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District Court disaster

Dr Carol Coulter has argued that the proposal to allow the District Court to hear judicial separation and divorce applications should be welcomed. Keith Walsh SC argues to the contrary

Dr Carol Coulter, writing in the January/February Gazette (p20), argued that my concerns (raised in a winter Parchment article) that the provision in the Family Courts Bill 2022 to move divorce and judicial-separation cases from the Circuit Court to the District Court were misplaced, and that the arguments against extending the jurisdiction of the District Court (following the establishment of a dedicated family-law jurisdiction at all court levels) do not stand up to scrutiny.

The only one

However, Dr Coulter, in her article, only referred to one of nine concerns raised by me – namely that the transfer of almost 6,000 judicial separation and divorce cases from the Circuit to the District Court would overwhelm the system.

Dr Coulter relies on historical data she gathered in 2006-2007, based on 458 cases. She stated that ‘only’ 9% of 364 judicial separation cases went to a full hearing and, from an analysis of the contested cases, she claims that less than 5% of the total cases featured complex financial issues.

No reference is made as to whether cases ruled on consent featured complex financial issues.

No reference is made to the stage at which the judicial separation case was settled: was it settled prior to the issue of proceedings; was it settled immediately post issue of proceedings; were any interim applications made; was a defence and counterclaim filed; was case progression triggered; how many attendances at case progress occurred; was the case resolved on the date of the hearing?

Dr Coulter mistakenly states that there is no obvious reason why “the potentially 90% or so of cases (or whatever the proportion may be now) where the order is granted on consent cannot be dealt with by the District Court”.

She has made no provision whatsoever in her argument for any of the following, all of which were raised in my article:

1) The work and court time taken up by cases as they move on the journey through the Circuit Family Court, including default of appearance and defence applications, interim applications for section 32 reports where there are children, interim applications for maintenance, case- progression hearings, and applications for the court’s directions on any matter. Dr Coulter seems to imply that cases settled on consent only require enough court time to rule the terms of settlement when, in fact, she has not taken into account the stage at which the terms are ruled. It is correct to say that many cases are settled, but they are all settled at different times in the Circuit Court journey, and each case will usually take some element of court time.

2) The fact that the infrastructure of the District Court is unsuitable for the conduct of divorce and judicial-separation cases – even though this is dealt with in some detail in my article.

3) The summary nature of the District Court, again as dealt with in some detail in my article.

4) The increase in the volume of family-law cases in the District Court to 55,205 in 2022, based on the Courts Service figures.

5) The fact that most judicial-separation and divorce cases will require more court time than the usual District Court summary matter.

6) The displacement of other cases dealt with in the District Family Court due to the likely reduction in time available for domesticviolence, guardianship, custody, access, and maintenance cases, leading to further delays.

7) The fact that the District Court is unsuitable to deal with judicial separation, divorce, and cohabitation cases, as it is a court of summary jurisdiction. The Law Reform Commission, in 1996, stated: “We do not believe that remedies such as divorce, annulment, or judicial separation should be made available at the level of a court of summary jurisdiction.”

8) That the transfer to the District Court of divorce and judicial separation is out of step with the entire courts system.

9) That no thought has been given to the financial implications of the proposed transfer and the resources required to provide new courthouses, set up entirely new District Court processes (when there is already a suitable system in the Circuit Court, which has detailed procedures in place to deal with interim applications, case progression, and applications for judgment in default).

10) That the objectives of the Family Courts Bill could be achieved without the necessity to move divorce and judicial-separation cases down to the District Court, namely by changing the current Circuit Court system to make it more efficient, which could be done by changing the rules to introduce earlier judicial intervention in cases – considering the imposition of cost sanctions where there is abuse of process or delay, improving case management of cases, granting further incentives to alternative dispute resolution, and earlier settlement of cases.

11) The most obvious result of the transfer to the District Court is likely to be frustration and delay. It is not likely to encourage quicker resolution of cases, nor lower costs, nor the management of cases more efficiently. Instead, it is likely to result in a system that is in need of overhaul being replaced with a system that does not work, and making things worse rather than better for those unfortunate enough to have to navigate this system.

12) The changes, if implemented, are likely to result in an ill-thought-out, under-resourced system replacing one that could be improved at a fraction of the cost. The likely result will be gridlock, delay, and absence of access to justice for those forced to seek a court hearing for judicial separation, divorce, cohabitation, and civil partnership cases.

Collateral damage

It should be apparent that the proposed move to the District Court will ultimately backfire on the most important people in the courts system – the litigants and their families. They will face delays, potentially higher costs, longer waiting times for everything – interim applications, contested hearings, and potentially also to rule settlements.

Litigants and their families going through domestic-violence cases, access, custody, guardianship, and maintenance cases already in the District Court system are likely to be collateral damage.

The influx of 5,000 to 6,000 additional divorce and judicial-separation cases to the District Court, whether they all settle at various stages or whether some of them run to full hearing or not, will undoubtedly cause further delays in an already overcrowded and under-resourced system.

Finally, Dr Coulter may have read further on in the Parchment article (titled ‘Dublin family courts, Hammond Lane – nine years on’), in which I referred to the Groundhog Day-like announcement that construction will start on the new Family Justice Complex in 2026 and which may be built by 2028.

My view is that we are unlikely to be in the new courts by the end of this decade. It is nothing short of scandalous how low down on the priority list is family law – and the treatment of families who are trying to resolve very important family-law issues for themselves and their children.

They are currently condemned in Dublin and around the country to litigate in unsuitable, unfit, and frankly inhumane conditions. One of the few things that could make that worse is by transferring divorce and judicial separation cases to the District Court.

Keith Walsh SC is a family-law solicitor based in Dublin. He has written extensively on this issue, on family law, and on practice and procedure in the District and Circuit Courts.