Contemporary Legal Issues in Social Care

1. Contemporary Legal Issues in Social Care Law and Social Care

2. Some Topical Legal Issues • Law Reform and Family Law. • Family Law and the Courts- the In Camera Rule • Child Law-Express Constitutional Rights and the Guardian ad litem • Natural or Non-Marital Fathers and the Law • The Legal Position of Foster Carers

3. Awash with reports proposing reform • Law Reform Commission Report on the Family Courts LRC 52-1996. • Working Group on a Courts Commission Sixth Report November 1998 chaired by Mrs. Justice Susan Denham Judge of the Supreme Court. • The Joint Oireachtas Committee on Marital Breakdown 1985. • Adoption Legislation: 2003 Consultation and proposals for Change January 2005.

4. Family Law • Legal Poor Relation • Massive increase in Family law statutes and resulting litigation • Status of family law reflected in listings and delay in case being heard in upper courts. • For family law read family in crisis whether it be family break-up and adjudication of same or a childcare case. • This is being addressed with more case management in conjunction with court offices. • Training for judges

5. Publicity of Justice • Set out in Article 34 of the Constitution. • “Justice must be seen to be done • Can be restricted as set out by law and also some judicial discretion • S45 (1) of the Courts (Supplemental Provisions) At 1961 “Justice shall be administered otherwise than in public in …matrimonial causes and matters ..and minor matters • Family, child and criminal law sexual offence cases to protect the identity of the victim.

6. In camera Rule • Traditionally seen as hearing cases in private. • S45(1) of Courts ( Supplemental Provisions) Act 1961 – “Otherwise than in public”. • Referred to in every family law statute • Criminal Sanctions • Privacy protection. Right to Marital privacy.

7. In camera Rule • No uniformity in the way rule was applied by judges. • Some heard cases in their personal chambers • Others heard it in main court with closed doors • Some let limited personnel in e.g. lawyers, court personnel etc. others did not. • Some reporting in the popular media of cases with identity of parties hidden. • Also Law Reports. Great reporting to date of Child Abduction Cases.

8. Efficacy of the Rule • Childcare Act 1991 allows fines of up to €1290 and/or 12 months imprisonment on summary conviction. • Other Breaches are regarded as Contempt of Court and treated accordingly. • Fine and/or imprisonment.

9. Cases on in camera rule • Re/ McCann-v-Kennedy 1976-Pictures and names published re Custody/Access battle. Fines • PSS-v-JAS 1995-Child Abduction and Tug of love. Radio and Print media full disclosure. Fines • MP-v-AP 1996-Disclosure by litigant to 3rd party. Admonition and undertaking not to do it again • M-v-Drury 1994-Litigant disclosing uncontested fact to media. No censure.

10. Why we need to transparency • Logic and Reasoning of decisions. • Results of cases so that families can be aware of outcomes. This will enable people to make informed decisions on the direction of their own and their children’s lives. • Public unaware of extent of issues. • No analysis of how to resolve family problems. • No lobbying/outcry to deal with issues and improve situation of family law.

11. Reasons for the rule • To protect the privacy of the parties. • Allow evidence to be given as otherwise people might be circumspect in their evidence. The judge would get the full family picture. • Protects privacy of children. • Prevent inaccurate and partisan reporting.

12. Family law-In camera rule-Reform • Originally mooted by the Joint Oireachtas Committee on Marital Breakdown 1985 – transparency to prevent unfairness by judges. • Law Reform Commission-check on judicial process, public awareness for development of new policy, false rumours undermining the system. • Recommendations followed in present changes

13. Family law-In camera rule-Reform • Task force on Violence against Women wanted relaxation. • 6th Report of the Working Group on a Courts Commission November 1998 chaired by Supreme Court Judge Susan Denham • Previous reports had resulted in the setting up of the Courts Service and the improvements to the Courts which we see today.

