I welcome the Minister for Justice and Equality, Deputy Shatter, and his officials.
Courts Bill 2013: Second Stage
I thank the Acting Chairman. I am pleased to present the Courts Bill 2013 to the House. This is a relatively short Bill which contains two important and long overdue court reforms. The first of these is a proposal to change the long-standing in camera rule in family law and child care proceedings. The in camera rule provides that family law and child care proceedings should be held otherwise than in public. The rule is an exception to the fundamental principle of our law, guaranteed by the Constitution, that court proceedings should be held in public. The rationale behind this principle is that where justice is being administered, it must be open and transparent. However, like most important principles of law, exceptions must be carved out in certain circumstances if injustice is to be avoided. It has been a long-standing principle of law that family law and child care proceedings is one such exception. The purpose of the in camera rule is to protect the identity of the parties and other persons, including children, to whom proceedings relate.
There is the exception for a very important reason that I accept and support. In family law and child care proceedings, often painful and very sensitive family and personal matters are at issue and it has long been accepted that there cannot be a public interest in the very private affairs of the parties such as would justify full public access to such proceedings. It is also essential that individuals can have their disputed family and child care matters addressed in our courts without fear of public embarrassment or the welfare and best interests of children being placed unnecessarily at risk. However, the absolute nature of the in camera rule has led to a situation that such proceedings are perceived to be shrouded in mystery and secrecy. There is no press reporting of these proceedings because press access to them is prohibited. There is accordingly an absence of reliable information on the administration and operation of the law in this area which is not conducive to confidence in our system of family law and child protection.
Members of the public need to know what they could reasonably expect from the courts if they were to find themselves in the unfortunate position of having to seek access to the courts in such cases. Lawyers must be clear on how they might advise their clients and law-makers need to know how the law is being applied by the courts to assess whether the law is adequate to give protection to the individuals, the families and the children who seek or require its intervention. This important principle was recognised recently in a high-profile High Court case on the issue of whether the genetic parents of children born to a surrogate mother may be listed as the children's parents on their birth certificates. Three newspapers applied to be permitted to report on the case without identifying the parties. Mr. Justice Abbott, who described the case as one of serious public importance, permitted designated reporters from the three newspapers in question and a High Court reporter to report the case on a restricted basis.
Recent policy in the law on the hearing in the courts of family law proceedings in private is reflected in section 40 of the Civil Liability and Courts Act 2004 and in regulations made under that section. Regulations made under section 40 allow certain classes of persons to attend family court sittings, subject to ministerial approval, in order to draw up and publish reports. Ministerial approval is subject to certain safeguards, including a requirement that the parties to a case or any relevant child would not be identifiable. Under this scheme, several persons engaged in family law research who were nominated by bodies specified in the Schedule to the regulations have been approved. In addition, the Courts Service introduced the family law reporting service on a pilot basis in 2006. The purpose of the pilot project was to provide information on the operation of family law in the courts.
While these initiatives have provided a useful insight into family law and its operation, they cannot alone bring the greater transparency that I believe is required on the operation of the law in this area. Accordingly, what I am providing for in this Bill is a careful balancing of the need for privacy with that of public access to important information on the operation of family and child care proceedings in our courts. My proposal is to retain protections on the privacy of the parties in respect of such court proceedings while providing that bona fide members of the press can be admitted to the proceedings. In this Bill the right of press access to proceedings is balanced with a strict prohibition on the publication of any information that is likely to identify the parties to the proceedings or any child to whom the proceedings relate. It will be a criminal offence to publish information in breach of this prohibition.
I am also providing that the courts will retain the right to exclude or restrict the presence of members of the press from all or part of the proceedings in certain circumstances. The circumstances are where it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate because of the circumstances of the case or in the interests of justice. The courts will, for the same reasons, be able to direct that certain evidence should not be published. The type of situation envisaged could, for example, be where a child or a vulnerable adult is giving evidence. This residual power is being included in the Bill to give the courts the capacity to deal with the myriad of sensitivities and situations that can arise in proceedings of this nature.
The Bill is designed to achieve an appropriate balance between greater transparency in family court proceedings and protecting the anonymity and privacy of families and individuals, with a particular focus on the best interests of the child. The measure is also intended to ensure that sensitive information relevant to a family's or individual's commercial interests will not be disclosed in the reporting of family proceedings. The Bill, as published, does not include provisions to amend the privacy-in camera provisions applicable to adoption court proceedings contained in the Adoption Act 2010.
I intend, with the agreement of my colleague, the Minister for Children and Youth Affairs, Deputy Fitzgerald, to introduce an appropriate amendment on Committee Stage to amend the 2010 Act to deal with privacy and media access issues in line with the provisions contained in this Bill.
As the Bill embodies a fundamental change in our approach to family proceedings, I regard detailed consideration of these provisions as a crucial part of the legislative process to ensure that we achieve the right balance between the public interest and the right to privacy. Accordingly, I look forward to hearing the opinions of this House on the provisions and will have no hesitation in amending my proposals to reset that balance if it is necessary to do so.
I wish to turn to the monetary jurisdiction limits in the courts. The second important reform that I am providing for is an increase in the monetary jurisdiction limits for the District and Circuit Courts in civil matters. The purpose of these jurisdictional limits is to ensure that the level of court that hears a case is appropriate to the potential value of the case. I am sure that the House is aware that the legal costs incurred by parties to a case are related to the court in which the proceedings take place. It is estimated that, on average, the legal costs of taking a case in the Circuit Court, subject to the complexity of the case, are 30% less than in the High Court. In the current financial situation it is essential that all necessary steps be taken to reduce the high level of legal costs that can act as a barrier to the citizen and to businesses in seeking redress before the courts. An appropriate increase in the jurisdiction levels is long overdue to ensure that courts are dealing with cases at an appropriate level and that the costs being incurred by the parties are at a reasonable level.
The monetary jurisdiction limits of the Circuit Court and District Court have remained unchanged since 1991. The Courts Act 1991 set the current monetary jurisdiction limits for civil matters at €38,092 for the Circuit Court and €6,384 for the District Court. Although the Courts and Court Officers Act 2002 made statutory provision for increases in the limits to €100,000 and €20,000, respectively, these increased limits were never brought into operation because of concerns about possible inflation of awards and a consequential effect on insurance costs. Accordingly, almost 11 years have passed since statutory provision was last made for an increase in the jurisdiction limits, yet they remain as they were almost 22 years ago.
The retention of the lower monetary limits has rendered the District and Circuit Courts redundant in respect of some classes of civil proceedings. The low level of jurisdiction in the Circuit Court means that very modest actions must, in the absence of agreement between the parties, be taken in the High Court. Such cases are potentially the subject of appeal to the Supreme Court. This makes no sense at a time when the workload of the Supreme and High Courts has increased significantly in volume and complexity, with Supreme Court appeals currently waiting over 48 months for a hearing date. Following consultation with the Attorney General and the Presidents of the Circuit and District Courts, I am, therefore, proposing to increase the jurisdiction of the Circuit Court to €75,000 and of the District Court to €15,000.
The reason no action has been taken to address this issue to date relates to a concern that increasing the limit of the Circuit Court to €100,000 as provided for in the 2002 Act would have an inflationary increase impact on personal injury awards in the Circuit Court and a consequential inflationary effect on insurance claims. Accordingly, I have decided to address this issue in the Bill by setting a lower jurisdiction limit in the Circuit Court for personal injury proceedings. I am setting the level at €60,000, which is of course 40% less than the equivalent level set by the Court and Court Officers Act 11 years ago, which was not brought into force in this context.
The increased jurisdiction limits will prove to be a fairer and more cost efficient approach to the processing of civil proceedings by the courts. The proposed changes to the jurisdiction limits of the Circuit and District Courts should ultimately lead to a reduction in the burden of legal costs for individuals, companies and businesses involved in litigation. It is crucial that parties involved in legal conflicts do not incur more legal costs than are necessary in circumstances in which they have to resort to litigation.
It is also important that our court jurisdictions keep substantially in line with inflation and that the higher courts are not unnecessarily overburdened with appeals that could and should be properly dealt with at a lower level. The extension in the jurisdiction of the District Court will result in a portion of litigation, at present undertaken in the Circuit Court, in the future being dealt with at District Court level. The changes will also result in a proportion of litigation currently being conducted in the High Court in the future being dealt with at Circuit Court level. Over time, this should effect a reduction in the number of appeals that have to be dealt with by the Supreme Court. A further amelioration of the burden at present imposed on the Supreme Court will result from the creation of a court of appeal should the proposed referendum it is hoped to hold next autumn to provide for such a court receive public support.
