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Cite as: [2013] IEHC 578

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Judgment Title: A.B -v- C.D

Neutral Citation: [2013] IEHC 578

High Court Record Number: 2012 97 & 98 CAF

Date of Delivery: 09/12/2013

Court: High Court

Composition of Court:

Judgment by: Keane J.

Status of Judgment: Approved

Neutral Citation: [2013] IEHC 578

THE HIGH COURT

FAMILY LAW

[2012 No. 97 and No. 98 CAF]

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

A.B.

APPLICANT/RESPONDENT

AND

C.D.

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Keane delivered on the 9th December 2013

Background
1. This is an application brought by Times Newspapers Limited ("Times Newspapers") to be permitted to have a reporter attend the hearing of a motion in these proceedings for the purpose of reporting upon it, subject to the imposition of whatever conditions on such reporting the Court may deem necessary or appropriate.

2. The underlying proceedings have been brought under the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995. The parties have been in litigation for over a decade. They are now divorced and the remaining issues between them centre on the custody and care of their minor children.

3. In the motion the hearing of which Times Newspapers wishes to report, the father, as a litigant in person, seeks an Order "striking out and/or setting aside" an Order made by Abbott J. in this Court on the 28th February 2013. That Order addresses a number of custody and access issues concerning two minor children of the parties. For completeness, it should be noted that, on the 21st July 2010, Abbot J. had made an Order addressing broadly the same issues on the facts as they then stood. The provisions of that Order were overtaken by subsequent events. Those events precipitated a number of applications to the Circuit Court. The resulting Circuit Court orders were then appealed to this Court, culminating in the making of the Order the respondent now seeks to impugn.

4. The Appellant seeks to have that Order struck out or set aside by reference to a particular matter addressed in the judgment of Abbot J. delivered on the 1ih July 2013. At paragraph 7 of that judgment, Abbot J. states:

"I asked [the mother] if, after the making of the High Court order [of the 21st July 2010] but before the furnishing of reasons [in a judgment delivered on the 26th July 2011], she asked a Dail Deputy to make enquiries for her in relation to the matter from the judge, and that the Dail Deputy sought the services of a Circuit Court judge to ask me was it a fact that [one of the parties' minor children] had been sent away to the primary care of the father. She agreed that she had made that approach to the Dail Deputy and apologised on the basis that it was at a time when she was unrepresented. I informed the court that on being asked the question by the Circuit Court Judge (quite improperly), I replied that a judgment would issue on the web in due course in relation to the matter."

5. At paragraph 10 of that part of the same judgment, headed "Findings", Abbot J. concluded (on the relevant point):

"I indicated to the parties that notwithstanding the entirely improper interference of mother

via

political representative and judge, that I did not propose to disqualify myself such as other judges might have done in the circumstances and the parties proceeded to authorise me to speak to [the minor child concerned] on the

P.OD v. SJN

principle, which would indicate consensus of the parties that I should continue to act, notwithstanding this impropriety by mother and her fellow actors."

The present application
6. The proceedings in which the motion before the Court has been brought are proceedings under the Judicial Separation and Family Law Reform Act 1989 ("the 1989 Act") and the Family Law Act 1995 ("the 1995 Act").

7. Section 34 of the 1989 Act provides that 'Proceedings under this Act shall be heard otherwise than in public.' Section 38(6) of the 1995 Act provides that the provisions, inter alia, of s. 34 of the 1989 Act "shall apply to proceedings under this Act in the High Court."

8. Times Newspapers applies to be permitted to report on the hearing of the present motion in reliance on two arguments. The first is that the father's application to "strike out or set aside" the impugned Order must properly be viewed as a separate proceeding that does not attract the application of the in camera rule that applies to proceedings brought pursuant to each of the statutes under which the present proceedings have been instituted and maintained. The second, or alternative, argument is that, even if the father's application is not a separate proceeding, this Court retains a discretion to permit it to be heard in public, subject to the imposition by the Court of whatever conditions are deemed necessary to properly balance the privacy and family rights of the parties and their minor children, on the one hand, with the freedom of expression rights of the media and general public, on the other.

9. The mother opposes that application. Having sought to elicit the views of the father, bearing in mind his status as a litigant in person, I believe it is fair to say that he neither supports nor opposes the application, as long as any reporting that might be permitted - should it succeed - contains nothing that would tend to identify either of the parties or any of their children.

