The relaxation of the in camera rule in family law cases announced by Michael McDowell on Monday is inadequate, writes Vincent Browne
The family law courts have to be opened up to public, academic and media scrutiny so that we can be assured that justice is done, consistent with the privacy that should properly attach to such cases. There is some evidence that decisions made in the District and Circuit courts are hugely at variance with one another, applying different standards and different interpretations of the law
The barrier behind which the courts operate permits a wide discretion to judges in a manner that is unaccountable. Furthermore, some judges, according to reports, behave in a bullying and contemptuous manner to parties involved in such cases, and take decisions that are not just bizarre, but potentially or actually gravely damaging to children in whose interests they purport to act.
At present there can be no reportage at all of family law cases. No reportage that a case is being heard, what evidence there is in the case, the conduct of the case by the judge and the outcome of the case.
Occasionally, the law reports publish judgments in family law cases, disguising the identity of the parties, but other than that there is and can be no coverage. From behind that veil of secrecy there emerges stories of shocking injustices, some of them reported obliquely on the pages of this newspaper.
Men repeatedly complain that the family law courts are biased against them. Women regularly complain that judges are bullying, rude and, in some cases, misogynist. One can hardly be surprised given what we know of the utterances of some District and Circuit Court judges on issues to do with race and Travellers, for instance.
As citizens we have a right to know about the quality of justice administered on our behalf. This should not and need not involve the intrusion into the private lives of parties before those courts. But it is unacceptable that different standards should operate and the outcome of cases should depend so much on which judge the parties "draw" from the lottery of the court lists.
Some means must be devised to open up the family law courts to scrutiny that does not invade the protection of privacy the parties are entitled to. This could be done by having a junior barrister attend and doing a full report of the proceedings or a transcript being done and then edited. The suggestion that reporters generally would be permitted to be present during family law cases seems too extreme for, inevitably, some newspapers would abuse that access to the detriment of the privacy of the parties.
There is a suggestion that in a recent case a judge in the Circuit Court accepted a novel and controversial concept, Parental Alienation Syndrome (PAS) as a basis for deciding to which parent to award custody of a child.
Parental Alienation Syndrome, in an extreme manifestation, seems to be this: A child is hugely attached to one of the parents, while being alienated and not attached at all to the other parent. The basis for this alienation may be the influence of the attached parent. Where this is so, and where it appears that the child would develop an attachment to both parents if transferred to the custody of the other parent, this may be in the best interests of the child.
This, theoretically, might be valid in some extreme circumstances. But the chances of it going wrong are huge and for a judge to decide to take a child from the custody of a loving, caring and competent parent, to whom the child is very attached, and give over that child to the other parent, to whom the child has no attachment, would be a gamble of astonishing proportions.
And to do so on the basis of a theory that is challenged within the world psychiatric and psychological community would be an amazing arrogance. I understand that the theory is rejected in most EU countries, including Britain.
If it is the case that a Circuit Court judge decided on a custody case on the basis of this theory or something close to it, it is unacceptable.
The incorporation of an entirely new concept into the determination of custody cases should not be done at the Circuit Court level, if at all. If this is a case that can be appealed to the High Court, perhaps not much damage has been done, other than temporary upset to the parent affected and perhaps the child. But if it is the case that the Circuit Court has applied this new criteria in a case appealed from the District Court, then it is a different matter - there ordinarily cannot be an appeal from a decision of the Circuit Court when the Circuit Court hearing is an appeal from a decision of the District Court.
If it is the case that such a radical change in the criteria for determining custody cases has been decided in this way, then the case for opening up family law cases is all the more urgent.