We use cookies to collect and analyse information on site performance and usage to improve and customise your experience, where applicable. Click OK to use our website.

Radical shake-up of family law set out before Dáil committee

13 Mar 2019 / courts Print

Radical shake-up of family law set out before Dáil

Speaking before the Joint Committee on Justice and Equality this morning, the Special Rapporteur on Child Protection Geoffrey Shannon laid out a blueprint for reform of the family-law system in Ireland.

He said that a specialist judiciary and radically child-centred approach were a necessary part of the shake-up.

Dr Shannon told the legislators that the establishment of a specialised family and children’s court system is a Council of Europe recommendation.

He stated that a detailed plan and committed resources were necessary to turn these aspirations into reality.

“Such systems are commonplace across Europe and in common law jurisdictions,” he said. 

“In Ireland, most cases concerning children are heard in the general courts system by judges who generally do not specialise in laws concerning children or families.

“The cases may be heard in the same buildings used for proceedings concerning minor crime, for example, and road traffic offences,” he commented.

Priority

“The [Joint Committee on Justice and Equality] has made reform of the family-law system a work priority for 2019,” said committee chairman Caoimhghín Ó Caoláin TD.

“We have gathered a wide range of views from stakeholders and leading experts in this area. The committee intends to publish a report and recommendations following the completion of our own deliberations.”

Dr Shannon pointed out that, in the 1980s, the Probation Service sat in every family-law case – but that changed in the late 1980s as the Probation Service concentrated on criminal-law cases.

The HSE was not in a position to fill the gap, as its staff was not forensically trained, Shannon pointed out.

Also the HSE did not have sufficient social workers to take on the family-law caseload.

“This left a significant gap in the provision of support services to vulnerable family law clients, which has never been filled,” Shannon commented.

Lay litigants

The gap is even more significant, given that most family-law cases consist of lay litigants for whom legal aid is not always provided.

This is of increased concern given the introduction of complex legislation, such as the Children and Family Relationships Act 2015 and the Domestic Violence Act 2018, the Government’s Special Rapporteur said.

District Court President Judge Rosemary Horgan has introduced a case-management system, and Shannon also welcomed the advent of written decisions in the Dublin Metropolitan District Court.

He also commended Chief Justice Frank Clarke’s focus on access to justice.

“That said, much broader structural reform is needed to ensure our family-law system meets the needs of citizens who access the system at a very vulnerable time in their lives,” he said.

Neighbouring jurisdictions, such as France, have a specialised judiciary, highly trained in child welfare, for cases concerning children. 

'Youth lawyer'

“This specialist judiciary works closely with social workers to provide support and advice throughout the legal process, and to secure the agreement of all parties,” Shannon pointed out.

In Belgium, Flemish Bar Association members and its Youth Lawyer Commission must undertake a two-year course to train as a ‘youth lawyer’.

These trainee lawyers study child psychology, as well as methods of communicating with children.

In England and Wales in 2017, the Bar Standards Board published a list of competencies that every barrister is expected to have from the outset, in order to act in youth court proceedings.

These barristers must also register with the board in order to act as a barrister in the Youth Court.

In 1996, the Law Reform Commission Family Courts’ Working Group recommended the establishment of a two-tier court system – the District Court, and the Regional Family Court.

Under this proposal, the lower tier would have some of the jurisdiction of the District Court, but that court would not make final orders.

Jurisdiction

The LRC report says that the District Court jurisdiction in family law matters should be limited to the making of emergency orders and interim orders.

In all of these matters, the jurisdiction of the District Court would be parallel with the jurisdiction of the Regional Family Court.

What was envisaged is a system whereby all substantive decisions having long-term effect would be reserved to the Regional Family Court. Any extension of an interim order would be determined in the Regional Family Court.

Rather than ‘family law days’ in each district, there would be more specialised sittings of the Family District Court, which would sit in fewer locations than the current District Court does, but with more frequency.

This would have the advantage of being local and, even if somewhat more distant than at present, these courts would have a dedicated court, staff, and would enjoy other services and a specialised judge to hear the case.

Second tier

The second tier Regional Family Courts would have the same tier of jurisdiction as the current Circuit Court, with a specially trained judiciary.

Other services would also assist with family breakdown.

The Regional Family Court would have jurisdiction on all other issues: separation, divorce, dissolution of civil partnership, cohabitation, children’s cases, Hague and Luxembourg cases, adoption, surrogacy, succession cases, and perhaps cases for children requiring secure care.

