Category: Family Law

Why the delay and confusion on domestic violence privacy?

The proposed Domestic Violence Bill appears to have made little progress since Frances Fitzgerald published heads in July. The Bill would have closed a glaring oversight in Irish domestic violence law which I have written about before. As Irish law stands, domestic violence orders are granted in private court sittings but breaches are prosecuted in open court with no reporting restrictions. With a general election looming the Bill is unlikely to be passed by the current Oireachtas, raising the likely prospect that this damaging loophole will persist for years to come.

John Burns had an interesting piece in today’s Sunday Times on privacy and reporting which mentioned a Press Ombudsman ruling that starkly highlighted this loophole.

[T]he Sligo Weekender … reported on a case before the District Court in which a man was charged over an altercation with his estranged partner. The newspaper named the couple and said they had two children, whose ages were given. No reporting restrictions appear to have been imposed by the Judge, and the children featured in the evidence.

The case involved a prosecution for the breach of a safety order. Like all family law cases, applications for safety orders are heard in private court sessions with only the parties and their lawyers present, along with the judge and court clerk. The order itself, if granted, is served on the respondent and the local Gardaí, but no-one else finds out about it. However, breach of a safety order is a criminal offence and is prosecuted in open court.

The mother in the Sligo case wrote a letter to the Sligo Weekender saying that

printing both parents’ names and the children’s ages was the same as printing the children’s names.

The Press Ombudsman upheld two grounds of her complaint: that it breached the Code of Practice in relation to privacy and the rights of children.

An account of the court proceedings could have been published in the public interest and at the same time the right to privacy of the children could have been protected.  By naming the parents of the children and giving their ages this did not happen. The newspaper in its defence said that the judge had not imposed any restrictions on court reporting.  However it is my understanding that the protection of children applies in all instances and that there is no requirement on the judge to draw this to the attention of any journalist present in court …

By publishing the names of the children’s parents and their ages the newspaper failed to have regard for the vulnerability of the children.  The Court and Civil Law (Miscellaneous Provisions) Act 2013 permits journalists to attend and report on family and child law proceedings provided the anonymity of any children involved is protected. In the report in the Sligo Weekender the anonymity of the children was not protected and therefore there was a clear breach of [the Code].  It is not my function as Press Ombudsman to determine if the 2013 Act was breached, my function is only to make a decision on any breach of the Code of Practice.

This analysis is problematic as the understanding referred to in relation to the protection of children is unclear. It may relate to the later reference to the 2013 Act, but that legislation deals with reporting on family and child law proceedings. The prosecution of a breach of a safety order involves criminal proceedings, not family or child law proceedings (despite the fact that the order itself originates in family law proceedings). The Ombudsman rightly states that it is not his function to make a determination on the 2013 Act, only the Code of Practice, but the overlap and conflict between the Code and ordinary court legislation is unhelpful and creates ambiguity.

While it is not uncommon for judges to make reporting restrictions in cases of this nature, there is no legal basis for doing so and I expect that any such restrictions could be successfully challenged. Indeed, the Ombudsman’s comments protect only the right to privacy of the children and not their mother. Local newspapers, meanwhile, tend to treat such cases sensitively and sometimes publish anonymised accounts of proceedings or do not publish a report at all.

We now have a totally unacceptable situation where there is specific legislation which addresses domestic violence and court reporting of proceedings generally, both of which permit reporting of cases of this nature. The only redress available to a victim wishing to preserve their privacy is to make an after-the-fact complaint under the non-statutory code of a self-regulating press. If a similar complaint were to arise again or be appealed to the Press Council the outcome is not certain. After all, the arguments made by the Sligo Weekender in this case were, on the basis of current law, correct.

There is an argument for publicising domestic violence cases as the lack of coverage of domestic violence generally in Ireland tends to distort public perception of the true scope of the problem. However, the decision as to whether or not the parties should be identified publicly should, in my view, always remain with the victims, as is the case with sexual offences. The reality of domestic violence is that the victims might often take a considerable time to both realise what is happening and to seek help. There are legal options available under the Domestic Violence Act with varying consequences and victims should always be encouraged to avail of them. However, the fact that breach of a domestic violence order can result in a victim’s deeply personal circumstances being fully reported on leads to a natural hesitance on the part of victims to push prosecutions and, sometimes, to even apply for a domestic violence order to begin with.

The change needed to the law is minor and uncontroversial. The slow pace of introducing it is, perhaps, just another symptom of the way in which legislative reforms are made in Ireland. This reporting loophole could easily and more appropriately have been closed by including a provision in the 2013 Miscellaneous Provisions Act but was instead put on the long finger of a consolidated act.

Anonymity gap in domestic violence cases to be closed (finally)

It has taken almost 20 years but the Government is finally to close the anonymity gap in domestic violence cases. I wrote about the issue in 2012.

Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it.

The reason for my post three years ago was that I had written to then Minister for Justice Alan Shatter to ask if this loophole would be changed. His response was that a miscellaneous provisions bill would change the law to provide for anonymity in domestic violence prosecutions.

Since then there has been a change of minister and a change of approach. Frances Fitzgerald recently published draft legislation which will, if passed, consolidate and amend the existing Domestic Violence Act.

This legislation would protect the anonymity of victims in much the same way as victims of sexual offences are protected. Prosecutions for breach of domestic violence orders would still take place in open court but the media would be restricted from identifying the parties (including their children) and will be guilty of an offence if they do identify the parties.

The draft does not mention a right of a victim to waive anonymity following conviction of the offender. It does say that the judge may, if the “interests of justice so require”, direct that certain information can be published and this does appear to provide for the possibility of a victim requesting the judge to direct the publication of the defendant’s name but the decision would rest with the judge.

This small amendment is one that is overdue for victims of domestic violence. However, the fact that the legislation is only at heads of bill (draft) stage suggests that it may take some time to be passed and is unlikely to become law during the lifetime of the current Dáil.

“Conscience” and the marriage referendum

Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.

Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?

The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.

Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.

It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.

Significant reforms of family law in 2014/15

Two important announcements have been made by the Government that will lead to reform of family law in Ireland:

  1. a referendum on same-sex marriage will be held in the first half of 2015;
  2. the Family Relationships and Children Bill will be enacted in advance of it.

Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.

The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will

includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact

Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.

While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications. 

The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.

There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.

Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.

More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.

Procedural changes to the courts system in the Courts Bill 2013

The Minister for Justice has published the Courts Bill 2013 (explanatory memorandum here) which will change two aspects of how the courts system works in Ireland: (1) reporting of certain cases ordinarily held in private and (2) the monetary jurisdiction of the lower courts.

(1) Relaxation of the rules on private hearings

The changes in the Bill on private hearings will commonly be described as relaxing the in camera rule. In fact, what the Bill does is add to the list of cases which must be heard otherwise than in public but to which bona fide members of the press may attend, so long as nothing which might identify the parties is published. (There is a slight technical difference between cases heard “in camera” and those heard “otherwise than in public”, but it’s not relevant here.) The change will essentially allow for court reporters to publish accounts of family law* proceedings, including applications for domestic violence orders although judges will retain the power to exclude the press in certain circumstances. Interestingly, a judge will have the power to exclude the press from hearing evidence which may contain commercially sensitive information. This provision is likely to be relied on in many family law cases, justifiably or otherwise. The aim is to increase public confidence in the judicial system by partially removing the veil which ordinarily hangs over such cases.

It is somewhat disappointing to see that while the Bill proposes to allow court reporters to attend hearings at which an application for a domestic violence order is made, the Bill does not close off the loophole whereby breach prosecutions can be fully reported. I wrote last October:

if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

The Department informed me that it was intended to close off the loophole in a Criminal Law (Miscellaneous Provisions) Bill but I do not see why it could not be included in the Courts Bill. I assume that breach prosecutions will be made subject to the new rules in the Courts Bill, so that the press can attend hearings and publish reports so long as they do not identify the parties. Nevertheless, it is hoped that the restriction on reports of breach prosecutions will be introduced soon.

* Family includes, in this context, cases involving civil partners and cohabitants.

(2) Increase in civil jurisdiction of the lower courts

The Bill will increase the jurisdiction of the District Court from the current €6,348.69 to €15,000. Over that amount the Circuit Court will hear cases with a value up to €75,000 (up from €38,092.14), beyond which cases will be dealt with in the High Court. This should have the effect of reducing legal costs: as a rule of thumb, the higher the court the higher the cost and by bringing more cases into the lower courts the costs of those cases will be reduced while the burden of the High Court will also be lessened.

Two things are interesting in this part of the Bill:

  1. The Circuit Court will have jurisdiction in personal injury cases only to a maximum of €60,000. The Minister’s justification is as follows: “As a further measure to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs, I am proposing to restrict the jurisdiction of the Circuit Court to €60,000 in respect of personal injury actions.” I don’t know what this means other than suggesting that the insurance industry lobbied for the lower limit.
  2. In 2002 the Government changed the law to increase the District Court jurisdiction to €20,000 and the Circuit Court to €100,000 (with no lower personal injury limit specified) (I wrote about it here). The relevant sections of the Courts and Court Officers Act 2002 were never commenced (ie. activated) on the basis that the Government wanted to monitor the impact of the Injuries Board. They are now increasing jurisdiction by only 75% of what was decided on 11 years ago, for reasons unknown.