14. Issues arising from Report • 4.17”Academic analysis and study of the courts is beneficial to the courts system. Facilities should be made available to academics to study the court process” • The report referred to practical considerations e.g. lack of facilities for court reporting and highlighted the “information gap” about the family law issues that arise in the courts. The public are unaware and cannot help resolve issues. Only practitioners aware. The report referred to “mystique” and “urban myth” attaching to family law cases.

15. Major point • Academics to date have been outside commentators. • Fence between system and academics • Availability of statistics and relaxation of the in camera rule to designated court reporters will allow more academic observation, accumulation of relevant first hand information, commentary, analysis and evaluation

16. In camera rule-Reform • Section 40 of Civil Liability and Courts Act 2004 came in 31/3/2005. • Practising or non-practising barristers and solicitors not involved in a particular family law case to sit in and listen to details of same, take notes and report. Other people were to be allowed in subsequently by Ministerial Regulation.

17. In Camera Rule- Reform • Ministerial regulation 13/7/2005 allowing for certain categories of people to apply to the minister for permission to attend family law proceedings. • Now registered family mediators, researchers of family law as nominated by the Law Reform Commission, Economic and Social Research Institute, Universities, Colleges and Courts Service together with any other persons authorised by the Minister for Justice Equality and Law Reform can be allowed into family law proceedings.

18. Other Reforms-family law • Accompanier to litigant subject to 7 days notice and direction of the court. • Court orders to be given to the prison and probation services, gardai, the minister for foreign affairs, Minister for Social and Family affairs, the Immigration Service, Credit Institutions and the revenue Commissioners.

19. Other Reforms • Complaints against family law practitioners to be dealt with by their disciplinary bodies-Law Society and Kings Inns. • Breaches of tax, social welfare and immigration legislation may be referred. • Register of judgements reserved. • Judges can place conditions on presence of new parties

20. Have the changes gone far enough • Alan Shatter- Member(s) of Media to be allowed in. • Nothing to stop report in media once available • Academic comment, analysis, and evaluation-needs funding. • Burden of statistical analysis presently on courts- www.courts.ie

21. Other issues • Children’s rights in Constitution. • Guardian ad litem • Guardianship for long-term Foster carers (over 5 years)

22. Degree in Applied Social Studies • 2004/2005 3rd years. • 1. A. Does the Constitution need to be changed in view of the UN Convention on the Rights of the Child. • 1. B.Should the rights of the child be given an expanded constitutional protection. • The Class members who dealt with these two points overwhelmingly argued that the only way to adequately protect children in Irish Society was to place children’s rights expressly in the Constitution. They highlighted the strong effect of Articles 41 and 42 protecting the family as an entity and parents and that the pre-eminence of these articles did not adequately vindicate the child’s individual’s rights.

23. Degree in Applied Social Studies • What rights should a natural father have, and how should they be protected. • Again the submissions from the 3rd year Degree in Applied Social Studies class highlighted the lack of status for the natural father and felt that in the child’s best interests that a natural father should have increased rights to vindicate their parental role. The class emphasized the importance of the child’s relationship with their natural father to support their proposals for more rights for natural fathers.

24. Relaxation of In Camera Rule • Hardly likely to throw spotlight on family courts and family law without proper resourcing for reporting and statistical analysis • Theoretically a rich lode of information should become available. • Throwing down the Gauntlet to us • Some funding for children’s research available.

25. What is needed. • Law Reform Commission: “(Recording) of inter alia multiple applications, any history of litigation by the family, the assets and income level of the family (to enable a determination of how the family assets were divided by the court) as well as issues relating to enforcement of court orders.”

26. What is needed • 6th Report of Court commission • “The availability of statistics and relaxation of the in camera rule to designated court reporters would allow more academic observation, accumulation of relevant first hand information, commentary, analysis and evaluation.”

27. Conclusions • Need for express children’s rights. • More use of Guardian ad litem procedure. • Better position for natural father at least to vindicate their children’s position. • Some legal status for foster carers – guardianship proposed.

28. Conclusion • Family Courts not just about law but the experience of families and children in Ireland. • Huge social issues to be illuminated in terms of the changes to family life and the lives of children.