The law and the media are allowing abuses in childcare cases to stay hidden

Opinion: State agencies normally protect the veil of secrecy with extreme menaces

Charlie Flanagan raised some interesting issues about in camera protections in childcare proceedings in an article published in The Irish Times on Monday last. His main point was that media dissemination of images of two Roma children separated from their families by Garda/HSE interventions may have risked harming the children in a manner not outweighed by any public interest argument.

There was clearly a public interest in publishing details of this story, which shone a welcome light on State agencies exercising enormous powers over vulnerable families and individuals. But there was no public interest involved in publishing images of the children. Far more useful would be images of the Garda officers and HSE personnel responsible for interfering with the two Roma families.

It would be unsurprising if citizens were confused. On the one hand, media appear reluctant to make the slightest attempt to inquire into what really goes on in childcare or family law hearings; but, as soon as a particular case crosses some vaguely defined line of publicity, journalists can become almost reckless in their willingness to publish just about everything.

Veil of secrecy
The in camera rule is either enforced by the judge in a particular case, as a matter of discretion, or at the behest of one of the parties involved. Normally, State agencies protect their veil of secrecy with extreme menaces, but in this instance possibly thought restraint the better part of self-preservation. Hence, the media felt able to step out of the shackles of cowardice which normally constrain coverage of these matters.

This week we’ve been privy to discussion of several potential breaches of the letter and spirit of the in camera rule when we learned that two judges became embroiled in discussing a particular case in which only one had any legitimate involvement. At stake here, of course, is far more than a breach of the in camera rule: there’s also the suggestion of improper interference, which has now apparently been disposed of by a judicial inquiry which found that no harm was done.

This episode has many oddities, not least the degree of interest which appears to have been provoked among the political and legal professions by a ruling that transferred custody from a mother to a father. The custody traffic is almost invariably in the opposite direction, and no one takes the slightest interest in querying this.

It would be naive to believe that judges do not discuss family law or childcare cases with one another all the time, but here the judge seemed to feel a line had been crossed. Mr Justice Henry Abbott was not, as far as I understand, complaining about a breach of the in camera rule, but clearly believed his judgment was being improperly questioned.

Technically, Judge Desmond Hogan could in this instance be deemed to be in breach of the in camera rule, since legislation governing family law hearings does not specify what precise restrictions should apply, but leaves this to the discretion of the judge in a particular case. Many judges interpret the rule as expressly forbidding discussion of family law proceedings with any external party.

Child-protection cases are governed by a more explicit provision. The Child Care Act 1991 stipulates that “no matter likely to lead members of the public to identify a child who has been or is the subject of proceedings . . . shall be published in a written publication available to the public or be broadcast”. However, the Act also permits a court, “if satisfied that it is appropriate to do so in the interests of a child”, to dispense with all or any aspect of the secrecy requirement.

Media policy
In general, the media policy in this area is to treat virtually all proceedings involving children as out of bounds if there exists the slightest possibility of any of the parties becoming identifiable in a piece. Often it's clear that the people being protected are not the children or their families but those acting for the State – social workers, lawyers and judges. This narrow interpretation has had a deeply chilling effect on legitimate journalism, turning family law and children's courts into, in effect, Star Chambers, and leaving many citizens bereft in the face of grotesque abuses of their human rights.

During last year’s children’s rights referendum, Alan Shatter made great play of his intention to reform the in camera provisions. We’re still waiting. The democratic requirement is not met by handpicked rapporteurs being allowed selectively to report cases on a random basis. There’s no good reason why journalists cannot be trusted, here as elsewhere, to tell the public what the public needs to know. Only those with things to hide have anything to lose.