Analysis:The restricted admission of some media to proceedings aimed at having the genetic parents of two children born to a surrogate mother listed on the children's birth certificates is a small but welcome breach in the absolute prohibition on media reporting of family law and related cases prior to judgment.
That blanket ban, about which opinion in the legal profession and judiciary is divided, has worsened in recent years and has contributed to often uninformed speculation and discussion about what really goes on in family law courts.
As a result of the ban, the media cannot attend and report on family law cases, in contrast to rape cases where they can attend and report on the basis they only identify the parties in certain circumstances.
Also, not all family law judgments are published on the Courts Service website. This adds to public concerns as, by their nature, judgments are just a summary of facts and issues raised in the court hearings.
Rights of children
The proceedings being heard by Mr Justice Henry Abbott, brought under the Status of Children Act 1987 and the Guardianship of Infants Act 1954, raise important issues concerning the rights of children and genetic parents in surrogacy cases.
The case is the first of its kind here and the issue of the status of children born to surrogates has stimulated much public debate and controversy. The ban on reporting family law cases was modified by the 2004 Civil Liability and Courts Act, which provides that certain prescribed persons, including persons nominated by the Courts Service and academic institutions, have permission to cover such cases.
Those prescribed persons include solicitors and barristers but do not include journalists. While some hold the view that a journalist who is also a qualified barrister or solicitor may be made a designated person, that issue has not been clarified.
Pilot project
The Courts Service had set up a pilot project, run by Carol Coulter, under the 2004 Act to report on family law cases which made clear the issues in such cases could be responsibly reported without infringing the anonymity of the parties.
Regulations made under the 2004 Act also mean the Minister for Justice can nominate anyone else, including journalists, to report on family law cases.
The Minister said he would reform the in-camera rule in family law and such reform could be effected under the regulations – as recommended by Dr Coulter – without any need for legislation.
While Mr Justice Abbott’s ruling will allow some of the media, even without regulations, to report on major issues of public importance in the surrogacy case, the fact remains that regulations would clarify the situation for other cases.
Ray Ryan, for the Irish Independent and Irish Times, reflected the views of not just those newspapers but many others this week, when he argued that the “shutting out entirely of the press” from cases raising issues of public importance is a disproportionate measure under the European Convention on Human Rights.
