Transparency In Family And Child Law Proceedings: Disentangling The Statutory Techniques And Terminology

• Author: Clare Craven-Barry
• Position: BL, LLM, PhD candidate with Dublin City University
• Pages: 88-102

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[2019] Irish Judicial Studies Journal Vol 3

TRANSPARENCY IN FAMILY AND CHILD LAW

PROCEEDINGS:

DISENTANGLING THE STATUTORY TECHNIQUES

AND TERMINOLOGY

Abstract

Article 34.1 of the Constitution of Ireland, 1937 provides that justice shall be administered in public, save ‘in

special and limited cases as may be prescribed by law’. Family law and child law proceedings are part of this

‘special’ category of cases. The Oireachtas has engaged both different techniques and different statutory phrases,

such as, inter alia, ‘in camera’ and ‘otherwise than in public’ to regulate these hearings. This article examines both

the techniques and statutory phrases as they apply in family and child law proceedings and considers whether the

court has exercised its discretion consistently.

Author: Clare Craven-Barry, BL, LLM, PhD candidate with Dublin City University. The doctoral research

which considers the protection and vindication of the rights of children civilly detained in special care through the

court process is funded by the Irish Research Council.

Introduction

The overarching principle under Article 34.1 of the Constitution of Ireland, 1937 is that court

proceedings must be heard in public.1 Its importance was considered by Hamilton CJ in Irish

Times Ltd v Ireland:2

Justice is best served in an open court where the judicial process can be scrutinised. In a

democratic society, justice must not only be done, but be seen to be done. Only in this

way, can we respect the rule of law and public confidence in the administration of justice,

so essential to the workings of a democratic state, be maintained.3

Article 34.1 also provides for departure from this constitutional imperative.4 When this occurs,

proceedings can be heard privately, that is, to the exclusion of the public. One of the categories

of exceptions is family and child law proceedings which by their nature reveal issues of a highly

personal and sensitive nature. Private hearings, particularly in child care matters, have in the past

been criticised. In their Report of the Independent Child Death Review Group 2000-2010, Shannon and

Gibbons observed that the ‘maintenance of a shroud of secrecy around child care cases does not

necessarily mean that the interests of minors are always protected as well as they can be as

practices which may need overhauling are shielded from scrutiny’.5 Family law cases were also in

the past described as having been ‘shut off from the world at large’.6

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1 In Re R Limited [1989] IR 126 (SC), 136. Walsh J in the Supreme Court opined that this ‘fundamental principle in the

administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937’.

2 Irish Times Limited v Ireland [1998] 1 IR 359 (SC).

3 ibid 382.

4 Not only is departure provided for under statute but also and under the ‘common law power of the Court to regulate its own

proceedings’ per Gilchrist & Rogers v Sunday Newspapers Limited & ors [2017] 2 IR 284 [46]; See also Hampshire County Council v CE

& Ors [2018] IECA 154 [18]-[19] & JD v SD [2013] IEHC 648 (SC) [16]; Gerard Hogan, G erry Whyte, David Kenny and Rachel

Walsh, Kelly: The Irish Constitution, (5th edn, Bloomsbury Professional 2018 ) 6.1.307-6.1.316.

5 Geoffrey Shannon and Norah Gibbons, Report of the Independent Child Death Review Group 2000-2010; (DCYA, 2012)

<https://www.dcya.gov.ie/documents/publications/Report_ICDRG.pdf > last accessed 17 September 2018, 394.

6 See K v K [2004] IESC 21, 5, 12. McG uinness J This case was decided prior to the relaxation of the privacy aspect of family and

child law cases.