The first argument
10. It was submitted on behalf of Times Newspapers that the father's application to "strike out or set aside" the impugned Order should not be viewed as part of the family law proceedings in which that Order was made but (with due regard to the father's status as a litigant in person) should be seen instead as, say, something in the nature of an application for an Order of Certiorari quashing it by way of Judicial Review.

11. That submission cannot succeed for two reasons. First, there is clear and incontrovertible authority that Judicial Review cannot lie against an Order of the High Court. In The People (D.P.P.) v. Quilligan (No. 2) [1989] 1 I.R. 46, the Supreme Court (per Henchy J. at 57) pointed out that:

"The High Court.. .is not an inferior court subject to corrective orders such as mandamus. The Constitution has identified it as a court invested with a full original jurisdiction in and power to determine all matters and questions of law or fact, civil or criminal."

In Blackall v. Grehan [1995] 3 I.R. 208, the Supreme Court (per Egan J., Hamilton C.J. and O'Flaherty J. concurring) again re-emphasised that there is no entitlement to judicial review in respect of an order of the High Court (at 211).

12. Second, if any relevant jurisdiction does exist that would permit this Court to strike out or set aside an earlier Order of the High Court on the grounds advanced by the father (which question remains to be determined), it seems to me that the invocation of that jurisdiction (if it exists) can only occur in the context of an interlocutory application in the present proceedings, which are proceedings brought squarely under the 1989 and 1995 Acts. I am strengthened in that view by the following dictum of Murphy J. in R.M v. D.M [2000] 3 I.R. 372 (at 387):

"Proceedings are what goes on in relation to litigation. It covers all pleadings, evidence, whether oral or on affidavit and all orders and judgment in relation to that litigation."

The second argument
13. In asserting that there is a discretion vested in the Court to permit the reporting of proceedings covered by s. 34 of the 1989 Act and s. 38 of the 1995 Act, Times Newspapers cites a number of authorities.

14. The starting point for its argument is Art. 34.1 of the Constitution of Ireland, which provides that:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

15. It goes on to point out that s. 45, sub-s. 1 of the Courts (Supplemental Provisions) Act 1961 ("the 1961 Act") provides:

"Justice may be administered otherwise than in public in any of the following cases:

…

(b) matrimonial causes and matters,

…”

16. Counsel for Times Newspapers referred the Court to the exegesis of s. 45, sub s. 1 of the 1961 Act, set out in the judgment of Walsh J. in the Supreme Court decision in the case of In re R. Ltd. [1989] I.R. 126. Particular reliance was placed on the following passage from that judgment (at 136):

"What is to be noted in s. 45 of the act of 1961 is that the cases set out in sub-s. 1 do not impose any requirement for a hearing otherwise than in a public court but leave it to the discretion of the judge in question, but naturally the discretion must be conditioned by the necessary qualification that the doing of justice remains the paramount consideration. Some of the legislative provisions enacted after the coming into force of the Constitution purported to require mandatory privacy, and in others it remains a discretionary matter. These statutory provisions also display a varied and unexplained choice of words to describe hearings other than in public, such words as 'in camera', "in private", and "in chambers". Example of the discretionary power of the court are to be found in the Married Women's Status Act 1957, (s. 12, sub-s. 4), the Marriages Act 1972 (s. 1, sub-s. 3), and the Companies Act 1963 (s. 205, sub-s. 7) and the provisions of s. 14, sub-s. 2 of the Family Law (Protection of Spouses and Children) Act 1981. This latter provision which refers to proceedings in the Circuit Court, and in the High Court on appeal from the Circuit Court, stands in odd contrast to the provisions of sub-s. 1 of s. 14 which appears to be mandatory. There are several statutory provisions requiring hearings other than in public which are phrased in mandatory terms but it is not necessary for the purpose of this case to consider the interpretation which should be given to any such mandatory provision."

17. The provision at issue in this case, s. 34 of the 1989 Act, as applied both in its own right and under s. 38, sub-s. 6 of the 1995 Act, is couched in mandatory, rather than directory, terms.