The LRC report proposed that there would be approximately 15 of these centres nationwide, proportionate to populations. The judges would be specialised family law judges, provided with training.

The right of appeal from the Regional Family Court could be to the High Court, though in some instances it could be to the Court of Appeal.

Dr Shannon pointed out that, though there are moral and international human rights law obligations to ensure access to good systems and legal aid, there are also economic benefits in adequately supporting legal proceedings.

“Cuts to legal-aid budgets have led to proceedings which are more drawn-out and more difficult to resolve, where adequate support is lacking," Dr Shannon said.

Time constraints

The time constraints faced by professionals, such as social workers working on low-quality information, actually cost more money in the long run, he stated.

Dr Shannon added that the common law adversarial system is highly unsuitable for family-law cases, as parents are focused on ‘winning’, and their disputes could be psychologically damaging for both them and their children.

The binary nature of family processes is also problematic for complex family situations. Children state that it is very important to them to have flexibility built in to arrangements, so that they can change them if they wish, he said.

“However, children are frequently unable to secure changes to private law arrangements, or to timelines imposed by the courts,” said Dr Shannon.

Research

He believes that more research is needed into whether inquisitorial systems are better for family law and, if so, whether it may be a model that could be adopted in Ireland.

Alternative dispute resolution (ADR) has potential for reducing the conflict and adversarial nature of family law proceedings, he said.

“Mediation, for example, is one arena in which there is potential for greater flexibility in family law, particularly since the enactment of the Mediation Act 2017,” he pointed out.

“Mediation and other alternative dispute resolution approaches appear to result in more amicable and enduring arrangements, with the attention of parents more likely to be on children’s needs.

“It may facilitate families to better explore options and solutions themselves. There are significant questions over encouraging more mediation if this is conceptualised as an alternative to legal aid.

“In England and Wales, separating couples frequently do not want to engage in mediation, opting instead to self-represent in court.

“There are issues relating to power dynamics in relationships, and children are often excluded from alternative dispute resolution. Therefore, it should be seen as a useful alternative mechanism for resolving family-law disputes, not as a cost-saving measure,” Dr Shannon commented.

Children must be able to participate in a meaningful way in proceedings, he continued.

“Courts in Ireland have a duty to hear children, and to give due weight to their wishes under the Convention on the Rights of the Child, and also under domestic law. Section 24 of the Child Care Act 1991 requires a court to give due consideration to the wishes of the child, having regard to the age and understanding of the child,” he told the Oireachtas committee.

Entrenched right

Article 42A of the Constitution provides a more heavily entrenched right for children to be listened to in private family law cases, Dr Shannon said, along with the Children and Family Relationships Act 2015.

Another issue raised by Dr Shannon was the judicial interview. Though judges may meet occasionally with children in Ireland, data is not collected on the extent to which it happens, and there are no guidelines for these meetings – apart from some points set out in 2008 in O’D v O’D.

On the right of children to be heard in proceedings affecting them, Dr Shannon pointed to Israel, which has initiated a holistic system with a therapeutic emphasis.

In Scotland, a lay panel considers the welfare needs of children.

Dr Shannon concluded his presentation with summary points:

  • Designated specialist family courts should be staffed by specially trained judges, but these judges should remain part of a single judicial body,
  • In England and Wales, they operate a very strictly run ‘gatekeeping system’ of ensuring that cases are allocated to the most appropriate tier within the system, and this mechanism is best suited to the Irish context,
  • Any new family-court structure must recognise and actively promote an inter-disciplinary system to ensure effective communication between all the parties involved in family law – medical, law, education, guardians ad litem and social services,
  • Restructuring of the family law court without interdisciplinary information sharing would not meet the particular needs of the users,
  • In private family-law matters, key services should be available to permit family-law judges to refer parties to skilled personnel in order to draw up parenting plans, carry out parenting capacity assessments, deal with anger-management programmes in domestic-violence cases, monitor custody and access orders when they break down, engage in family therapy, and implement supervised access orders.

Consultations

In addition, the new family courts should be separate and have sufficient rooms for private consultations and ADR facilities.

Experts in the area of attachment, child development and the impact of abuse, ranging from neglect to sexual abuse, should be provided to judges. Also, translators should be on hand where there are language problems.

Dr Shannon submitted that children and young people should be given age-appropriate information to explain what is happening when they are involved in public and private law cases, and should be able to make their views known.

The Courts Service should also establish a pilot in which judges would learn the outcomes for children and families on whom they have adjudicated.

And finally, judges must set firm timetables for cases, as delay and drift have a profound impact on the welfare of children and families.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland