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Warring families should be warned to stay out of court
TD Jim O'Callaghan outside Leinster House Pic: RollingNews.ie

24 Oct 2019 / family law Print

Warring families should be advised to stay out of court

The Oireachtas Joint Committee on Justice and Equality has today called for a major overhaul of the family law system.

It wants urgent status for long-promised legislation for the establishment of a dedicated and integrated family court within existing court structures.

Helen Coughlan, Seán Ó Hullacháin SC and Keith Walsh at today's Dáil Committee hearing

Specialised family courts are commonplace in other jurisdictions.

The Committee is also urging the Government to provide the necessary funding for a purpose-built family courts complex adjacent to the Four Courts in Dublin and modernisation of family court facilities nationwide.

Specialist training

The judiciary, lawyers and court staff should also receive comprehensive specialist training, it says.

The report on reform of family law system makes 38 recommendations in total and has now been sent to the Minister for Justice and Equality Charlie Flanagan.

Among the main recommendations are:

  • A thorough review of the physical infrastructure of family law courts should be carried out, with a view to producing a blueprint for a modern, efficient and family-friendly courts infrastructure,
  • Key ancillary services and agencies, such as legal aid, mediation services, courts and courts offices, should all be housed under one roof,
  • A public information campaign should be launched, similar to that introduced in Australia, to ensure better provision of information about the family law system,
  • Reform of the in camera rules and establishment on a permanent basis of a dedicated reporting body, to include both public and private family law proceedings, while maintaining the anonymity of parties,
  • Parties to family law proceedings should be advised at the outset that they would be exposed to less stress, cost, time and risk if they could reach a settlement amongst themselves through Alternative Dispute Resolution (ADR), rather than persisting with an adversarial process in which a court will ultimately impose a decision that will seek to balance the respective rights and interests of all affected parties,
  • A full review of the legal aid scheme be conducted, with particular regard to means test rates, contribution requirements and eligibility, in order to ensure that the scheme is meeting the needs of those most vulnerable in society,
  • The Committee believes that the current threshold for legal aid needs to be raised significantly,
  • In addition to structural reforms, a substantial increase in the number of judges is essential – particularly at District Court level – to address the backlog of cases and relieve pressure on the judiciary.
  • The Committee acknowledges that family law proceedings are very stressful for the parties, particularly where there are children involved.

It believes that lawyers and family law courts should advise the parties at the outset that the end result will be a court-imposed decision relating to their entitlements to assets and custody or access rights in respect of children. 

The Committee members are:

  • Colm Brophy, Fine Gael
  • Jack Chambers, Fianna Fáil,
  • Catherine Connolly, Independents 4 Change,
  • Peter Fitzpatrick, Independent,
  • Jim O'Callaghan, Fianna Fáil (pictured),
  • Thomas Pringle, Independents 4 Change,
  • Caoimhghín Ó Caoláin – chair, Sinn Féin

Strong feelings 

Although family law proceedings arouse very strong feelings amongst the parties, the Committee believes the parties should be advised at the outset that they would be exposed to less stress, cost, time and risk if they could reach a settlement amongst themselves.  

While acknowledging the effectiveness of the provisions of the Mediation Act 2017 in obliging legal practitioners to advise their clients of ADR options, the Committee believes that early and active case management by the judiciary would better highlight the advantages of ADR methods and actively encourage parties to choose a non-adversarial route from the outset. 

The Committee says ADR methods need to be made more publicly available, particularly for those entering into family law disputes.

Consensual

It does not believe that mediation, which by its very nature should be consensual, should ever be made mandatory.

However, it does strongly recommend that mandatory information sessions be provided in relation to mediation and other ADR options prior to proceeding with litigation, in order to ensure that parties understand the reality of the court process and the advantages of avoiding litigation where appropriate.

Such information sessions could draw upon the example of the Mediation Information and Assessment Meetings (MIAMs) offered in the UK.

The Committee heard significant evidence that ADR, particularly mediation, is an essential element of an efficient and cost-effective family law system, whilst also achieving better outcomes for families.

Facilities

ADR and mediation facilities should be features of every court house where family law proceedings are heard, the Committee says.

Such supports would help to alleviate the workload of the Legal Aid Board and the judiciary should they be adequately provided for and integrated into the courts system.

The Committee recommends substantially increased funding and adequate resourcing of ADR services. 

Concerns

Concerns were raised regarding the regulation of mediators and others engaged in alternative dispute resolution, and ensuring that they are suitably qualified and properly trained in family law matters.

The Committee urges the Government to implement the provision within the Mediation Act 2017 to establish a Mediation Council in Ireland that will:

  • provide a code of conduct for mediators,
  • provide users with information regarding the competency of mediators,
  • set training standards for mediators,
  • put complaints procedures in place should issues arise with a mediator. 

The Committee agreed that while public child care cases are in general unsuitable for mediation, it may be appropriate for the judge to recommend the use of mediation in particular situations, rather than return to court, when children are already in care – such as:

  • negotiations around access,
  • decisions about the education of the children,
  • going on holidays, and
  • psychological and medical assessments of the child.

Solicitor Keith Walsh, Chair of the Law Society Child and Family Law Committee, welcomed the recommendations of the Report.

“This report sets out starkly the current state of crisis in the family law system – families must work within an under-resourced, over-stretched family law system which is not fit for purpose.

Significant change

“All the contributors to this report agreed that immediate and significant change to our family law system is required. We fully agree that we need a new court structure for family law cases which includes an integrated approach to ADR,” he said.

Walsh said the report highlights the need for adequate resources to be devoted to family law, the need for a dedicated and integrated family law court system within the existing system and the failure of the state to comply with Article 42a of the Irish constitution – to ascertain the voice of the child.

Emphasis

He welcomed the report’s emphasis on the importance of ADR.

"The report has highlighted the immediate need to provide adequate courthouses for family law which is in a state of crisis in Ireland,” he said.

“This report, together with the very important Dr Geoffrey Shannon report ‘Divorce in Ireland – the case for reform’ which the Law Society report published earlier this year, now provide a blueprint for how family law should work in this jurisdiction. 

Implementation

“We call upon the Minister and the political parties to implement these reports serious consideration and to make sure that it does not rest upon a shelf like so many other reports on the reform of family law since the Law Reform Commission’s report on family courts in 1996. 

"Every day that goes by where parents and children are caught up in a system that is unfit for purpose is a day wasted and we need reform to family law immediately,” Keith Walsh said.

 

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