18. The principal authority on which Times Newspapers relies in support of its application is the decision of Abbott. J. in M.R. & Anor v. An tArd Chlaraitheoir & Ors [2013] IEHC 91. In that case, the provision at issue was s. 36, sub-s. 4 of the Status of Children Act 1987 ("the 1987 Act") which provides:

"On the hearing of an application under section 35 of this Act the Court may direct that the whole or any part of the proceedings shall be heard otherwise than in public and an application for a direction under this sub-section shall be so heard unless the Court otherwise directs."

19. In that case, the Court was persuaded that the discretion conferred under that section permitted the Court to hear the case in private, so that members of the public did not have a right to attend, while allowing a limited reporting of the case in the public interest. In the exercise of its discretion under s. 36 of the 1987 Act, and of its discretion under s. 45, sub-s. 1 of the 1961 Act, the Court directed that the proceedings be heard otherwise than in public but went on to direct and permit certain newspapers to attend at and report on the proceedings subject, amongst others, to the following conditions:

(1) That each newspaper shall designate a reporter who shall attend at and report upon the proceedings.

(2) That the identity of the applicant shall not be disclosed and that no matter which would tend to so identify him or her shall be disclosed.

(3) That the evidence of certain parties shall be given in private and shall not be disclosed.

(4) That the newspapers concerned and the designated reporters comply with such further directions as may be made from time to time by the Court in regard to the reporting of the case.

(5) That no contemporaneous social media reporting e.g. by Twitter shall be carried out by the designated reporters.

20. In reaching that decision, the Court relied on the persuasive authority of the English Court of Appeal decision in the case of Independent News and Media Ltd & Drs v. A [2010] 1 WLR 2262, which affirmed the decision of Hedley J. in the English High Court in that case; [2009] EWHC 2858. The decision of Hedley J. concerned the question of the proper application of the provisions concerning hearings in private in the Court of Protection for England and Wales under the relevant Rules of Court made pursuant to Part 2 of the UK Mental Capacity Act 2005. The UK Court of Protection Rules 2007 create a general rule that a hearing in the Court of Protection is to be in private, but go on confer an express power on the court to make an order for a hearing to be held in public "where it appears to the court that there is good reason for making the order." In that case, Hedley J. concluded that the exercise of the undoubted discretion conferred by the relevant Rules of Court required the court to balance the competing rights under Article 8 and Article 10 of the European Convention on Human Rights that were at stake in that case.

21. Times Newspapers submits that the same approach should be adopted in this case. However, this case is significantly different. Section 34 of the 1989 Act requires that proceedings "shall be heard otherwise than in public". The use of the word "shall" is usually understood as imposing a mandatory requirement rather than as conferring a discretion. In M.P. v. A.P. [1996] 1 I.R. 144, the High Court (Laffoy J.) so held in the following terms:

"Section 34 of the Act of 1989 is mandatory and, in accordance with that provision these proceedings, including the defendant's motion for attachment and committal, being proceedings under the Act of 1989, have been held otherwise than in public."

22. R.D. v District Judge McGuinness [1999] 2 IR 411, was a case that concerned the proper interpretation of s. 16, sub-s. 1 of the Domestic Violence Act 1996, which provides that: "Civil proceedings under this Act shall be heard otherwise than in public." Macken J. referred to the "clear mandatory words of that section", in finding that, save possibly in exceptional circumstances, the entitlement to be accompanied by a "McKenzie Friend" could not extend to "cases of a matrimonial nature".

23. Again, in R.M v. D.M. [2000] 3 IR 373, Murphy J. noted:

"Laffoy J. in

MP. v. A.P.

[

supra

] refers to s. 34 as mandatory. To that extent the interests of resolution of family disputes in private outweighs the public right that justice be administered in public."

24. In DX v. District Judge Buttimer [2012] IEHC 175, Hogan J. considered the constitutional background to the in camera rule under the 1989 Act, noting:

"5. Article 34.1 of the Constitution provides that justice is to be administered in public, save "in such special and limited cases as may be prescribed by law." ... It is true, however, that s. 34 of the Act of 1989 provides that judicial separation proceedings "shall be heard otherwise than in public" and this section must be taken to constitute such a special and limited case for the purpose of Article 34.1.

