In the family way

Reform in family law is long overdue, and the Family Court Bill General Scheme is a welcome start. However, the costs of section 32 reports, delays in litigation, a lack of adequate court buildings – and zero allocation of resources for the proposed changes – are all serious causes for concern, says Keith Walsh.

Justice Minister Helen McEntee published the draft heads of the Family Court Bill, known as the Family Court Bill General Scheme, on 29 September 2020.

The next legislative step would usually be the examination of the general scheme by an Oireachtas committee before the text of the bill was finalised, and the committee could invite stakeholders to participate to discuss the general scheme.

However, it is not clear whether this will happen in the case of the Family Court Bill. In February 2022, Minister McEntee stated that the Government approved the drafting of a Family Court Bill along the lines of the general scheme, and this has been referred to the Office of the Parliamentary Counsel for drafting.

Work is progressing on drafting the bill, with a view to its publication in 2022.

The bill is part of an overall ‘Family Justice Strategy’, which is being developed by the Family Justice Oversight Group. This includes consultation with the public, stakeholders, and with children. The minister indicated that this strategy would be published soon, but no date has been confirmed.

The Family Justice Oversight Group is chaired by a senior official of the Department of Justice and includes representatives of the judiciary, the Courts Service, the Legal Aid Board, and the Department of Children, Equality, Disability, Integration and Youth.

Over the past 12 months, representatives of the Law Society, DSBA, and the Bar have contributed to the work of the oversight group in an effort to ensure that the new Family Court Bill is fit for purpose.

They made comprehensive submissions on the general scheme in February 2021 and were critical of the absence of any representatives of the solicitors’ or barristers’ professions on the oversight group, calling for representation. This now seems unlikely to happen.

Fundamental changes

It would also be preferable, given the fundamental changes proposed to the system of family law in Ireland, if the general scheme of the bill were to be subject to scrutiny by an Oireachtas committee prior to the drafting of the bill itself, as this would give the opportunity for further engagement with stakeholders and members of the public, as well as public hearings on the proposed changes, with additional scrutiny from members of the Oireachtas.

What is expected in 2022 is the publication of the Family Justice Strategy and the Family Court Bill.

What is not expected in 2022 (or any time soon) is for the family courts building in Hammond Lane to start, nor that there will be confirmation that the changes proposed in the general scheme (and eventually in the bill) will be properly resourced.

As we have seen from the rushed introduction of the Child and Family Relationships Act 2015, unless family law changes are properly resourced, all the costs are passed onto the litigants.

While the changes in the 2015 act were welcome, the costs of section 32 reports and the delays in litigation necessary to accommodate the appointment of experts, the release of reports, and the cross-examination of experts has led to a very significant increase in the time taken up by access, custody, and guardianship cases – but without the consequent increase in capacity of the District Courts.

The day-to-day challenges for litigants, judges, practitioners, and courts staff in the District family court in Dublin and around the country are immense, and increased resources are required urgently.

In addition, the lack of adequate court buildings for family law in the District Court in Dublin, particularly in Dolphin House and the Bridewell, is still unacceptable. While the Courts Service for many years after the economic collapse received very little funding for infrastructure, that situation changed some years ago.

However, family law in Dublin remains the poor relation, and will do so until measures are put in place to house the District family court, pending Hammond Lane being completed.

Proposed reforms

Families are to be put at the centre of the new family-law justice system. Family law will get new specialist divisions within the current court structure – that is, separate family law District, Circuit and High Courts within the current system, but with new family court procedures that have the aim of less adversarial dispute resolution, and a new family-law rules committee to deal with all family-law jurisdictions to ensure consistency of approach.

It is proposed to create new, larger Family District and Circuit Court areas. This would allow specialist family courts to have jurisdiction over what would previously have been separate District/Circuit Court areas.

It is also proposed that family courts would be overseen by a ‘principal judge’ in District, Circuit and High family courts (with the president of each court still in place).

Other proposed reforms include specialist knowledge and training for be mandatory for family court judges; a greater emphasis on alternative dispute resolution and more effective court processes; access to supports for families in family-law disputes (but no detail on allocation of resources or specifics on the supports), greater access to court documents currently restricted by the in camera rule, which relates to cases before the court; and plans for consent cases to be dealt with by the District Court in judicial separation, divorce, and cohabitation cases where, previously, this jurisdiction could only be exercised by the Circuit or High Court.

The general scheme proposes to change the jurisdiction of the courts in judicial separation, divorce, and dissolution of civil partnership and cohabitant proceedings in order to enable jurisdiction to be exercised by the District family court and Circuit family court. The District family court may be permitted to rule on consent divorce, judicial separation, and cohabitation cases, in addition to the Circuit family court.