It is in the public interest that jurisdictional issues be revisited more frequently and I am considering what steps might be taken in the context of this Bill to ensure this occurs in the future. If I think it is appropriate to do so, I may bring forward an amendment to this Bill to provide for an appropriate review mechanism.
There are a number of important matters that need to be legislated for and I am proposing to deal with these matters by way of Committee Stage amendments to the Bill, either in this House or in the Dáil. They are as follows: first, the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in respect of certain inquests. The Coroners Bill 2007, which is before this House, is in the course of being reviewed in the Department of Justice and Equality with a view, among other matters, to making it as cost effective as possible. The Bill, as published, provides for the comprehensive reform of the existing legislation and structures relating to coroners and provides for the establishment of a new coroner service. The European Court of Human Rights has, in recent times, emphasised the importance of involving next of kin of the deceased in the coroner's inquest into a death involving the State and in providing them with information prior to the inquest. This means that, in certain cases, families may require legal assistance to participate effectively in the inquest process.
The Coroners Bill 2007 proposes some important changes to the legal aid scheme by providing in section 86, legal aid and advice in proceedings before a coroner, and in section 92, amendments to the Civil Legal Aid Act 1995, that the Legal Aid Board may arrange for the granting of legal advice or legal aid to the family of a deceased person for legal representation at an inquest where the person has died in, or immediately after being in, State custody or certain institutional care situations. Swift attention is now required to address the issue of legal aid at inquest. Accordingly, I am proposing to introduce Committee Stage amendments to include the provisions contained in sections 86 and 92 of the Coroners Bill 2007 in this Courts Bill.
The second issue is the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service. Unfortunately, owing to lack of time in finalising the Personal Insolvency Bill for enactment last year, it was not possible to provide in that Act for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service as originally intended. I am anxious that this matter be dealt with as soon as possible to ensure the Insolvency Service and the services of the Office of the Official Assignee in Bankruptcy are aligned and provided for in the Personal Insolvency Act 2012. To facilitate, this I am proposing to provide for the appropriate additions to that Act by way of appropriate Committee Stage amendments to this Bill.
I wish to turn to the main provisions of the Bill. First, there is the amendment of rules relating to certain proceedings heard otherwise than in public contained in Part 2. The main provisions of the Bill relating to modification of the in camera rule are contained in sections 5, 6 and 8 of Part 2. Section 5 will amend section 40, proceedings heard otherwise than in public, of the Civil Liability and Courts Act 2004. It provides for the amendment of the in camera rule, as contained in certain enactments relating to family law, so as to allow bona fide representatives of the press to be present in court during proceedings under those enactments. However, where a court is satisfied that it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate because of the nature or circumstances of the case or because it is otherwise necessary in the interests of justice, it may exclude or restrict the presence of representatives of the press from the court during all or part of a hearing. For the same reasons, the court can restrict or prohibit the publication or broadcasting of evidence given or referred to during the proceedings. In determining whether to make such an order, the court will have regard to the desirability of promoting public confidence in the administration of justice and to any other matter it considers appropriate, including a number of other factors, for example, the best interests of any child to whom the proceedings relate, whether information given in evidence is sensitive personal information, and whether information given in evidence is commercially sensitive.
Section 6 inserts a new section 40A, prohibition on publication or broadcast of certain matters, into the Civil Liability and Courts Act 2004. Subsection (1) of the new section 40A prohibits the publication or broadcasting of any information on a matter that would be likely to lead members of the public to identify the parties to family law proceedings or children to whom the proceedings relate.
Subsection (2) provides that contravention of subsection (1) will be an offence. Subsection (3) is a standard provision regarding offences by bodies corporate and subsection (4) provides that the law as to contempt of court will not be affected by the new section 40A. Section 8 amends section 29, hearing of proceedings, of the Child Care Act 1991 so as to allow bona fide representatives of the press to be present in court during child care proceedings under that Act. The provisions of this section mirror those of section 5 regarding the attendance of representatives of the press at family law proceedings.
Part 2 provides for the increase in the monetary jurisdiction limits of the Circuit Court and District Court, as previously mentioned. Section 11 amends the enactments specified in Part 1 of the Schedule to extend the monetary limit of the jurisdiction of the Circuit Court in civil matters under those enactments to €75,000. Section 12 amends the enactments specified in Part 2 of the Schedule to extend the monetary limit of the jurisdiction of the District Court in civil matters under those enactments to €15,000. Sections 13 to 18, inclusive, amend certain enactments to provide for the revised monetary jurisdiction limits of the Circuit Court and the District Court, including the lower limit of €60,000 for Circuit Court personal injuries actions.
The Bill contains important steps in the process of modernisation of our courts to ensure that the essential service they deliver to the community is efficient, effective, fair and accessible to all citizens. It will ensure that access to the courts is not unnecessarily expensive for those who require such access. Accordingly, I commend the Bill to this House.
It is welcome that adequate time is being provided for debating what is a short but important Bill that is not without consequences or ramifications for people. In this House we are not always afforded the time to properly debate Bills but I acknowledge that we have in this instance, as I have been critical of the practice in the past.
The Minister is welcome to the House. I feel somewhat conflicted on the issue, although I concur with the Minister's comments on openness and transparency and the manner in which the law under the Constitution should be operated. My personal conviction on many issues is that the common good is a very important feature, and there is much emphasis on individual rights, although we must balance this dynamic. In this instance part of the motivation behind the Bill is the common good so that people will be aware of the process and be better informed about it if they must access the courts.
On the other hand, as the Minister has indicated, these can be very painful experiences for the people involved in cases. One must consider the role played by the media and how people react to it, and in his opening remarks the Minister referred to the fact that there would be an obligation on solicitors to brief clients and prepare them for a new scenario in family law cases. To some degree, an unacknowledged advantage may well be that in the processing of cases, the judge in charge will be aware that he or she is subject to some element of accountability, which is an important feature of the entire legal process. I have been advocating for many years the establishment of a judicial council and I was a member of a Oireachtas joint committee which researched the idea in Canada and the US eight or nine years ago. We were impressed with what we saw and were enthusiastic in advocating a move in that direction. My understanding is the idea was not welcomed entirely by some people within the Judiciary but there is a real need for an effective review of judicial activities by peers. There should not be any political or external influence but there should be a review.
Two judges have resigned, although the second judge only did so when there was no other option. In one case there was a consensus-----
We should refrain from referring to the Judiciary in this House. That is a tradition.
Anything I have said in this regard is a generality and not specific to a member of the Judiciary.
I am sure the Senator will observe the practice.
I am sure Members will be aware that in family law cases there are often complaints regarding a father's rights and how they are dealt with. I welcome a move that will make the process more transparent.
Many people finding themselves before family law courts see that it can operate in the District Court system, with cases appended at the end of a long day of hearings on cases. There may be a severe lack of privacy in many cases in courts. Should there be specialist judges involved in the area and should there be special courts for the cases to be heard on one day, away from other judicial procedures? I know there may be a cost involved and practical difficulties but it would be better to have specialists in the area.
The rate of breakdown of marriage in this country is not particularly high, comparatively speaking, as the rate of divorce is lower than in other countries. It may be higher, from a social perspective, than one would wish. There is a significant cost attached to the Exchequer arising from it in many instances, so it behoves us for a variety of reasons - and not least for the benefit of children - to have structures in place to assist reconciliation between the parties. Existing structures are often inadequate, leading to people going to court in an acrimonious fashion. I mentioned to a predecessor of the Minister that we should have a problem mediation service and he assured me the idea was being examined within the Department. I discovered that the emerging mediation service was meant to facilitate a divorce settlement, and although that is a good idea, it is clearly not what I had in mind with regard to protecting children.
The Minister has mentioned administration and operation of the law, and because of the in camera process it is not conducive to confidence in the family law system. I do not disagree with the Minister, who mentioned that people need to know specifically what the process is like. The reality is that when a relationship is fractious, children can become pawns in the hostility that emerges between two parties. I have taken the trouble to contact a small number of solicitors, all of whom have expressed personal reservations about extending the family law courts to the press. Nobody felt it was a good idea.