6. The language of Article 34.1 nevertheless reflects the Constitution's preference for the open administration of justice and derogations from that rule must truly be confined to "special and limited cases prescribed by law" in the relatively narrow sense of that term. In the present case, the exception prescribed by s. 34 of the Act of 1989 must be taken as reflecting a desire by the Oireachtas to protect other constitutional values in the context of family law proceedings such as the right to privacy (Article 40.3.1), the authority of the family (Article 41) and the protection of the constitutional rights of children (Article 42.5). It is in that context that s. 34 of the Act of 1989 falls to be interpreted."

25. It seems to me that, in enacting s. 34 of the 1989 Act, the Oireachtas chose to conduct the necessary rights balancing exercise itself, concluding that, in the limited sphere of proceedings under the Acts of 1989 and 1995, constitutional values of the kind identified by Hogan J. are sufficient to prevail over the competing constitutional interests that otherwise mandate the administration of justice in public.

26. In my view, legislation such as the 1989 Act, which attempts to balance a number of constitutional rights, is entitled to be treated with heightened deference by the courts. In Tuohy v Courtney [1994] 3 I.R. 1, a case concerned with a constitutional challenge to a provision of the Statute of Limitations 1957, as amended, Finlay C.J. stated as follows (at 47):

"[T]he Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.

The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balmice contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."

27. The balance of constitutional rights at issue in the present application was recalibrated by the Oireachtas through the enactment of s. 40 of the Civil Liability and Courts Act 2004 ("the 2004 Act"). The position in law whereby s. 34 of the 1989 Act operated to deprive a litigant in proceedings under that Act of the strict entitlement to be accompanied by a "McKenzie Friend", as found by Macken J. in R.D., was reversed by s. 40, sub-s. 5, which expressly recognises that entitlement.

28. Similarly, s. 40, sub-ss. 6 and 7 of the 2004 Act provide for the disclosure of documents prepared for, and information or evidence provided in, proceedings heard in camera under, inter alia, the 1989 and 1995 Acts.

29. Most significantly in the context of the present application, s. 40, sub-s. 3 of the 2004 Act expressly exempts from, inter alia, the general in camera requirement under s. 34 of the 1989 Act, any report of proceedings prepared by a barrister, solicitor or member of any class of persons specified in regulations made by the Minister for Justice, as well as the publication of any such report, provided it is done in accordance with the applicable rules of court and does not identify the parties. The subsection goes on to provide that the person concerned may attend the relevant proceedings for that purpose, subject to the direction of the court.

30. There is nothing in that subsection (or in the rules made under it by the Minister) that includes a bona fide representative of the press as a person or member of a class of person thereby exempted from the operation of the in camera rule created under s. 34 of the 1989 Act.

31. Accordingly, even if this Court were persuaded that the competing constitutional and Convention rights at stake in this case should be balanced in the same way as they were by Abbott J. in M.R. in the exercise of his discretion under s. 36 of the 1987 Act and s. 45, sub-s. 1 of the 1961 Act, or as they were by Hedley J. in Independent News and Media Ltd in the exercise of the undoubted discretion conferred on the Court of Protection for England and Wales by the UK Court of Protection Rules 2007, it does not seem to me right that the Court should seek to impose its own view of the correct or desirable balance in substitution for the view of the Oireachtas as expressed in the specific legislative provisions now at issue.

32. Before concluding on this point, there is one significant countervailing authority that requires to be considered. Health Service Executive v. McAnaspie [2012] 1 I.R. 548 was a consultative case stated in which the High Court had to consider, inter alia, the proper construction of s. 29, sub-s. 1 of the Child Care Act 1991 ("the 1991 Act"), whereby proceedings under identified parts of that Act "shall be heard otherwise than in public".

Birmingham J. noted that "[o]n its face, the requirement that proceedings should be heard otherwise than in public might be thought to afford a considerable measure of discretion as to how the proceedings should be conducted." Even though the wording of the in camera rule under s. 29 of the 1991 Act is identical to that of the equivalent rule under s. 34, the court in McAnaspie concluded that "the [District Court] has jurisdiction to permit the media to attend and report on [a District Court application for the disclosure to a deceased child's next-of-kin of guardian ad litem reports prepared in the context of child care proceedings concerning that child]."

33. Significantly, in reaching that conclusion, Birmingham J. expressly acknowledged (at 567):

"However, a different approach was taken by Murphy J. in

R.M v. D.M

(

Practice: in camera

) [2000] 3 IR 373. Murphy J. reconciled the diverging case law by taking the view that the cases of

Eastern Health Board v. Fitness to Practise Committee

[1998] 3 IR 399 and

A County Council v. W (Disclosure)

[1997] 1 F.L.R. 574 related to the in camera rule in relation to minors, and that the decision of Laffoy J. in

MP. v. A.P.

