make such an application however new rules regulating such applications are expected to be introduced soon.

 

When will a Court grant an order restricting a report of my family law or child care case?

A Court can take into account any matter that it considers relevant to protect the interests of the family and children.  The 2013 Act provides that restrictions may be made in order to protect personal and commercially sensitive information.  Personally sensitive information is generally considered to be a party or a child’s medical history, tax affairs, high net worth or sexual orientation.

 

© May 2014

 

If you have any queries re the above contact Deirdre Farrell, Solicitor, AITI Chartered Tax Adviser , Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18. Ph: 01 213 59 40 .