One person has told me he deals constantly with cases and remembers occasions when the presence of the court clerk, in itself, became an inhibiting factor in a case. That is why I feel conflicted about this issue. In cases where one partner feels aggrieved and blames the other partner for the breakdown or where a third party is involved, the presence of the press might, or might not, accentuate such feelings. My colleagues will remember from our council days that meetings were often more productive when the press were not in attendance. I accept that the situations are not parallel. Nevertheless, the presence of the press can have an effect. There is an element of personal embarrassment for the protagonists. If there are maintenance issues the parties will be obliged to spell out their costs of living and may have to discuss access to children.
I am thinking particularly of local newspapers. In Dublin, anonymity will be more easily protected. In small towns, where the District Court operates, the local reporter will know the parties involved. Members of the public may be aware of certain situations but not the detail of why a couple are breaking up. Those details will be easier to connect when cases are reported. With the best will in the world, it will be difficult for reporters to ring-fence this. I ask the Minister to look at this issue and see if privacy can be safeguarded. The interests of the parties involved, and particularly of the children, should be of paramount priority. What we are doing here should not have a negative impact on a single family, not to speak of a number of families.
I welcome the Minister to the House yet again.
This Bill is very important. Its effect will be greater than its content. It is part of the Minister's progressive reform agenda and it signals an important incremental step in the reform of our courts system. We have seen the referendum on judges' pay, and other important steps have taken place in the last two years.
The Bill will bring the transparency and accountability that the Constitution embodies. The in camera rule needed to be changed. This is now being done, but in a delicate manner and with the necessary provisions to safeguard the identities of families who will be going through difficult periods. No family likes to end up in court. While the Bill is progressive in terms of transparency and accountability, it will ensure that the necessary protections are in place.
We are fortunate that the Minister, in his previous existence, was one of the most successful family lawyers in the country. His firm was there at the very early stages of family law and I believe he may even have written a book on the subject. He is more aware than most of how to get this right. His statement that he will have no hesitation in accepting amendments on Committee Stage, if they are necessary to make the Bill work properly, must be commended. That approach to legislation, and the importance of the Seanad providing ample time to discuss the Bill and giving spokespeople ten minutes to put their views on the record, is important. Our interaction on Committee Stage may inform the Minister's decisions and his thinking. I look forward to that. The Bill is welcome, as legislation that will facilitate the reform agenda.
The Bill places responsibility on the press. In recent times we have seen the fourth estate waver from the standards we expect of it. It plays a pivotal and important role in society. The Bill is an attempt to do the right thing and to ensure proper records and proper reporting in this important area of legal activity. I suggest that the press shoulder its responsibility to ensure that no one prints or broadcasts information that is prohibited by the Bill. The Minister has mentioned that such reporting will be a criminal offence. I hope that will never arise. I look forward to the various reviews of the code of conduct for the press which are taking place. The press has a responsibility in this area.
The Bill is welcomed across the House which augurs well for its smooth passage through the Oireachtas. I commend it and welcome the Minister's comments regarding the proposed coroners Bill. It is needed. We must achieve value for money. It is not appropriate that local authorities should have to fund the Coroner Service. The Minister should consider centralising responsibility for paying coroners in a national system, whether by the Department of Justice and Equality or elsewhere. Local authorities have no discretion in achieving efficiencies by coroners. They are simply issued with a bill and must pay it. Local authority funding has been reduced dramatically and local authority finance officers must identify ways of saving money. I have had discussions with some finance officers and they constantly cite this area as one where they have no power. The Minister might consider this when drafting the coroners Bill.
I was asked, at short notice, to cover for Senator Bradford. I read the provisions of the Bill very quickly. I believe it makes eminent sense and commend it to the House.
I welcome the Minister to the House and thank him for continuing his practice of introducing Bills in this House.
The Bill has a twofold purpose. The first is to amend the rules relating to certain proceedings heard otherwise than in public and the second is to increase the monetary amounts the District Court and the Circuit Court can award. I will limit my intervention to the first purpose, the proposed amendment to the in camera rule in family law and child care cases.
I broadly welcome the efforts in the Bill to strike the appropriate balance between the public interest and the privacy of adults and children involved in family law and child care cases. Most people are familiar with the variant of Lord Hewart's famous aphorism from 1924: "...it is not merely of some importance but is of fundamental importance, that justice should not only be done but should manifestly and undoubtedly be seen to be done." The principle of open justice is a foundational common law principle, an important human rights obligation and an enumerated provision in the Constitution. The relevant article, Article 34.1, provides for exceptions to the administration of justice in public in "special and limited cases". Such cases include those involving the most vulnerable in our society and children are one such group. Children and families involved in family law and child care proceedings present with myriad vulnerabilities and in fragile situations. There is, therefore, a real danger of adverse effects for the parties involved in the immediate and long term. In the light of the highly personal and sensitive nature of family law and child care cases, privacy and the anonymity of the parties should be protected from public consumption through media reporting.
However, a balance must be drawn, which this Bill purports to refine, and I agree that where anonymity is guaranteed and respected, the facts of family law and child care cases and the decisions of the courts should be published. This balance, if fully legislated, guided, explained and implemented, can account for the vulnerabilities of the children and families involved while ensuring key issues are brought to the attention of the public and debated through public discourse. Failing to inform the public and adopting the cloak of secrecy, to the extreme, has had disastrous consequences for Irish society in the past. A clear example of this can be seen with the injustices perpetrated against the women detained in the Magdalen laundries. That issue remained completely out of the public realm while the injustices were occurring. It is important that the public interest and the need to foster and encourage a greater understanding and trust in the family law and child care system is embraced and implemented. The presence of the press will also, I hope, ensure the recording of precedent and the reasoning behind decisions in proceedings where there is no written judgment will take place.
I have a few questions about the practical application of the amendment to section 40 of the Civil Liability and Courts Act 2004, as contained in section 5 of the legislation. The scope of the circumstances in which the court may exclude or restrict the attendance of press representatives and prohibit or restrict publication of certain evidence is broad. Ultimately, this will be a decision for the judge to make weighing the public interest considerations against the considerations enumerated in the Bill, which include the best interest of the child; that the evidence is sensitive personal information; that the evidence might be prejudicial to a criminal investigation or criminal proceedings; that the information and evidence is likely to lead members of the public to identify a party or child; or where press attendance might inhibit or cause undue distress to a party or child. Will the court’s adjudication over this complex balance be guided by court rules, practice directions or clear procedural guidelines? Who will be charged with making applications that the press should not attend? Will this be the role of the guardian ad litem, family member, HSE or the judge? Will there be an avenue of appeal to the decision to allow or restrict the presence of the press? How will the manner by which courts arrive at decisions in this regard be monitored?
My concern is that once information is disseminated, it cannot be taken back. This is particularly concerning, given the adverse effect or impact for the party concerned may far outweigh a possible monetary remedy, press apology or criminal conviction of those responsible for the publication of the material in question. Whether it is a child care case, family law case or a case before the Children Court, I strongly recommend that any guidelines or rules relating to the media reporting of any case to which a child is party be proofed against the Council of Europe Guidelines on Child-Friendly Justice 2010. These were drafted by Professor Ursula Kilkelly of University College Cork in consultation with children across Europe. While not binding on member states, the guidelines are standards of best practice. Their strength and relevance further lies in the fact that they have been substantiated by children’s own experiences of the justice system.
I have no doubts about the intention of this amendment but I have doubts, in the absence of rules or implementation guidelines, about its practical application on the ground. We need only to consider the Children Act 2001, which reads as an informed, welfare centred and progressive legislation. However, the weakness of the Act lies in the distinct lack of any procedural guidelines being produced to date for its implementation. Guidelines are desperately needed for the implementation of the Children Act and for this Bill if their full intention and spirit are to be realised. The children’s rights referendum very much underpinned that the best interest of the child needs to be realised in practice. I have spoken to legal practitioners working in the Children Court who are deeply concerned by what have been described as routine breaches of the Children Act in Dublin and regional sittings of the Children Court.
Examples of these breaches include the calling of the name of the child by the court appointed registrar into the public waiting room, the former practice of District Courts of including the name of young person with "YP" in brackets beside the name on the court list or the presence of Garda and legal representatives unrelated to the specific case in the court room which is mandated to sit in camera. These malpractices cannot be tolerated and need to be remedied. Some of the remedies are straightforward. For example, why not ascribe a number to children for their cases which is communicated to them upon their presentation at court and the calling out of the case number only as opposed to the child’s name by the registrar for everyone to hear? We need to ensure the strict application of the in camera rule by liaising with judges presiding in the Children Court to make sure only gardaí and legal representatives directly involved with the relevant proceedings before the court are present in the court room. It is also clear that a child-friendly environment described by international standards of best practice and the European Court of Human Rights, ECHR, in cases such as T v. UK and V v. UK are not being implemented. Privacy is central to the creation of this environment.
