The in-camera rule, which prevents any publication of proceedings in family law cases, should be changed, a conference of the Family Lawyers' Association on the subject was told at the weekend.
Dr Gerry Byrne, a child psychiatrist who gives evidence in family law cases, said it should be modified for the protection of children, for the maintenance of professional standards and for the common good.
Dr Byrne told the conference in Mallow that his evidence was often not required because the case was settled. However, where the cases involved emotional abuse or allegations of child sexual abuse, he was prevented by the in-camera rule from going anywhere with his evidence, even when he felt the matter should be pursued in the interests of the children.
In one case where he was recommending the children be in the father's custody, the case was settled, with the mother gaining custody. "I was aghast. The mother suffered from alcohol dependency syndrome and the 10-year-old son used to go into her room at night to check whether she was still breathing," said Mr Byrne. Yet there was nothing he could do, he said.
Allegations of child sex abuse were often made in family law cases, but the health boards were not parties to the proceedings and did not seek to be. "The parents may decide to settle. I can't send my report to the health board because of the in-camera rule. How am I to ensure that the welfare of the child is protected?"
He said he had sought judicial advice and been told to send the reports directly to the judge in such cases, but his colleagues might not be aware of this.
He said that the rule also prevented informed public comment about what went on in family law cases. "There are parents who pursue repetitive court proceedings which in my view are emotionally abusive in themselves," he said. "Alternative dispute resolutions should be available."
Reporting of these cases would also enhance peer review of the professional standards of the professionals involved, both lawyers and experts, he said.
Ms Mary O'Toole SC said difficulties arose in other areas of law. "Sometimes people want to use material generated in an in-camera hearing in other proceedings."
This had arisen in relation to a fitness to practise hearing, where Mr Justice Barr ruled that medical reports generated by childcare actions could be used in a restricted way. It had also recently arisen in a case involving a complaint against a barrister to the Bar Council.
But the question arose in other types of cases, she said. She cited the case of a man who was selling a site to a supermarket. Matrimonial difficulties arose and the supermarket was concerned the wife might try to injunct the sale of the land, and asked to see the claims being made in the proceedings. However, it could not do so because of the in-camera rule and withdrew from the sale and went to the High Court. There the judge ruled that the family law proceedings could not be made available.
"If you have a judicial separation or divorce proceedings pending, you will have great difficulty proceeding with the sale of land or other property because of the in-camera rule. The in-camera rule creates a raft of other problems," said Ms O'Toole.
She said that on balance she was in favour of retaining the rule, but subject to reasonable reporting of the facts of the case, and resolving the problems with other areas such as conveyancing.
Ms Andrea Martin, a solicitor in RTE's legal department, said that the application of the rule was leading to a "geyser effect", where people were bursting to tell what happened to them in family courts and the public was dying to know because it was such a taboo area.
She favoured a mechanism where information about family law cases could come out in an ordered and constrained manner, subject to ethical considerations relating to people's privacy and the welfare of children.