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1 CURRENT CHALLENGES in the FAMILY LAW COURTS I Would First Like to Thank the Department of Justice & Equality and the Minis

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1 CURRENT CHALLENGES in the FAMILY LAW COURTS I Would First Like to Thank the Department of Justice & Equality and the Minis CURRENT CHALLENGES IN THE FAMILY LAW COURTS I would first like to thank the Department of Justice & Equality and the Minister for extending an invitation to me to speak at this important seminar on the Family Law Courts with particular reference to the Government’s intention to establish a new family court structure. I wish to address you in my capacity as chairperson of the Family Law Development Committee of the Board of the Courts Service and also to give some insight from a judicial perspective on the challenges that face us, which are my own views and not those of the judiciary as a whole. I do not wish to trespass on the preserve of Government and the Oireachtas as to what any new family court structure will be, but I hope my talk will be useful in setting out the challenges for the future. I would like to dwell for a few minutes on some of our work on the Family Law Development Committee and various initiatives undertaken by the Courts Service in family law. Underlying the importance which the Courts Service places on family law our committee is the only standing committee devoted to a particular area of law. Our terms of reference set out in the first schedule reflect many of the issues which confront our policymakers. • the improvement of waiting times • the promotion of alternative dispute resolution 1 • Developing effective mechanisms for hearing the voice of the child, • continuing to improve accommodation and facilities • The dissemination of information to the public. • Access to court. The Courts Service board set up a pilot project on family law reporting, directed by Dr. Carol Coulter which resulted in the publication of a number of issues of “Family Law Matters” and culminated in a report to the board by Dr. Coulter presented in October 2007, which made a number or recommendations. Arising from that report the board decided to set up a Family Law Reporting Project Committee (F.L.R.P.C) in October 2007 chaired by Mr Justice Kearns, to progress the implementation of the recommendations and to continue to oversee the family law reporting project for a short period of time. The project committee prepared a report in April 2009 which was presented to the board of the Courts Service and approved. Both publications are on the Courts Service website links: publications, general publications, scroll to family law. The Family Law Development Committee of the Board has been operating on that blueprint since. A number of initiatives have been undertaken by the Courts Service in consultation with the Presidents of the Courts. 2 • The finalisation where possible of the county town courthouse building development programme, which includes specialised facilities for family law hearings. • The rationalisation of District Court areas nationally to provide for exclusive family law days in each District Court area. • Establishment of a case progression system in the Circuit Court under the direction of the County Registrars. • The development of ancillary services in Dolphin House in Dublin for the District Court where a mediation service has been established, a domestic violence liaison service and also a contact point for the Legal Aid Board. • The streamlining of the administration of public law child care proceedings and the reporting protocol for same. • The development in conjunction with various mediation services of a pilot project in the Circuit Family Court in Dublin, which unfortunately had poor take up. • The development of a High Court practice direction with emphasis on case management. • The provision of extensive information on family law on The Courts Service website. These initiatives have taken place against the backdrop of necessary rationalisation of the service because of funding and staff limitations. Many challenges still face us, which will no doubt face any new structure when put in place. 3 ALTERNATIVE DISPUTE RESOLUTION I refer to this in its broadest possible sense including mediation, collaborative law and negotiations between legal representatives at an early stage to avoid proceedings or to compromise proceedings already issued. While the statistical evidence available to the Courts Service does not break down the number of cases allocated hearing dates which are settled on the date of the court hearing or in the days leading up to it, anecdotal evidence would suggest that this remains a high percentage of contested cases. The challenge for all involved in the process is to bring that resolution to an earlier stage in the legal proceedings, or before legal proceedings commence. Our family law courts are still too adversarial in nature. That is not to underestimate the importance of the availability of courts to adjudicate on disputes, which regularly centre on disputed facts, which have to be resolved by a judge. Alternative dispute resolution is not a panacea, but the certificate system which is set out in Section 5 of the Judicial Separation and Family Law Reform Act 1989, Section 6 of the Family Law (Divorce) Act 1996 and Section 20 of the Guardianship of Infants Act 1964 has not been successful in diverting cases into alternative dispute resolution modes. The importance of communication of information about A.D.R. is essential and also the requirement to have good standards of practitioners with good expertise operating it. 4 In common with the Law Reform Commission recommendations, in it’s report (LRC CP 50-2008) the F.L.R.P.C recommended that there should be the introduction of compulsory information sessions about ADR before legal proceedings are commenced but ruled against recommending compulsory mediation itself as being contrary to the principles of mediation The Family Law Development Committee was invited by the Department of Justice and Equality to make some submissions on the mediation bill and recommended the bill should include a provision to make information meetings compulsory. There can be difficulties about A.D.R. Parties can approach the process unequally. One party may not have control of the financial assets or may be intimidated by threats or violence. There may be non disclosure of financial assets, or allegations of one party to the process having an overbearing personality which makes mediation difficult. It is important that ADR in the Court process is not seen as a completely independent pillar, and there is the facility for the courts to refer to A.D.R. or bring it back from A.D.R.. If orders are required to advance the proceedings. SOCIAL ENQUIRY REPORTS AND VOICE OF THE CHILD REPORTS Section 47 of the Family Law Act 1995 makes provision for the High Court and Circuit Court to procure a report on any question affecting the welfare of a party to the proceedings, including children. In accordance with Section 47 (4) fees and expenses incurred in the preparation of a report shall be paid by the parties to the proceedings in such portions as the court may determine. 5 A report prepared in accordance with the section can be very helpful in determining issues of custody access and welfare of children. As part of the process the children are normally interviewed by the expert preparing the report. Section 47 Reports are usually undertaken by child psychiatrists or psychologists. The reports can be expensive. The reports are usually wide ranging concentrating on the wider family and not just the children. In many cases the dispute is not about the psychological or the psychiatric health of the child but a protracted custody dispute between the parents. At present Section 47 of the Family Law Act 1995 does not apply to the District Court. Section 26 of the Guardianship of Infants Act as inserted by Section 11 of the Children Act 1997 extends the section to proceedings in the District Court; however this section has not been commenced. Where the District Court has concerns about the welfare of a child or wishes to have the views of a child heard indirectly, the only provision open to the court at present is Section 20 of the Child Care Act 1991, where a report can be ordered if it appears to the court that it may be appropriate for a care order or a supervision order to be made with respect to the child concerned in the proceedings. The court may then direct the HSE to carry out an investigation and to prepare a report. Historically the Probation Service provided social reports to the family law courts, but this service was discontinued. Over a number of years the Courts Service after detailed discussions with the Probation Service and other interested agencies set up a pilot project, where social inquiry reports primary relating to children were prepared by retired social workers and the Courts Service bore the cost, because of the limited financial resources of the parties involved. This was discontinued in 2011 because of the cost to the Court Service and also because it was considered to be outside the remit of the service, and was also a pilot project only. 6 In Northern Ireland, Scotland, England and Wales, the family law courts have the facilities of a dedicated service, where social reports and reports seeking out the voice of the child can be ordered by the court in respect of any matter concerning the welfare or best interests of the child, including hearing the voice of the child. In certain circumstances the Legal Aid Board, where a party to the proceedings is legally aided, may agree to bear the cost of the social report but that is entirely at the discretion of the Legal Aid Board. The Family Law Courts at present lack any ancillary services which can be called upon to assist.
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