In the cases I mentioned, the ECHR expressly recognised the adverse impact of overt media presence on the ability of the children in question to effectively participate in the proceedings before that court. As a result, my earlier concern arises as to who acts as the guardian of the child’s privacy and whether those charged with that task fully understand the importance of the child’s privacy and the full extent of the child's vulnerabilities and backgrounds. This raises the greater concern and question as to what training and specialisation the people who are currently representing and adjudicating on children have, especially in light of the state legal aid payments that legal representatives appearing in the Children Court receive. Specialist training needs to be considered. In the UK, specialist panels have been set up where those involved must undertake specialist training. Will the Minister give serious consideration to a similar requirement here in order that if somebody is receiving legal aid payments in respect of a case in the Children Court, he or she must have attended specialist training?
I welcome the Minister's proposals to introduce amendments to the Coroners Act 1962 and the Civil Legal Aid Act 1995 and look forward to dealing with them on Committee Stage. Senator Walsh referred to mediation and I look forward to the mediation Bill the Minister intends to introduce. It will be important to avoid cases going to court. This would be best, especially when children are involved. I look forward to developing alternatives such as family group conferences, which was proposed in the fifth report of the Special Rapporteur on Child Protection. There are other ways. While I raised a number of concerns, I welcome the spotlight being put on the Children Court.
I welcome the Minister to the House. I also welcome the Bill which has received general support. I thank the Minister for introducing it in the House. He has done this with justice-related Bills on a number of occasions and this is welcome, especially when there is general support in principle for the legislation but a number of complex issues must be teased out. Senator van Turnhout raised a number of them in her contribution.
It is important that support is maintained for the in camera rule in principle and that we recognise that family law and child care proceedings are an exception to the norm under Article 34.1 concerning the administration of justice in public. It is right and proper that there should be exceptions. However, as the Minister said, we need to balance the need for privacy in proceedings involving inter-family disputes and child care proceedings with the need for public access to important information on the operation of these proceedings and patterns, trends and statistics on the proceedings
This is where the gap has been. This was partially addressed through the Courts and Civil Liability Act 2004, as the Minister stated, which enabled some research to be conducted, and I pay tribute to Dr. Carol Coulter who carried out the family law reporting pilot project and gave her report to the Courts Service in 2007 on the authority given her by the Courts and Civil Liability Act 2004. She wrote extensively on the need for this balance to be in operation and for the in camera rule to be modified to enable some reporting. She pointed out the irony that in the period running up to the referendum on divorce there was widespread public discussion on family breakdown and the impact of divorce on society, but this discussion came to an abrupt end when divorce was introduced, and no attempt could be made to examine how it was working out in practice while the in camera rule remained in place. The 1996 Law Reform Commission report on the family courts had criticised the over-rigid application of the rules to block any availability of public information on the conduct of family law proceedings.
Research has been conducted in other jurisdictions where family courts have been open to the media, such as in Australia and Scotland. Recommendations made by Dr. Coulter in 2007 referred to the need to have some statutory reform beyond the 2004 Act to ensure we have a regime in Ireland closer to that in other jurisdictions where reporting is permitted, such as that used in Canada, Australia or New Zealand, or similar to that operating in Ireland with regard to sex offence cases where reporting is permitted but the anonymity of the complainant is preserved and the identity protected. The work on family law courts in the pilot project has certainly given us more information and the recommendations produced in 2007 are very important.
The child care reporting project has also been launched and will be led by Dr. Coulter. The website will be launched next week. This should give us some information on the operation of the courts which make orders under the Child Care Act, and the idea is that the pilot project will publish reports on the nature and outcomes of child care proceedings while preserving the anonymity of the children and their families.
All of these developments are very welcome. Others, particularly Senator Conway, referred to the Minister's expertise and I learned family law from his text. I am very familiar with it. It is very important that somebody with such direct practical and expert experience would be engaged in making these reforms.
Senator van Turnhout set out very practical questions on the operation of the Bill, particularly whether there is a route for appeal where a party to proceedings has objected to the presence in court of the bona fide representatives of the press. This is a practical issue which may well need to be teased out. My suspicion, or intuition, is that judges would take a relatively conservative approach whereby if objections are raised and they are reasonable, they will be listened to and upheld by judges. We will see quite restrictive reporting, particularly in the initial period, and this may well be the right way to approach this. I also concur with Senator van Turnhout on the need for specialised training, having worked in a small way in the child care courts myself as a legal practitioner. People tend to learn on the job, which is not ideal, but there are some superb and highly experienced people working as guardians ad litem who bring a great deal of necessary expertise and experience to the courts and whose input informs the work of these courts.
The Bill is part of a more general court reform process and reference has already been made to the reforms planned for family courts and the greater emphasis on mediation. The Minister has set out plans to bring forward a referendum to reform the court structures. I wish to make a plea for the need to establish a proper basis for the Court of Criminal Appeal. Its current operation is characterised by long delays in the system whereby appeals are often heard when sentences have expired. There is also inconsistency in the make-up of the court as no permanent judges have been assigned. Attempts are being made to address this which are very welcome.
With regard to the more general reforms I welcome, as others have done, the announcements made by the Minister that an amendment will be tabled to deal with the issue of legal representation in the Coroners Court. This is very important and I am glad to see the Minister will do it. I thank him for outlining in advance to us the amendment he proposes to make on Committee Stage which we will discuss in more detail then.
To turn to the other part of the Bill, which deals with the increase in monetary jurisdiction of the Circuit Court and the District Court, none of us would disagree with what the Minister stated about the practical need to raise these limits. Previous raises envisaged were never brought into operation so clearly this is overdue. This is an opportunity to look at jurisdiction more generally, particularly in the District Court on the criminal side. I have often thought we need to examine in more detail the way in which we have considered the various incarceration periods. With regard to the monetary jurisdiction on the civil side of the District Court, very careful consideration has been given to the raises in the monetary level which should be introduced and, as the Minister stated, an argument is to be made for keeping it under regular review. However, we have not had the same detailed consideration given to the sentencing jurisdiction of the District Court.
I have always thought, as somebody who started practising in the District Court as a criminal practitioner many years ago, that the 12-month sentence limit and the 24-month limit for more than one sentence are very high. Anyone sentenced to three or four weeks in prison would regard it as a significant imposition on his or her liberty. To deprive a person of his or her liberty for up to 24 months is a significant invasion of a person's constitutional right to liberty. It is worth examining again whether it is appropriate the District Court has the power to sentence. Should we consider reducing the jurisdiction of the District Court in terms of sentence length for criminal offences? It should come under any detailed consideration of jurisdiction.
I also ask this in the light of the report the Oireachtas Joint Committee on Justice, Defence and Equality published today. Senators O'Donovan and Conway were involved in this, with Senator Zappone and I and Members of the Dáil under the chairmanship of Deputy David Stanton. The report recommends the Government adopt a decarceration strategy and examine reducing prison numbers, particularly in respect of those committed to prison for non-violent offences, and that we examine particularly the purpose of sentencing people to prison for six months or less. We heard extensive evidence from various stakeholders who came before the committee that there is very little opportunity for rehabilitation if somebody is sentenced to a short sentence and released in an unstructured way. We believe that where possible, people should instead be directed to carry out periods of community service. The report is highly supportive of the community return programme being ,operated by the Irish Prison Service and the Probation Service. The Department of Justice and Equality supplied us with very impressive figures on the results of this programme and information on the very positive engagement, with many people released early from prison directed to serve out the remainder of the sentence in the community under the supervision of the Probation Service. This seemed to us to be a very enlightened and more effective way to achieve rehabilitation of offenders and reduce recidivism rates.
We have made a series of recommendations which we will pass on to the Minister, particularly on remission, which focus on reducing the use of imprisonment and emphasising non-custodial alternatives with more genuine reform and rehabilitation potential. It is in this context I ask that we re-examine the jurisdiction of the District Court. I apologise for going slightly off the point of Bill but it is an opportunity to discuss this issue. Some of the amendments being tabled on Committee Stage are also rather tangential to the direct purpose of the Bill and it might be worth examining the issue of jurisdiction also.