Nevertheless, the changes are good as the existing limits of the jurisdiction of both lower courts is too low. The greatest impact may be on the District Court which, due to the historic low limit, has tended not to have a significant civil law list. That will now change.

Good news on anonymity in domestic violence cases

Domestic violence victims can seek a range of orders under the Domestic Violence Act 1996 which, it is hoped, give additional protection from violence. Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

I can find no policy justification for the existing law and it appears to be a loophole: no-one thought to say, by the way, if an order is breached the prosecution should take place in camera. Because of the risk of publicity, it is unsurprising that victims of domestic violence often do not wish to appear as a witness for the prosecution. In a worst case scenario, the very mention of potential media publicity can discourage a victim from even seeking an order in the first place.

It is entirely unsatisfactory for victims of domestic violence to be put in the position where they will not participate in a prosecution or report a breach due to fear of adverse publicity. Publicity does not only affect the victim but also children, who are often involved in episodes of domestic violence. Even if they are not involved  the victim is likely to be conscious that the children may be old enough to learn of case reports in the local paper. Victims, rightly or wrongly, may still wish to protect an abuser’s reputation for the good of the wider family and the publicity involved in prosecutions will discourage them from reporting a breach or appearing as a witness.

Despite the fact that newspapers can report breach prosecutions, reports rarely appear. I don’t have statistics on prosecutions, but they seem to result from only a small fraction of the number of domestic violence orders granted. It is hard to avoid concluding that the risk of publicity is a factor. I recently reviewed the available statistics on domestic violence orders since 2001 and was struck by the following:

  • from 2001 to 2010 there was a decrease of approx 24% in numbers applying for orders under the 1996 Act;
  • the greatest reduction in applications was for barring and interim barring orders, down approx 39% and 54% respectively.

The 2011 annual report of the Courts Service shows an increase in applications for domestic violence orders in that year as compared with 2010 but the overall trend over the past 10 years has been downward. There may be many reasons for the dramatic decline in applications under the 1996 Act but the reluctance to prosecute breaches must be having a knock-on effect on the willingness of victims to go to court for an order in the first place.

In August, I wrote to the Minister for Justice asking if this loophole would be closed. Today I received a reply: it will.

[The  2010-2014 National Strategy on Domestic, Sexual and Gender-based Violence National Strategy] addresses the improvement of legislative provisions to protect victims of domestic violence. Among the proposed improvements is an amendment to  s.17 of the Domestic Violence Act 1996 to provide for the anonymity of parties to proceedings for breaches of orders made under the Act.  The proposed amendment is expected to be included in a Criminal Justice (Miscellaneous Provisions) Bill which is presently with the Attorney General’s Office.

The National Strategy mentioned improvements to domestic violence legislation, as did the Fine Gael manifesto and the Programme for Government, but neither explicitly refer to closing the publicity loophole.

It is good news that the Government is now doing so.

Cuts and redirections of funds

We have many years of cutbacks ahead of us in Ireland and the fact that a political party committed not to make certain cuts pre-election is no guarantee that they won’t in government.

Still, I was struck by one small cut reported on last Saturday.

SAFE IRELAND, the national body representing domestic violence refuges and services, has had its core funding cut by 100 per cent.

The 25th of November to the 10th of November is the international 16 Days of Action campaign aimed at highlighting and opposing violence against women.

16 Days Campaign

The news of that cut became public at the outset of this year’s 16 Days campaign.

The Labour manifesto for the 2011 election stated:

Labour is committed to tackling and eradicating domestic violence. We will protect funding for frontline services, such as family refuges …

That was 9 months ago. Three weeks ago, the Minister for Justice said in the Dail:

all reasonable efforts will be made by my Department to continue supporting the provision of services dealing with domestic and sexual abuse within available resources.

Now, the defence of this cut will be that it does not affect frontline services: SAFE Ireland doesn’t provide them. And, to be fair to Minister Shatter, the cut was not made by his department but by one run by a party colleague. Nevertheless, the work of SAFE Ireland was important and the funding not excessive. In fact, the move by the HSE appears to be a redirection of funds rather than a full cut. According to the director of SAFE Ireland:

[The HSE] say they are going to use the money instead to commission a number of pieces of work towards the implementation of their action plan on domestic violence.

Which, surprisingly, appears to be quite similar to the work that SAFE Ireland was doing:

SAFE Ireland is part of the implementation infrastructure for the delivery of the government strategy on domestic, sexual and gender based violence.”

This may be the shape of things to come: the economic environment used as justification not only for cuts in funding to NGOs and service providers who rely on State funding, but also as justification for the redirection of remaining funds to consultants and in-house services.

PS: For more on the 16 Days campaign in Ireland, see the Women’s Aid blog and the calendar of events for Limerick at the Mid-West Violence Against Women Network.

Irish Courts have duty to override religious objections of parents to protect welfare of children

The judgment of Mr. Justice Gerard Hogan in Temple Street v. D & Anor, published yesterday, makes for dramatic reading. It is not often that a sitting of the High Court occurs in the private residence of a judge at 1 a.m., but it is not the first time that the Irish medical profession has made emergency court applications when treating Jehovah’s Witnesses.

In this case, concerning Baby AB, the medical evidence presented to Hogan J. was that a blood transfusion “was clinically necessary and urgent and all possible alternatives had been exhausted.” Hogan J., referring to issues of religious belief, stated:

A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which [the Constitution] pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette:

“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 I.R. 7.

However, the person at issue (AB) was a minor and Hogan J. relied on Article 42.5 of the Constitution to grant an order allowing the blood transfusion to take place. Article 42.5 provides:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This requires a failure in moral duty on the part of parents, so the conclusion is that adherence to a particular religious belief may, in so far as the State or society is concerned, constitute such a failure. Hogan J. said that:

the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.

He concluded that the Court has “a jurisdiction (and, indeed, a duty) to override the religious objections of the parents”.

The judgment is likely to be of interest to opponents of greater recognition of the rights of the child in the Constitution, particularly those who fear greater State opportunities to override the rights of parents.

For more, see the Human Rights in Ireland blog and the Irish Times.

An insight into life under NAMA from the family law courts

Mr. Justice Abbott gave judgment earlier this year in XY v. YX, a very interesting judicial separation case substantially concerned with the impact of the National Asset Management Agency on a married couple’s separation. The judgment has recently been made available on the Courts Service website.

&copy NAMA

Abbott J outlines the scope of the case as follows:

This is a case involving very substantial assets, but even more substantial debts, in consequence whereof the assets of the parties … are in very substantial negative equity. A major implication of this situation is that it is likely that the debts attaching to the vast majority of the assets of the husband will be taken over by the National Asset Management Agency (NAMA), established under the National Asset Management Agency Act 2009 (“the Act of 2009”).

Abbott J said that the case “assumed a greater degree of urgency” due to the “likely onset of NAMA”.

This situation is in stark contrast with the picture painted in the affidavits of means of the parties filed after the proceedings were initiated in 2007, which indicated that the husband’s assets amounted to some hundreds of millions of euro, even if a forced sale of the assets had been effected by the banks.

Abbott J outlined the pre-NAMA fortunes of the couple:

An indication of the changed times through which this case has progressed is given by the fact that in his first affidavit of means, prior to the collapse of Lehman Brothers, the husband could freely declare his income from all sources at €6,000,000 per annum while, at the same time, the wife indicated de facto household expenses of €694,418 per annum, although she said she received only monthly payments from the husband’s company averaging €6,750 …

This is a standard of living which might be expected of a couple whose net worth could be stated in the region of €230,000,000. They enjoyed the facility of a luxurious home, a choice of private air flights, good holidays and a good social life generally. However, notwithstanding their generous lifestyle, it could not be said that they led the life of the idle rich.

The extent of the husband’s negative equity is concluded as follows:

[A] total net value forced sale loss of €304,309,445.00. The final horizontal column on the spreadsheet gives an equivalent net value, having regard to estimated long term market values of the husband at the end of the ten year term of NAMA operations, at a negative €112,073,477.00

Two interesting aspects of the judgment relate to NAMA itself. A chartered valuation surveyor from Jones Lang LaSalle, giving evidence on behalf of the wife, said that the property market was close to the bottom and that the market represents a good buy at the moment. However:

He said that it could take longer than the ten years minimum period of NAMA’s lifetime to deal with certain assets, and that more realistically NAMA is not a ten year exercise in the long run.

Viewers of last Monday’s Prime Time Investigates will be interested in section 211 of the Act of 2009, referred to by Abbott J. It provides:

Where, on the application of NAMA or a NAMA group entity, it is shown to the satisfaction of the Court that—

(a) an asset of a debtor or associated debtor, guarantor or surety was disposed of, and

(b) the effect of the disposition was to defeat, delay or hinder the acquisition by NAMA or a NAMA group entity of an eligible bank asset, or to impair the value of an eligible bank asset or any rights (including a right to damages or any other remedy, a right to enforce a judgment and a priority) that NAMA or the NAMA group entity would have acquired or increased a liability or obligation but for that disposition,

the Court may declare the disposition to be void if in the Court’s opinion it is just and equitable to do so.

In XY v. YX Abbott J did not believe that the disposition involved (security on an unencumbered property to the value of €300,000 in respect of maintenance) would later be found by a court to be void under section 211 and believed it would be found just and equitable to allow the disposition. Of course, the circumstances of the XY v. YX case appear very different to those transfers dealt with by Prime Time.