If the Oireachtas is to be asked to rule on in-camera proceedings it must first be enabled to examine them

Opinion: At the moment deputies are prohibited from hearing what happens behind closed doors

Due, I believe, to a misunderstanding, several references to the former Fianna Fáil deputy leader Mary O'Rourke were removed, on legal advice, from my column last Friday. I believe my argument was misread as suggesting that Mrs O'Rourke had been involved in an improper attempt to interfere in a family law case. I made no such suggestion.

I noted in my column that an allegation of improper interference, made by Judge Henry Abbott against a judge and a public representative who transpired to be Mrs O'Rourke and Judge Desmond Hogan, had been dealt with by an inquiry conducted by two senior judges – Judge Nicholas Kearns and Judge Raymond Groarke. This inquiry found that Judge Hogan had indeed raised the family law case in question with Judge Abbott, in a conversation lasting less than a minute in the yard of the Four Courts in July 2010. The inquiry concluded that the encounter should not have occurred but had no material effect on the outcome of the case.

Judge Hogan told the investigating judges that he may have asked Judge Abbott “in a casual way” about the case, but had had “no solicitation or request to that end from any politician or from any party involved in or connected with the case in any way”. He said he had had “absolutely no intention” of interfering with the case or influencing its outcome, and deeply regretted that his query had given rise to any such apprehension.

Technical breach
Although both parents involved in the case named her in affidavits, Mary O'Rourke denies making any representations about the case. She does not, however, deny being approached by the mother. What I sought to highlight was that, on her own admission, therefore, Mrs O'Rourke may have committed a technical breach of the in-camera rule.

In-camera hearings are so called because they occur “otherwise than in public”. It’s forbidden to make public any details of any such hearing without the express permission of the presiding judge. I know of one editor of a national newspaper who, having been hauled before a court for breaching the in-camera rule, was informed by the judge that not only had he, the judge, the power to incarcerate the editor for contempt, but furthermore he had the power to prevent the editor’s incarceration being reported. Although judges have wide discretion concerning the extent to which they may permit details of in-camera cases to be publicly ventilated, many judges are known to forbid any details whatever being discussed with external parties, a category which includes public representatives.

Mary O'Rourke told the Irish Independent: "The mother came to see me, and she was fully entitled to do so . . . and we chatted for maybe 15 minutes. She told me her story and that was it." The point is that the mother was not entitled to come to see Mrs O'Rourke for the purposes of discussing her family law problems. A TD has no more entitlement to be told what goes on in a family court than a reporter or editor.

Over the years, not a few politicians have sought to deny the substance of what I was writing in this column about the malfunctioning of family courts – on the basis that no one can know what goes on because the courts are closed to the public and media. The implication was that they themselves had never spoken to anyone about what transpired in a family law case. If true, this would raise serious questions concerning the competence of politicians to legislate in this area at all.

By my understanding, officials in the Department of Justice may at this moment be engaged in drawing up proposals for reforming the in-camera rule, arising from Alan Shatter's undertaking in this regard. In due course, presumably, these provisions will come before the Oireachtas.

Public representatives are so called because of their capacity to become conduits for knowledge acquired indirectly concerning matters they may legislate upon. In relation to the in-camera rule, however, they can by definition have no such knowledge, since they are prohibited, like the rest of us, from hearing about what happens behind the closed doors of family courts. How, then, unless they have direct experience of family courts, could they arrive at reliable judgments concerning any formulation for reforming the
in-camera rule? To require them to address this question is akin to asking someone to construct an Ikea kitchen without reference to the instructions.

I have a proposal for avoiding this potential absurdity: that, in advance of reforming the law, TDs and senators be allowed, for a year, to receive constituents' representations on their experiences in family law courts. This would enable politicians to inform themselves by assembling a detailed picture of what goes on behind the veil of the in-camera rule. They would then be equipped to decide whether the proposed changes are sufficient to allay growing public concerns in this area.