I am glad to have this opportunity to speak on the Bill, which I welcome. It will introduce a positive approach with more openness and transparency with regard to decisions in family court cases and child care cases. I am conscious of the concern about this issue.
In general, the public is not aware of the details of decisions in such cases. The in camera rule originally was introduced for a good reason, which was to protect individuals and children in particular and to ensure they would remain anonymous and that the decisions, which in general are very personal and private in such areas, would remain within the system and not be made available to the public. This was the thinking behind the in camera rule but there has been a call for a long time to have it changed and adapted. I was made particularly aware that this was a concern, particularly of fathers, during the recent referendum campaign on children's rights. I do not know whether they are right or wrong, as I am not familiar with family court or child care cases, other than what I read or hear. However, the steps being taken with this legislation will ensure there is greater transparency and the public will be informed of the decisions.
I looked at some figures produced in the context of last year's Bill on the Courts Service and in the area of family law, I note that in 2011, there were 1,352 applications for separation and 3,354 applications for divorce. In general, the public is aware of neither the content nor the details of such decisions and it would be a very good thing were this information available, albeit with protections for the anonymity and privacy of the individuals concerned because they are special cases. While there certainly is a public interest factor, in general their privacy must be protected and those details are particular to these individuals. I note the Law Society has welcomed the move in this regard provided for in this Bill, which is positive. I share some of the concerns that were raised previously as to who will make decisions on when bona fide members of the press can or cannot be present. It is important for the Bill to contain clear guidelines in this area. However, the legislation makes it clear that judges will be able to prohibit press access when they are satisfied it is in the interests of justice to do so or is necessary to preserve anonymity.
Section 6 will insert a new section to prohibit the broadcast or publication of matters likely to lead to the identification of a party in family law proceedings or in child care cases. I was conscious, when considering this subject and the issue of the present state of broadcast and social media, that there are so many platforms from which information can get out and it will be important for the Bill to provide for serious repercussions. In this context, I note fines of up to €50,000 or imprisonment for up to three years can be imposed and it is important to provide for such sanctions because this is a serious issue. While such details may be a story to some people, it is private information relating to individuals, which can be sensitive and could have a serious impact on them were it made publicly available. Nonetheless, this is a positive reform which is to be welcomed. I look forward to reading about and hearing of information from family law and child care cases in order that the public be made aware of decisions that are made in the courts and which are not available to them at present. A previous speaker mentioned that since the introduction of divorce in this country, one does not hear about it any more. Consequently, in the public interest, this is a positive Bill which I welcome and look forward to further contributions in this regard.
Fianna Fáil has mixed views on this Bill and while we welcome this debate in this House, I will be opposing it because my party probably is more against it than for it. That said, it is an issue that should be debated in this Chamber. Perhaps Members will be able to tease out some of their difficulties in this regard on Committee and Report Stages.
While I will not labour the point, it would be remiss of me to let this opportunity pass without alerting the Minister - if he needs alerting - to the deteriorating situation with regard to the problems with the Garda, the Garda Representative Association, GRA, and the Association of Garda Sergeants and Inspectors, AGSI. Having listened to the Minister's input on "Drivetime" and to news reports, I consider it to be of great public concern that the Minister might address this issue before it deteriorates any further.
On a point of order, I am not sure what relevance this has to the legislation.
It is not relevant to the Bill.
With all due respect to Senator Bacik, she deviated substantially from the Bill and I-----
With respect to the Senator, I was speaking about reform of the courts.
Yes. Are issues of law and order not of relevance to the Bill?
That is pushing it.
I said I was not going to dwell on it and-----
The situation with Garda sergeants and inspectors is absolutely not appropriate.
Through the Chair, please.
On a serious point of order, it is not appropriate for any Member to speak about An Garda Síochána on a Bill of this nature. It simply is not appropriate.
That is a matter for the Chair to decide.
I suggest to the Acting Chairman it is not appropriate and seek a direction on it.
While I thank the Senator for his help, I will rule on my own.
With respect, as I stated, I simply wished to mention the matter. I am surprised my colleagues have become so hot and bothered. It obviously is a very serious issue.
The Senator should return to the Bill. I have given him some latitude.
I will return to the Bill but I wish to alert the Minister regarding this serious drochmheas, as we call it in west Cork, rank and file gardaí have on the ongoing situation. I will leave it at that but I have raised questions in this Chamber on the subject previously and did not get responses. The matter is ongoing and I consider it to be spiralling out of control. It is deeply worrying from a law and order perspective.
Please return to the Bill.
While I will respect the ruling of the Acting Chairman, when a Minister's presence in the Chamber offers Members an opportunity to raise matters of huge public concern, it is important that they do so.
I have given the Senator some latitude and request him to return to the Bill.
I will return to the Bill.
The Fianna Fáil spokesperson on children, Deputy Troy, has published an in camera rule in child care and family law proceedings Bill 2013, which throws open windows on family law proceedings that have remained hidden for too long. This Bill, which is being promoted and advocated by my party, has greater transparency without jeopardising the need for sensitivity in respect of the identity of the family involved. As I stated, this Bill can be used as a platform without throwing out the baby with the bathwater entirely when trying to tease out the Bill's positive aspects, as well as addressing some of the major concerns held by my party and me. Fianna Fáil intends to submit a series of amendments in this regard.
It is not too long since the referendum on the rights of children was held. While it was something for which I advocated for a long time - this relates to an extent to children's courts and the law relating to them - I was deeply concerned by the poor turnout and the unconvincing swathe of opinion in favour. While I had thought the vote would be carried by a substantial majority, this did not happen and much remains to be seen as to where, as a society, we are going in this regard. A major concern is that the Bill proposes to amend the in camera rule to introduce greater transparency in the administration of family and child care law by allowing press access to the courts in family and child care proceedings. The trick in this regard will be to ensure that Members get the balance right. Unless they do, I am unsure whether it will be favoured by journalists, leading practitioners or the public and it could be a recipe for disaster. I simply am spelling out Fianna Fáil's concerns and warnings in this regard and I listened to the comments of my colleague, Senator Walsh, who spoke first on this side of the House.
While I acknowledge my time is extremely limited, I wish to comment on the proposed increase of the monetary limits of the District Court and the Circuit Court. I personally welcome this aspect of the Bill, because it is a good idea.
Considering the enormous delays in our higher courts, the notion of increasing the jurisdiction of both the District Court and the Circuit Court will ultimately lead to a reduction in the burden of legal costs and, in addition, will free up the delays in the courts system, the backlog of cases, etc. When I commenced practice as a solicitor, the limit given to the District Court, subsequently increased, was of the order of £750 in old money. That was the old Irish pound, which became the punt and then the euro. The proposed increase in the jurisdiction of both the District Court and Circuit Court, as set out in this Bill, is very welcome. I would be so bold as to say it should be under constant review, and would have no objection to the limits being increased even a little more. The most efficient, cost-efficient and user-friendly type of court to the ordinary citizen is the most local, namely, the District Court, followed by the Circuit Court. There are delays and problems for many people in getting into the higher courts and if the logjam in those courts can be reduced in any way that would be an important development.
I also wish to make the point-----
It is time.
I will conclude on this point. During the years I have been studying and practising law I have found the quality of the judges who have been appointed in the past 15 to 20 years has improved immeasurably. There are now some excellent practitioners and we have some fine judges in all the various courts, especially in the District Court and the Circuit Court. They are very well capable of dealing with an increase in jurisdiction both in the civil law area and also in the criminal law.
The Minister is very welcome to the House. I also welcome the Bill, concerning which I will touch on a few points, one relating to family law and the in camera rule. My concern is that this needs to be handled very carefully and the reason I say this comes from my own experience. As a legal practitioner, unfortunately I had to deal with two suicides, one coming 24 hours before an application for a barring order was heard. The person was due at a District Court hearing on a Wednesday but committed suicide the night before the barring order application. For that reason I am very concerned, because it is already a traumatic experience for people to be in court on a matter of family law, let alone having to face an additional worry about the in camera ruling. It is important the message should go out that it is only in exceptional circumstances a hearing would be opened up. The impression should not go out that every bit of information will be put into the public domain. We should be very careful in how the Bill is dealt with and how information is given to the media in regard to this issue. It is very important that people do not read it the wrong way.