It appears that the family High Court is losing its jurisdiction in judicial separation, divorce, and dissolution of civil partnership and cohabitant proceedings, which it concur-rently holds with the Circuit family court.

Positive and negative

The main positive aspects are that reform is needed (but so are resources), and that many of the proposed reforms are very progressive and necessary.

But there are several negative aspects, as well. There are immediately obvious issues for court users in relation to dealing with more family-law cases in the District Court, given that the court is already oversubscribed.

If consent divorce, judicial separation, and cohabitation cases are to be added to the District Court jurisdiction, that will put an already overstretched and under-resourced court under unsustainable pressure.

The High Court has an expertise in lengthy and complex family-law cases. It would make sense for these cases (where the value of property involved is in excess of €3 million) to remain in the High Court in respect of judicial separation, divorce, and the dissolution of civil partnership and cohabitant proceedings.

Figures from the latest Courts Service report indicate that, in 2020, a total of 46 applications for divorce and 19 applications for judicial separation were made in the High Court, whereas the corresponding applications in the Circuit Court were 5,220 and 617, respectively.

Also, the Family Justice Oversight Group (which is tasked with driving the project of family-law reform) is composed entirely of public servants. There are no NGOs/stakeholders, members of the Law Society, Bar, bar associations, or members of the Family Lawyers’ Association involved.

And no resources have been confirmed, as yet, for the proposed changes. This is a cause for concern, as there can be no real reform of the nature proposed without substantial resources being committed.

Issues not raised

There has been no mention of the Hammond Lane facility in the general scheme or reports, and an update is awaited from the Department of Justice. Similarly, specialist county registrars for the family Circuit Courts are required, but not mentioned.

One concern regarding a separate family division is that it may separate the practice of family law from other areas of law, as well as from long-established practice and procedure in the civil courts. Lord Sumption, in the 2013 English case of Prest v Petrodel Resources ([2013] UKSC 34), stated: “Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different.

If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere.”

It is important that family law, which is already held behind closed doors due to thein camera rule, ensures that its procedure, as well as its decisions and judgments, are widely publicised to ensure confidence in the system.

The Prest case illustrates the dangers of separating the family courts from the general legal system, since bad practices may creep in if a court is separated from the general system, particularly where there is an in camera rule preventing scrutiny or discussion, and where almost all Circuit family-court decisions are not published.

In Prest, the judge at first instance fell into error, having made a finding in relation to piercing the corporate veil of a company that was not in accordance with general company law. The judge purported to disregard the separate legal personality of the company in order to impose a liability on it. This should properly have been that of the husband only, according to Hale L in her judgment in the same Supreme Court case.

One of the very serious issues faced by practitioners and litigants in the family courts is the lack of certainty of outcome in applications for ancillary relief in the context of judicial separation and divorce.

In his report for the Law Society’s Child and Family Law Committee, published in 2019, Dr Geoffrey Shannon recommended that a set of principles for the determination of ancillary reliefs, including all maintenance orders, lump-sum payments, settlements, property adjustment orders, and pension adjustment orders be developed in order to provide greater clarity and certainty in the determination of ancillary orders.

He went on to state: “These principles, in conjunction with the factors set out in section 20 of the Divorce Act, ought to be referred to in each and every case, albeit not necessarily applied. This would provide much needed clarity and confidence for those seeking a decree of divorce, and also support the judiciary in making decisions.”

The search for clarity and consistency in judicial decision making in family law may be provided by a specialist family-law division of the judiciary, but it is very important to recall that all leading family-law judgments in the area of judicial separation, divorce, and cohabitation have come from the superior courts, and the High Court in particular.

The attempted removal of the High Court from these family cases is not a positive development, as the High Court has traditionally led the way in clarifying and illuminating family law, particularly in the context of judicial separation and divorce.

Finally, again, the lack of resources traditionally provided for family law, and the requirement for additional court buildings, staff, and expenditure in order to give effect to the proposed scheme, mean that these reforms may be a long time in coming.

Plus ça change

The Law Reform Commission’s 1996 Report on Family Courts proposed reforms, many of which never came to pass. For example, the report recommends that “only those judges should be selected who, by reason of training, experience and personality, are suitable persons to deal with matters of family law”.

The 2020 general scheme recommends that a family law judge should be “by reason of his or her training or experience and temperament, a suitable person to deal with matters of family law”.

Reform is badly needed in family law, and the general scheme is a welcome start towards that reform. We await the publication of the draft Family Justice Strategy and the Family Courts Bill with interest, as they will undoubtedly radically change the way family law is conducted in this jurisdiction – hopefully for the better. 

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