“We’ve done the thinking for you” – Law Society calls for prioritisation of new family law courts system.
- Law Society of Ireland calls on Irish Government to be bold and modernise the entire family law courts system in line with stated commitments from 2011.
- ‘Geographic lottery’ leaves vulnerable people without necessary support in many parts of Ireland.
- 2015 Submission to Government on the future of Family Law in Ireland provides a roadmap to redesign an out-of-date system that is not coping with current demands.
The Law Society of Ireland has called on the Irish Government to deliver on its commitments and prioritise the modernisation of the family law courts system.
The call particularly focussed on the urgent need to upgrade inadequate facilities, fully implement legislation already passed, and to look abroad for systems that have been successfully operating for decades. The call was made as part of the Annual Family & Child Law Conference held at Blackhall Place on Friday 24 November 2017.
“Family Law is a dynamic and complex area of law in Ireland, and we have seen significant changes in recent years which reflect the evolving fabric of our society,” said Ken Murphy, Director General, Law Society of Ireland.
“One key area that is causing much harm and frustration within the community is the courts system that exists for hearing family law matters. Family breakdown, child custody and protection of minors – these are some of the most difficult and sensitive court proceedings that exist.”
“It has been over 20 years since the Law Reform Commission recommended a specialised court structure for family law matters and the commitment was made in the last Programme for Government. An unpublished Bill relating to this commitment is listed on the Department of Justice and Equality website, but here we are in 2017 with little progress made.”
“Meanwhile case-loads increase, unacceptable delays are experienced and inadequate facilities are utilised that simply can’t provide for the needs of clients given the confidential nature of these cases.”
“What we are calling for is not simply a matter of opening another building – the system as a whole needs urgent review, including the provision of dedicated and experienced judges, with the appropriate administrative support structures to improve the capacity and efficiency of the system.”
Changes in the law – system not keeping pace
Mr Murphy outlined “a number of factors that are driving change and demand on the current family law system, including:
- Post-recession issues.
- The internationalisation of family law arising from increased emigration and increased mobility of Irish citizens.
- The introduction of legislation in 2010 that recognised Civil Partnership and Cohabitation relationships, creating various rights and duties.
- The Constitutional amendment on children’s rights and the new Child and Family Relationships Act 2015.
- Increasing complexity of child care proceedings.
- Increasing importance of alternative dispute resolution and mediation.”
“The complex nature of legal proceedings and the experience of engaging with the courts can be stressful for those involved – our role as solicitors is to support our clients, interpret the law and assist in the resolution of the consequences of relationship breakdown,” he said.
A blueprint for the future
Dr Geoffrey Shannon, a member of the Law Society’s Family and Child Law Committee, led a working group in 2015 on the development of a 42-page blueprint for a new family law courts structure, reflective of the needs of modern Ireland and taking its cues from the best practice examples that have been operating in other countries for decades.
“Ireland does not have a formal family court structure per se. Typical cases are being dealt with throughout the courts system although most are heard in the District and Circuit Courts,” said Dr Shannon.
“These courts do not have specialised facilities to deal with the sensitive nature and needs of clients going through very difficult and personal proceedings.”
“We now have world-class legislation which must be complemented by world-class infrastructure.”
The report provides an extensive list of recommendations, backed up by research on systems in place abroad. Some jurisdictions, such as Australia, have had dedicated family law courts since 1976.
Voice of the child now central
“Since the enactment of the Children and Family Relationships Act 2015, we have also seen a greater priority and importance placed upon the voice of the child,” said Dr Shannon.
“This Act has been a game-changer for families as the best interests of children is now the paramount consideration for the Courts when dealing with access, custody, guardianship or the upbringing of children. Children are finally at the centre of the Court process.”
The Law Society recently released a new Family Law in Ireland handbook which sets out a code of practice for legal practitioners that reflects the changing landscape of family law and reinforces this importance of the voice of the child in family law cases. For more information, download the 2017 Family Law in Ireland Code of Practice.
‘Geographic lottery’ causes inequality
“The experience of those going through family law proceedings can often be dictated, in part, by the location of the jurisdictional court - without a specialised family law court structure, where you live can influence the timeliness of your case and expertise available to deal with that case,” said Dr Shannon.
“It’s a real geographic lottery. In various parts of Ireland there are infrequent dates set aside specifically to deal with family law cases – monthly, in many venues. Given the increasing demand this can mean waiting times of up to six months for hearings.”
“This challenge flows through to facilities. Some District Courts, for example, lack adequate consultation rooms. As a result, you have the situation of quite personal and emotional discussions being had between a solicitor and his/her client in corridors or outside courthouses.”
Access to civil legal aid remains an issue in family law cases
Hand-in-hand with the issue of facilities and resourcing is a citizen’s right of access to justice, and Ken Murphy spoke again about the civil legal aid system.
“We have long advocated for increasing access to justice through providing greater access to civil legal aid in cases involving domestic violence. In tandem we have long sought a review of the means test to permit more people to become eligible for civil legal aid,” said Mr Murphy.
“The Irish Government has yet to address the United Nations’ recommendations on legal aid contributions in domestic violence cases.”
“Domestic violence matters are some of the most heart-wrenching and difficult briefs a solicitor can work on. It is said that 1 in 5 women in Ireland who have been in a relationship have been abused by a current or former partner, and evidence shows there is a growing trend in men reporting being abused as well.”
“In addition to reviewing the means test the Legal Aid Board should consider sub- contracting out its work to its under-utilised private practitioner schemes. This would take pressure off the waiting lists in the law centres and permit the overworked solicitors and staff in the Legal Aid Board more space within which to deal with the already formidable waiting lists around the country.”
The Legal Aid Board’s website provides detail of waiting times for first consultations at law centres (as at September 2017), including:
- Cork South Mall Law Centre: 37 weeks.
- Longford Law Centre: 29 weeks.
- Blanchardstown Law Centre: 29 weeks.
Waiting times and other figures from centres around Ireland are available from the Legal Aid Board website.
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