I refer to the increase in the court limits which, as my colleague, Senator O'Donovan, noted, are welcome. The Minister referred to the 2002 Act, which allowed the increases to go higher than the figures he gave, but in the meantime the level of damages has actually come down. The figures the Minister suggested offer the right balance and I welcome that change.
The one area we need to examine is a problem we face in terms of the whole legal profession - the great changes that have occurred in the past four to five years in the work available within the profession and the great change in the need for processing this and bringing matters to a conclusion. I raise this in regard to the current time taken for dealing with the assessment of legal costs in the High Court. In fairness to both Taxing Masters, there is an enormous volume of work to be done. However, there is a problem. If I set down a bill of costs for taxation in a High Court today it will be October before it can be dealt with. This is at a time when people are under financial pressure in all walks of life and people in the legal profession are also under pressure. I realise this is not something the Minister can deal with immediately but we need to look at how to deal with it. The increase in jurisdiction in the coming three to four years will decrease the demand on matters being sent to the Taxing Master in the High Court, but in the intervening period there will be a substantial delay and we should see if we can find a solution to that problem and whether there is scope for same.
I apologise for mentioning this but even in cases where the State is on the other side, my understanding from colleagues is that the State will not enter into negotiations in regard to the bill of costs until the matter is listed for taxation. Perhaps we could take a great amount of work in that area away from the responsibility of the Taxing Masters if the State was prepared to enter into negotiations at a much earlier stage.
One area the Bill does not deal with is one we must return to, namely, the whole area of medical negligence where there has not been much reform in the past ten years. Costs in that area are still extremely high and there is a significant problem which must be dealt with by putting in place a better system. We have talked about payments in cases of medical negligence that would not come as one lump sum, which is something the Minister favours. That must be considered and we should do so at an early date.
The creation of a civil court of appeal is extremely important. The problem is that a large number of family law matters end up in the Supreme Court where they really do not belong. In addition, I understand there may be lay litigants on one or even both sides of cases that end up in the Supreme Court. If there was a court of civil appeal it could deal with much of that work. although a referendum would be needed. The Supreme Court was set up to deal with major areas of law but has been taken up with these matters. It could be used far more effectively and we would not have the great delays if there was a court of civil appeal. I realise the Minister is working on this but it is important to have a proposal introduced at the earliest date possible.
Cuirim fáilte roimh an Aire. Ach an oiread le Seanadóirí eile, táimid buíoch dó as ucht an Bhille seo a thabhairt isteach sa Seanad. Tá Sinn Féin ag tacú leis an reachtaíocht seo mar feicimid cé go bhfuil an Bille gearr, tá sé iontach tábhachtach - cosúil liom féin. Tuigimid freisin go bhfuil gá ann bheith cúramach i gcuid de na réimsí lena mbaineann sé. I welcome the Minister to the House and thank him for bringing this Bill to the Seanad in the first place. It is very important that he gives the House the recognition it deserves. Although the legislation is slim it is of considerable value. My party has some concerns in regard to the need for safeguards, as was outlined by other Senators, but we are broadly supportive of this legislation and will vote in its favour.
The Bill has two primary purposes, both of which we support. The former is to reduce the application of the in camera rule in order to allow for reporting by the media of the facts in cases of child and family law, provided identities are respected. This is an important change, one which can increase transparency and, we hope, public faith in the judicial system. I will return to this point.
The latter concern is to increase the monetary jurisdiction of the District Court and the Circuit Court, which should allow for a reduction in the fees being charged to clients and we hope, the costs of litigation overall, as in the long term this may ease pressure on the higher courts. We will also support this part of the legislation.
The Minister will be very familiar with the area of child law. He, quite literally, wrote the book on it. It is an area which requires great care and sensitivity and the same can be said about family law. The key consideration in any such judicial proceedings involving minors should be that the identity of the minor is protected. Failure to ensure that this protection is vindicated can lead to very considerable difficulties, pressures, stresses and to adverse treatment of vulnerable young people, which clearly needs to be avoided. Such protections need to be preserved. However, the application of the in camera rule has been unduly problematic and has limited the level of transparency in the system to the point where the faith of ordinary citizens in the system has become a serious issue, perhaps with some justification.
The role of the in camera rule most recently came into focus in the context of the child death review report. In August 2012, Dr. Aisling Parkes of University College Cork noted that the authors of that report pointed out that this rule should not be taken to mean that the operation and actions of the court should be kept secret. She stated, "...the report claims that allowing this veil of secrecy to exist can only serve to undermine public confidence in the childcare system, which has already had huge questions marks raised concerning its operation." There was particular concern about the manner in which the HSE was using the in camera rule to frustrate inquiries about children who had died in its care. It is believed that the HSE interpreted this to mean the files could not even be made available to the then Minister of State with responsibility for children and youth affairs, Deputy Barry Andrews, and to this review group. The author of the report, the esteemed child law expert Dr. Geoffrey Shannon, noted that the lack of co-operation from the HSE had delayed that report. Given the seriousness of these matters and the less than satisfactory role of the HSE in several of these cases involving children, such as in HSE v. McAnespie, this is very regrettable.
The difficulty that has been created vis-à-vis child law is that very little is known about what happens behind the closed doors of the courtroom in child care proceedings. Many of the key decisions are taken in lower courts and the number of written judgments is, therefore, extremely limited. A huge number of cases go through these courts, with very serious ramifications. For example, in 2011, 972 supervision orders were granted at District Court level and 2,287 care orders, including interim care orders, were granted. There were 1,064 child care order appeals made from the District Court to the Circuit Court, with 840 orders made. This leads to a lack of consistency across various courts and a certain degree of mystery surrounds this area of law, except to a small number of professionals who have regular experience of District Court child care proceedings. In this context, Dr. Parkes noted the following:
For example, there is no information available indicating how much weight the judge attaches to expert/social reports or to what extent the child has a voice in such proceedings. Furthermore, there is little reliable statistical data available relating to such cases. Indeed, the appropriateness of the primarily adversarial nature of these proceedings is questionable and some would advocate a more inquisitorial process where the best interests of the child are at issue.
Likewise, with family law, while the lack of consistency is less of an issue, there remains a concern about the transparency of the system. The foreword to the report of the Family Law Reporting Project Committee to the board of the Courts Service notes that:
Increased awareness of what goes on in family law courts was seen by the Committee as a crucial prerequisite for a greater level of trust in the judicial determination of family law disputes. From its consultation process, the Committee was left in no doubt that past restrictions on the reporting of family law cases has led to significant levels of suspicion and resentment, by men in particular, and a belief that hearings ‘behind closed doors’ meant that perceived injustices ran on unchecked by any requirement of transparency.
It is clear that this is a very necessary and positive step. The example of how cases involving sexual offences are reported, in the way that identities are protected but the facts, in so far as possible, are recorded, pays testament to the value of this principle. However, the legislation is somewhat light on detail, particularly in terms of safeguards. There ought to be greater safeguards in place with regard to the reporters who will be permitted to attend such proceedings and the manner in which they will be able to report. While the safeguards in sections 5 and 8 are welcome and comprehensive, I note that the meaning of a bona fide representative of the press is not defined in this Bill, nor does it set out the terms under which a member of the press may attend a family or child care case. I believe "bona fide" should be defined and that members of the press who will be in attendance should be subject to some form of scrutiny. The Minister should clarify his rationale for not making this clear.
The change to the monetary jurisdiction of the District Court and the Circuit Court is a positive step, particularly given the fact that two decades have passed since the review. Anything that leads to a reduction in fees, thus reducing the costs for ordinary families and businesses in taking cases, is welcome and indeed, we hope that the knock-on effect of this will be to reduce the costs for the State in the longer term.
I have one minor query on this section, however. I note that the Bill repeals sections 13 to 18, inclusive, of the Courts and Court Officers Act 2002, which was never commenced. These sections had proposed to change the monetary jurisdictions to €20,000 and €100,000 for the District Court and the Circuit Court, respectively. This legislation increases the jurisdiction to €15,000 and €75,000, respectively. The Minister might clarify the rationale for this and explain why he has preferred this more modest increase to that contained in the 2002 Act.
I also note the comments of the Law Society which is concerned that the District Court and, more particularly, the Circuit Court, will not have enough resources to deal with the pressure which will inevitably result from the dramatically increased workload. There may be a need for more judges and more court staff to avoid delays, given that there is already too much pressure on the system. The society has called on the Minister to provide the resources necessary to ensure that the full benefits of this legislation can be felt. However, queries and concerns aside, we welcome this Bill, which will increase transparency and accountability within the judicial system.