(

Practice: in camera

) [1996] 1 I.R. 144, relating to judicial separation, applied to the case with which he was concerned. Insofar as

Eastern Health Board v. Fitness to Practice Committee

was distinguished as a case involving minors by Murphy J., it would appear to follow that

R.M v. D.M

(

Practice: in camera

) is itself to be distinguished from the present case."

34. As already noted, while the present case involves minor children, the proceedings are brought under the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995, and family life and privacy interests are plainly directly engaged, beyond the obvious privacy interests of the minor children affected. Accordingly, in my view the present application is more properly governed by the approach adopted by Laffoy J. in MP. v. A.P. and reflected in the decisions of Murphy J. in R.M v. D.M and Macken J. in R.D. v. B.D., than by that adopted by Birmingham J. in McAnaspie.

Conclusion
35. It is important to bear in mind that the application of the mandatory in camera rule contained in s. 34 of the 1989 Act is itself subject to two broad qualifications. The first comprises those exemptions in relation to the reporting of the relevant proceedings, and the subsequent use of reports, information and evidence associated therewith, created under s. 40 of the 2004 Act, which exemptions have already been addressed above. In that context, it is useful to note that family mediators, persons engaged in family law research, and persons engaged by the Courts Service to prepare court reports are each currently a class of person specified by the Minister for the purposes of s. 40, sub-s. 3 of the 2004 Act, under the 2005 Regulations (S.I. No. 337 of 2005) made pursuant to that Act, whereas bona fide representatives of the press are not.

36. The second qualification is that confirmed under s. 40, sub-s. 3(b) of the 2004 Act whereby nothing in s. 34 prohibits the publication of the decision of the court in proceedings governed by that section. It seems to me that s. 40, sub-s. 3(b) is no more than a restatement of the existing law in that regard, since s. 34 expressly requires no more than that the proceedings to which it applies "shall be heard otherwise than in public."

37. In Dowse v. An Bord Uchtála [2006] 21.R. 507, MacMenamin J. set out the relevant underlying principles in the following way (at 536):

"It is a fundamental principle of Irish law that justice should be administered in public and that the administration of justice in public is an essential feature of a truly democratic society.

As a constitutional and legal principle, even if cases are heard in private there may be issues which are of public concern and where the interest of justice requires that after the hearing in private the judgment made therein should so far as possible be made public.

This is clear from the judgment of Walsh J. in the case of In re R. Ltd. [1989] I.R. 126. At p. 134 of the judgment Walsh J. observed:

'If part or whole of the proceedings were to be heard other than in public I am of the opinion that so much of the judgment as does not disclose the particular information which had been held from publication to be pronounced in public.'

Thus it seems to me this court must concern itself with those portions of the judgment that deal with the relevant facts and general legal principles on the one hand; and on the other to specific areas, which for a number of reasons should remain private. It is also necessary in carrying out this balancing exercise to have regard to particular issues to which reference will be made, and also, I am satisfied, to the doctrine of proportionality.

The court must also have regard to the provisions of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 which deals with this issue. As a general principle of Convention Rights, as well as under the Constitution, courts must make their judgments public unless such a course of action would constitute a denial of justice. Even if a court concludes that the publication of certain matters in the judgment would constitute such a denial, then it must nevertheless publish as much of the judgment as is possible without bringing about such a denial of justice. These issues have been dealt with by English authority Pelling v. Bruce-Williams [2004] EWCA Civ 845 [2004] Pam. 155.

I should also have regard to the precedent in relation to the decision in In re a Ward of Court (withholding medical treatment)(No. 1) [1996] 2 IR 73 where the judgment of both the High Court and Supreme Court were delivered in public because of the importance of the principles involved, although the evidence at first instance was heard in private."

38. I am satisfied that those are the principles that must apply to the decision of the Court on the motion now before it. However, for the reasons set out above, this Court has no discretion to permit Times Newspapers to have a reporter attend the hearing of the motion for the purpose of reporting upon that hearing. Accordingly, the application of Times Newspapers must be refused.

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