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Family deal

The Cabinet has approved the Family Court Bill 2020, with the aim of putting families and children front and centre in the family courts system, explains Helen Coughlan.

Family law is set to undergo a seismic change. The Family Court Bill 2020 aims to reform the family justice system so that courts are more efficient and user-friendly, and put families and children front and centre in the process.

The Law Society’s Family and Child Law Committee made submissions to both the Joint Oireachtas Committee on Justice and the Department of Justice’s Family Justice Oversight Group on the proposed legislation.

While broadly welcoming the reforms, significant investment, both in terms of infrastructure and personnel, is required to create a family justice system to meet the needs of modern Ireland.

The general scheme of the bill proposes the following major changes:

• The establishment of a District Family Court, a Circuit Family Court, and a Family High Court as divisions within the existing court structures (specialist judges will sit in these courts, which will have their own special rules),
• The creation of regional District and Circuit Family Courts,
• The elimination of the jurisdiction of the High Court to hear judicial separation, divorce, civil partnership, cohabitation, and other family law disputes,
• Increased jurisdiction of the District Court to hear judicial separation, divorce, civil partnership, and cohabitation cases,
• Active case management of cases, and
• Greater emphasis on alternative dispute resolution (ADR) and, in particular, mediation.

The guiding principles (Head 5) of the draft legislation refer to promoting ADR to resolve family disputes and conducting proceedings in a family-friendly way to reduce conflict and, in cases involving children, ensuring the best interest of the child is a primary consideration.

On a promise

Promises of family law reform date back to the 1970s, when the issue of a Family Law Court was on the agenda of the Law Reform Commission. In the intervening period, we have seen several reports published, but little progress in implementing meaningful change.

Excellent legislation has been enacted to reflect the changing reality of contemporary family life. Unfortunately, this has not been matched with the necessary infrastructure and resources to support the new legislation. This has left Ireland with first-world legislation but third-world infrastructure.

The creation of District and Circuit Family Court divisions will transform the family justice system. The legislation provides for a judge to complete a three-year term in the Family Court. Currently, some District and Circuit Court areas have unassigned (or travelling) judges presiding. This leads to a lack of consistency and can require re-hearing of matters.

This provision will create efficiencies and reduce time spent in court. It is also welcome that judges may have to undertake such courses or training as may be required by the Judicial Studies Committee. This is important in ensuring that any judge appointed is fully trained in the complexities of family law.

Regional hubs

District and Circuit Family Courts will require proper resources in terms of infrastructure and personnel. An increase in the number of judges at District and Circuit Court level is required to allow these new courts to be appropriately staffed.

The legislation also provides for the creation of new districts, divided into “convenient geographic areas”. It remains to be seen where these regional hubs will be located, and this will have significant implications for both court users and family law practitioners.

There are valid concerns regarding access to justice if centralised courts are established around the country. A functioning justice system requires a reasonable method of accessing that system, and justice cannot be so far removed from the reach of citizens so as to make it prohibitive.

If family law courts are centralised, unless there is a very good public-transport system available, this will cause hardship for people. Increased travel times and associated costs may affect those who can least afford it, at a time of great distress in their lives. Often, the most vulnerable members of society are involved in family and child-care proceedings, particularly in the District Court.

However, there are advantages to consolidating services. For example, there is a benefit to developing properly resourced regional hubs to provide a ‘one-stop shop’ of services such as mediation, voice-of-the-child/welfare experts, and family therapies, as well as courtrooms in a focused holistic setting.

It is vital that sufficient consideration is given to public transport and the physical infrastructure of such facilities, including proper consultation rooms and waiting facilities. The current situation – where family court users may have to wait five or six hours for cases to be called, and the lack of private consultation rooms, often with instructions taken outside the court building in full view of the general public – cannot continue. This is particularly so if we are committed to protecting citizens at the most vulnerable time of their lives.

Problematic expansion

The proposal to expand the jurisdiction of the District Court to deal with matrimonial cases is problematic. Expecting an already overstretched and under-resourced District Court to deal with more cases is not feasible. The District Court is already under severe pressure due to the huge volume of cases it is handling.

In tandem with increasing the work of the District Court, the draft legislation envisages the diminution of the jurisdiction of the High Court. The removal of judicial separation and divorce from the High Court will have far-reaching consequences, and will have a detrimental impact on the development of family law.

The High Court operates very efficiently in hearing family law matters. There is consistency in the High Court, with a judge specially assigned to deal with family law matters and a support judge.

The Constitutional status of the High Court as a court with full original jurisdiction is central to the development of family law. The High Court delivers written judgments, providing a rich legacy of jurisprudence in the area of family law.

This gives invaluable guidance to practitioners in the interpretation of the legislation on such provisions as ‘proper provision’. These written judgments provide legal certainty and put flesh on the bones of legislation. It is vital that this body of case law continues to be generated.

The emphasis on ADR is welcome. This is important as a means of reducing conflict for families. ADR should be actively promoted and facilitated wherever possible, having regard to the facts and circumstances of every case and the needs of individual clients.

The proposed legislation specifically mentions mediation – ADR should be defined to include collaborative law, lawyer-assisted settlements, and arbitration.

In addition, a system of regulation of mediators should be introduced to ensure a uniform standard in the provision of mediation services. ADR should be seen as a useful mechanism for resolving family law disputes, not as a cost-saving measure. It is not a panacea to resolve all family law disputes, particularly where there is domestic violence.

Top priority

Active case management is highly desirable in family law proceedings. Coupled with this is the need for e-filing and e-court documents to simplify the application/motion process, and minimise the cost and time for both the Courts Service and practitioners.

The Family Law Rules Committee (proposed in this legislation) should consider, as a matter of priority, the development of e-filing and the use of technology for remote hearings and case management.

This recommendation takes on an added emphasis in the context of EU Regulations 2020/1783 and 1784, which will become binding in July 2022 and will make e-filing the norm in cross-border child and family law cases.

The Family Law Rules Committee will be pivotal in determining the success of the proposed family court system.

Due to space constraints, I have not been able to address the issue of the voice of the child and how this can be properly addressed. I will deal with this in a separate article, as it requires and deserves adequate space to set out the issues in detail.

The Family Court Bill is currently undergoing pre-legislative scrutiny, and it is anticipated that it will be at least a year before it is enacted – another year of waiting for families in crisis.

I wish to acknowledge the contribution of the Family and Child Law Committee in preparing very detailed submissions, and in particular the expertise of Dr Geoffrey Shannon, who chaired a specially convened subcommittee to prepare submissions for the Joint Oireachtas Committee and Justice Oversight Group.

The submissions can be accessed at 
www.lawsociety.ie/Solicitors/Representation/Submissions

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