I thank the Senators for their contributions, some of which were very wide-ranging. The benefit of this sort of engagement is that it allows us to reflect on the provisions of a Bill and look at the issues that may need to be addressed or teased out further. It also gives an opportunity to Senators to raise other issues of relevance to the courts system.
Senator Walsh raised the issue of the judicial council Bill, which has had a somewhat long history. That Bill was to have been published by the previous Government and is part of the current programme for Government. Substantial work has been done on it and we are now dependent on the Attorney General's office to complete the work on the Bill. It is on a list of Bills that are awaiting publication. I regard it as an important measure and while I hope that we will see it later this year, that will depend on the capacity of the Attorney General's office, in the context of the Government's very large legislative programme.
Senator Walsh also made reference to the importance of information on how the courts hear and determine cases and similar references were made by other Senators. I agree that it is important that more information be made available as to how the courts hear and determine cases. Reference was also made to judicial accountability. Members of the Judiciary are independent and are accountable to no-one other than the higher courts, to which their decisions may be appealed. Transparency is important because it ensures that there is public knowledge of how issues are being addressed within our courts system. Access to information ensures that, should it appear that any issues of concern are arising out of the manner in which family or child care law, for example, is being administered within the courts system, the general public, the Government and Members of this House are informed. This means that any necessary legislative corrective action can be taken. Unfortunately, for far too long, this area has been shrouded in mystique and secrecy, other than for members of the legal profession, particularly those who work in this area. It is healthy that we would bring a greater degree of openness and transparency to how our law is being administered.
Of course, as Senators have said, this is a balancing act. My initial view, as a lawyer working in the family law area, was that a full in camera rule was necessary to protect peoples' privacy and to ensure the fear of a violation of privacy did not act as a barrier to those who might seek help in the courts obtaining that help.
Over the years, having observed family cases and participated in them, I concluded that there is a substantial lack of public information as well as a lack of information on the part of the Government and Members of both Houses as to how the law is administered. Unfortunately if the law is being administered in a way that exacerbates rather than ameliorates people's financial of family difficulties and if it is being administered in an erratic or inconsistent way, there is no mechanism of oversight of this. A degree of transparency provides some assistance in that regard.
Senator Walsh and others made reference to family courts. The programme for Government calls for the provision of a separated integrated unified system of family courts. It is the Government's objective to hold a referendum in the autumn to establish on a constitutional basis a court of appeal which will include both divisions of civil appeal and criminal appeal, and also to establish a separate system of family courts. The objective of holding referendums on both these matters is a very adventurous objective to achieve by the autumn, but we are working to that timetable and I hope we will be able to produce the necessary legislation to do so. It is in the public interest that we have constitutional provisions to establish a court of civil appeal. The huge burden of cases awaiting hearing in the Supreme Court is unacceptable and it is unfair to those who rely on our courts that when they have been through litigation in the High Court they may have to wait two, three or four years to have an appeal determined in the Supreme Court. I do not believe that is right or appropriate and clearly a court of civil appeal would result in many cases that would otherwise have to go to the Supreme Court being dealt with, determined and finalised at the court of appeal level. I look forward to bringing proposals before both Houses on that aspect.
Senator van Turnhout raised a number of issues. I agree with her that it would be very helpful if judgments, as they can be under the current legal system, delivered by District Court and Circuit Court judges in the family and child-care area were written judgments. Unfortunately written judgments from both of those courts have been few and far between. There is no reason for not giving written judgments. I understand and accept that the volume of cases determined, particularly at District Court level, may raise difficulties for judges producing written judgments in every case and I am not suggesting that. However, there are appropriate cases where written judgments should be made available. Certainly there have been some in the District Court in the child-care area, but there have not been enough of them having regard to the complexity and volume of cases dealt with in the District Court. In the Circuit Court there have been a small number of instances of written judgments delivered. It would be helpful if there were more.
By providing for greater transparency through media reportage at least ex-tempore judgments will be published. This will give people an insight into the decision-making processes and the reasoning applied. It will allow legislators and others to assess whether there is a consistency of approach in determining such cases and the insight necessary in dealing with issues relating to the welfare of children. Ultimately, in the context of family matters, this is an interim reform dealing with transparency issues and the new structure of family courts the Government envisages will usher in a very new and different era. It will apply to family and child care cases.
Senator van Turnhout asked about training for lawyers dealing with children's cases. There is a broad range of other issues relating to that, including training of judges to deal with child-care and family cases, and the role of the existing guardian ad litem and its importance. We are giving consideration to all these issues in deciding the structure of the new family-court system to deal with this area. We are considering providing for a more inquisitorial rather than adversarial approach to be incorporated in legislation to accompany any new children's courts established, should there be support for their establishment in a referendum.
The Senator asked who would make applications as to whether cases should be heard in public or private, or who would be admitted. The essential approach of the legislation is that cases will be heard in private but that the media will be admitted - the general public will not be admitted. Who represents the media? Bona fide representatives of the press is a phrase that has been used without creating any difficulty or mystery in other legislation. As mentioned the legislation relating to sexual offences, including rape provides for the media to be admitted, but the reportage requires certain anonymity. The concept of bona fide representatives of the press has been used in other legislation. It means people who are genuinely journalists working in the broadcast or print media, or the online media as we now have it. That has not given rise to any difficulty of interpretation of knowledge. I do not believe we need to spell out in any greater detail who they are.
It is clear in the legislation in circumstances where it is sought, for example, to have the media excluded from a hearing - from the totality of it or simply for a portion of evidence or some aspect of it - that can be done either by a judge on his or her own initiative or an application can be made by a party to the proceedings which in a family law case would be the husband or wife or in a child-care case the application could be made, for example, by a health board or the guardian ad litem representing a child or by the parents of a child who are defending such proceedings. Where an application is made to the court it would then be open to the court to determine whether to exclude or otherwise restrict the attendance of representatives of the press or whether to simply prohibit or restrict the publication or broadcasting of some particular evidence or any part of such evidence. In deciding whether to do any of those things, the court would be bound by the criteria that are detailed in the legislation that I set out in my speech. They would start off from a perspective of seeking to promote public confidence in the administration of justice.
An element of public confidence is that it is transparent, but another element of public confidence is that those who require access to the courts in these areas are not - for fear of publicity otherwise - prevented or see it as a barrier. Particularly in family cases as opposed to child care cases often very detailed information about an individual's personal finances or business, or the commercial dealings in such business, might be a subject of debate or disagreement between estranged spouses or indeed in the future estranged civil partners. If there is a disagreement between people who were formally intimate with each other and living together either married or in a civil partnership, it is important that the revelation of that information in the course of any row that might take place does not effectively destroy the business of an individual because business information that should remain confidential finds its way into the media.
There is a range of issues. To take another area of concern, it may well be that where family cases being taken in the District Court outside a large urban area, publication of any nature of any information about that family case would in fact destroy people's anonymity because it may be well known in the locality that they have a family difficulty and a publication of itself could do further damage to them or their children. It is intended that the Judiciary would have a broad discretion in applying the specific factors in the legislation in determining the controls to apply in these circumstances. We will have to see how the legislation works in practice.
It is clear from the legislation that no court can automatically decide in every case that the media will be excluded. Each case will have to be determined on the facts. In circumstances where there is an application for the media to be excluded and another party thinks they should be allowed to remain, there will be a facility to appeal that as a preliminary issue. The courts will have to put in place appropriate rules of court to ensure that if that is an issue, it can be dealt with swiftly in order that the substantive family or child care case hearing is not unduly delayed. These are issues that can be addressed properly in rules of court by the courts rules committee and there is no particular reason that they should not be so addressed.
Senator van Turnhout raised a number of issues about circumstances in which there are breaches of the Children Acts and what she described as malpractice, for example, people's and children's names being revealed. First, if these issues are occurring, they should not occur. There are very strict rules relating to privacy matters. I recall a number of years ago when the Circuit Court initially got family law jurisdiction it was a practice that, although everything was supposed to be heard in camera, the court registrars would emerge into the hallway and shout out the names of the husband and wife whose case was about to be heard. That was easily remedied by the court list listing people by their initials. Indeed, the court lists also have numbers beside the initials. It is a number of years since I have been in the Children Court but if there is a problem with names not being kept anonymous and there is no system in place to ensure this issue is properly dealt with in accordance with existing legislation, it should be addressed. I will ask my officials to write to the Courts Service to raise that issue. It can be readily remedied.
