New legislation required to reform ‘in camera’ family law proceedings

Describing the current operation of the in camera rule in family court proceedings as “failing to ensure absolute protection for children and families”, a comprehensive report has recommended an overhaul of the rule to enhance transparency in the administration of family justice.

Labelling the current operation of the rule “confusing”, the principal recommendation of the report, titled The Operation of the In Camera Rule in Family Law Proceedings and published in May 2025, is that “the most comprehensive way of addressing many of the existing shortcomings surrounding the operation of the [in camera] rule… is the creation of primary legislation that would apply across all relevant proceedings”.

Published by the Department of Justice, Home Affairs and Migration, the report describes the current operation of the rule as “an impingement on young people’s lives”. The 253-page report contains 21 recommendations regarding in-camera family court proceedings.

Name and parameters of the in camera rule

Article 34.1 of Bunreacht na hÉireann defines in-camera proceedings as those “otherwise than in public”. The report says this term “does not provide sufficient clarity” on the parameters on the rule and recommends a “new title be given to this rule… [providing] a clear, concise explanation which is reflective of the actual naming of the rule”, namely court proceedings that are held in private and with reporting restrictions in place.

To provide clarity, the report recommends that the “transparency and privacy rule is clearly and consistently defined in law, policy, and practice”.

In keeping with the principle of open justice, the report recommends that any definition of the in camera rule “does not extend further than is necessary to the extent that its operation impacts constitutional or legal rights”.

The study considered international equivalents of the in-camera rule, recommending that “certain [eligible] individuals, professions, and services [such as foster parents, schools, etc] should have automatic access to redacted versions of the court order akin to the approach of Australia”, providing the material is not published.

Based on the position taken in England and Wales, and Australia, the report says parties to the proceedings are “permitted to request a copy of the transcript of the digital audio recording pertaining to their family law proceedings”, subject to strict privacy rules to avoid publication.

To improve transparency and fairness regarding proceedings, the report recommends the introduction of “an efficient mechanism” to ensure all cases connected to the parties “can be systematically tracked between courts and judges”.

A ‘gagging order’

As part of the research, 13 judges were interviewed, 317 members of the public completed an online survey, and 18 focus groups comprising professionals such as lawyers and social workers, court service staff, academics, and journalists were conducted.

Some participants argued that the in camera rule acts as a ‘gagging order’, significantly impairing the ability to access support services. The report describes the rule as “rendering the true implementation of [a child’s] right to be heard unworkable”.

To counter these concerns, the report recommends “a pragmatic approach be adopted… allowing private communication between parties to… family law proceedings and their family members and friends as to what is happening in court to seek support and/or access to services”.

The report recommends granting victims of domestic abuse or coercive control the right to seek the permission of the court to waive their right of anonymity, similarly to victims of sexual crimes.

Balancing privacy and transparency

The overriding purpose of the in camera rule, namely that “the privacy rights of children and parties… be maintained” in family court proceedings is reaffirmed in the report.

To improve transparency, the report recommends the establishment of a “system of reporting of anonymised family law judgments” with a recommended minimum percentage of between 10 per cent and 15 per cent of judgments published from all court levels.

The report further recommends removing the current requirement for academics to seek ministerial permission for “bona fide academic researchers” before accessing family court proceedings, alongside introducing a “presumptive right” for eligible journalists to access proceedings and speak to parties involved, though judges retain discretion to refuse access in limited circumstances.

Breaches of the in camera rule

Describing judges’ enforcement of rule breaches as “light touch”, the report recommends ensuring that “clear provisions as to what constitutes a breach [are] set down in legislation”. A distinction is drawn between “inadvertent breaches and those of a more deliberate or malicious nature”. It adds that appropriate sanctions for a breach should be clearly outlined in legislation.

Although initially envisaged as a temporary measure during the Covid-19 pandemic, the report recommends that “a remote hearing option… where all the standard court rules and etiquette would apply… should be available to facilitate access to justice for certain categories of individuals such as persons with disability, full-time carers, and domestic abuse victims”.

Furthermore, the report says: “The new guidance should address how the in camera rule would operate within remote hearings.”

The report finds that in most instances, “a very narrow interpretation of the in-camera rule is being applied” to those granted access to reports of in camera proceedings due to concerns that providing copies to these parties risks a breach of the rule. Countering this, the report recommends that “parties should be permitted to retain a copy of any court ordered report… that contains information relating to them”.

Justice ‘must be seen to be done’

In its introduction, the report quotes former Chief Justice Liam Hamilton as saying: “In a democratic society, justice must not only be done but must be seen to be done.”

The in camera rule conflicts with this principle by excluding members of the public from accessing proceedings and imposing reporting restrictions. As the report says, these impositions are necessary to “protect the right to privacy of the parties and any children to whom these proceedings relate”.

At present, the rule is used to protect the identity of parties and children related to the proceedings, but the operation of the rule has been criticised for limiting transparency and undermining the principle of open justice.

The operation of the rule has been likened to a ‘gagging order’, hampering the ability of victims to seek support. In December 2021, Mary-Louise Lynch of Survivors Informing Services and Institutions (Sisi) said the rule created a “paradise for abusers” in family courts, claiming that abusers are being given access to children following in camera proceedings.

Minister for Justice, Home Affairs and Migration Jim O’Callaghan TD says: “I have asked my officials to now consider this report and revert by the end of this year with policy proposals for my consideration that will reform the in camera rule.”