Other issues were raised by Senators. Senator Bacik made reference to the Court of Criminal Appeal, which I have dealt with. With regard to the District Court jurisdiction on the criminal side, I believe more can be done to provide for alternatives to prison sentencing. Prison sentences are very important. Prison has a very specific role in circumstances where people commit serious crime and where there is a necessity to protect the community, but we can use alternatives. I thank the Senator for her comments about the community return programme. This was an innovation I initiated following my appointment as Minister. It is working well and is facilitating the release of some prisoners from prisons who have not yet reached the period when they should be released pursuant to the remission rules but where they have been assessed as posing no risk to the community. They are individuals who have behaved well in prison and are agreeable to an earlier release in return for doing community service. This both saves the State money in the context of the individual no longer being within the prison system and is a benefit to local communities. That system is working well. I look forward to receiving and reading the report of the Oireachtas joint committee that was published today in respect of prisons and sentencing.
However, I do not agree with Senator Bacik's view that we should further curtail the powers of the District Court with regard to the imposition of possible sentences of imprisonment. The District Court is a court of limited jurisdiction and it has important sentencing powers. If we were to limit those powers further, the effect would be that more of the serious offences would have to be dealt with at Circuit Court level. It would create difficulty for the Circuit Criminal Court and would further and unnecessarily delay hearings. Indeed, it might render those hearings unnecessarily more expensive to the State in the context of the criminal legal aid scheme. I would require a great deal of convincing about changing the law in that regard.
To return to something Senator Colm Burke said, people are hugely stressed when going into the family court system. Usually, where there are major family difficulties there are many other issues giving rise to stress. The actual attendance in court is not the primary stressful event. It is very sad to learn that two individuals who were in family difficulties, and whose issues were being dealt with within the court system, have committed suicide. I do not know why that happened. We do not always know what happens in people's heads to result in such a tragedy. This is why we must have the right balance. We must ensure that what we do here achieves the right balance for people who are under pressure, who are distressed because their marriage is in difficulties, who are possibly stressed because they are in financial difficulty and where there might be a range of stresses, for example, they might be suffering from a psychiatric illness or a personal breakdown. If this new legislation is enacted in its current form or Senators come forward with constructive amendments and they are incorporated into it, I intend to monitor how it is working. If it turns out that it is not being applied in the manner intended or if it gives rise to unintended consequences or difficulties, it is important that this is addressed as early as possible. I agree with Senator O'Donovan and others that we must get the balance right. That is crucial.
Senator Colm Burke also raised the issue of the Taxing Master and legal costs. It is important that matters coming before the Taxing Master are heard within a reasonable period of time and that the adjudication or decision on the taxation of legal costs is delivered within a reasonable period after the hearing has taken place. I also believe the State should take steps to resolve legal costs issues, where appropriate, in order that unnecessary expense is not incurred by a hearing that might be unnecessary or an unnecessary burden is not imposed on the Taxing Master's office by matters being listed for hearing, perhaps being partially heard and only resolved thereafter. I accept Senator Colm Burke's concern that when orders for costs are made against the State, the State does not attempt to resolve those issues until the very last minute and that this issue is putting an unnecessary additional burden on the Taxing Master. I will ask my officials to write to both the Chief State Solicitor's office and the Attorney General to bring the Senator's remarks to their attention, with a view to asking that where orders for costs are made against the State, the State will constructively engage with a view to resolving those matters without unnecessary hearings in the Taxing Master's court or matters being unnecessarily listed for hearing in order that there is not an undue burden in that court and no obstruction for other matters that must be heard being dealt with.
As the Senator knows, it has been my view for a long time and it is also part of the programme for Government that we should enact legislation to put in place a better system for those who suffer catastrophic injuries when there is medical negligence. There is a need to move away from the lump sum procedure to periodical payments, so that if somebody has suffered a catastrophic injury we are no longer in a position where the financial assistance available to them is based on the capacity of professionals to predict how long they might live or a prediction as to the extent to which their condition might deteriorate. Regardless of how professional individuals are, we all know these predictions are not always accurate. The provision of periodical support payments that can be amended to take account of further unexpected developments arising from medical negligence or serious road traffic accidents is a far preferable system. The Government has approved the preparation of legislation in this area. It is being worked upon by both my Department and the Attorney General's office. I look forward to bringing that legislation to this House in the future.
I apologise to those Senators who contributed to the debate and to whom I have not referred. I hope I have addressed all of the issues that were raised. I thank Senators for being supportive of the legislation. As I have stated in the past, no one has a monopoly of wisdom in this or in any other area. The day on which we all believe we possess such a monopoly is the day we all get into trouble. In that regard, I will be very interested in any amendments Senators may wish to table for Committee Stage.
One question I did not answer is that which relates to why we have moved away from the position which was set out in the Courts and Court Officers Act 2002 and which was never brought into force. In other words, why are we providing for monetary jurisdiction limits of €75,000 rather than €100,000 in the Circuit Court and €15,000 rather than €20,000 in the District Court? The reason for this is that the relevant sections of 2002 Act were never brought into force as a result of, in the first instance, major concerns to the effect that the courts would not be able to cope with that huge leap in jurisdiction. The second reason, to which I referred earlier, related to concerns with regard to civil damages proceedings, the impact on claims and the levels of compensation which might be ordered. A huge issue arose in 2002 in respect of the sizeable additional resources the District Court and the Circuit Court would require if the leap in jurisdiction to which I refer had occurred. Unfortunately, the Government which introduced the 2002 legislation did not address that issue and it, therefore, remained in cold storage.
We carried out a very simple assessment in respect of this matter. We examined the 1991 legislation and considered how, having regard to inflation, monetary values had changed since. Based on inflation, the current maximum monetary value in the Circuit Court is approximately €38,000. If we had just increased it on the basis of the level of inflation that obtained in the period from 1991 to the beginning of 2013, my recollection is that it would have worked out at somewhere in the region of €66,000 for the Circuit Court and that it in the context of the District Court it would have risen from €6,300 to approximately €10,560. Those were the inflationary provisions. We then considered a modest increase beyond these which would bring the courts back essentially to the levels at which they could determine cases in 1991, with a degree of leeway to take account of the fact that there is unlikely to be further courts legislation for at least two to three years. We concluded that €75,000 would be an appropriate monetary jurisdiction level for the Circuit Court. This almost doubles its jurisdiction in practical terms and the jurisdiction of the District Court will be almost trebled. As has been noted, we have a large number of very good, competent District Court judges who are well able to deal with litigation up to the €15,000 mark. I have no doubt about that fact. In addition, there are many good and competent Circuit Court judges who can rule in this area.
We obtained some information on this matter and I was advised that between 30% and 40% of cases currently being litigated before the Circuit Court related to claims of €15,000 or less. Those cases will now be switched to the District Court. The District Court is, in a sense, the only court which will be obliged to shoulder a large additional burden. It will be taking responsibility for the cases to which I refer and which are currently before the Circuit Court. We will be obliged to ensure that it will have adequate resources available to it. On foot of the fact that a huge chunk will be coming out of the Circuit Court, there is new work coming to it which would otherwise have been dealt with in the High Court. Ultimately, I do not believe there will be a major additional burden in the context of the number of litigants coming before the Circuit Court. There will just be litigants dealing at higher levels. The advantage of this is that we will be relieving the High Court of a particular burden. This will not, however, resolve the problems relating to the huge backlog of appeals in the Supreme Court. That matter will have to be addressed by other means. When the backlog to which I refer is addressed, the level of appeals from the High Court to the Supreme Court will be reduced. Of course, there will still be appeals flowing from the Circuit Court into the High Court.
We considered this matter in a holistic fashion. The hiccup relating to resources may take effect at, for example, District Court level. When the legislation is brought into force, we will monitor the position in that regard. If the experience of the President of the District Court and the President of the Circuit Court in respect of the legislation indicates that there is a resource issue, I have absolutely no doubt that they will communicate that fact to the Government, either directly or through the Courts Service. We will take appropriate steps to address the matter at that point.
I thank Senators for their contributions and look forward to dealing with any amendment they may wish to table when Committee Stage is taken after the Easter recess.
When is it proposed to take Committee Stage?
On the first sitting day after the Easter recess.
When is it proposed to sit again?
Ar 10.30 maidin amárach.