Lay litigant fathers lose out in child access breach cases

The Dublin District Court is operating a highly-efficient form of ‘people’s justice’ and its model should be replicated for family law cases around the country.

Those are the findings of two legal academics Dr Sinead Conneely BL and Dr Róisín O’Shea following extensive empirical research on cases and outcomes before the courts.

They also note the efficiency and courtesy of Courts Service staff who deal with the public and help them access justice.

360 family law cases

The academics observed 360 private family law cases between 6 March 2017 and 8 April 2019.

17 court days were randomly selected and the findings covered 11 judges across five geographic locations:

• Dolphin House, Dublin,
• Kilkenny,
• Waterford,
• Wexford,
• Carlow.

“We have very positive findings about the District Court and its efficiency, especially in Dublin,” Dr Conneely says.

“How quickly people can access justice in Dublin is amazing really, it’s very, very fast. It’s very efficient and very close to the ground. In a way it works better than the higher courts.”

The researchers observed domestic violence cases before the District Court concerning incidents which had happened the night before.

In stark contrast, the academics had witnessed huge delays doing previous research on the Circuit Court.

“The District Court is much more accessible,” says Dr Conneely.

Breaches of maintenance orders were dealt with firmly by sitting judges and resulted in jailing in some cases.

Outcomes

However, the researchers noted that breaches of access orders had far more lenient outcomes.

They surmise that this is because access orders are generally breached by custodial mothers and judges are reluctant to impose sanctions that might adversely affect the children involved.

“There was a fear about how to punish [mothers],” says Dr Conneely. “They were more likely to warn, than to punish. I didn’t see anyone imprisoned. Because there was a sense that it would be harmful to children.”

The researchers believe that lay litigants, mainly fathers, who are victims of access order breaches, are unaware of other recourse that they have in law.

A total of 34% of the applications observed by the researchers related to maintenance and 28% of the applications related to access.

Of the maintenance applications, 44% concerned breaches and 100% of these applications were brought by the mother.

Almost half, or 48% of these cases, resulted in a summons or warrant and two fathers were jailed.

Summons

Of applications concerning access, 38% were for breaches of court orders. 100% of these applications brought by the father but only 29% of these cases resulted in a summons or warrant.

No mother was jailed for breaching an access order.

No application was made before the court under Part 4 section 60 of the Children and Family Relationships Act regarding enforcement for breaches of court orders, which would enable the court to order:

• Compensatory time, to address adverse effects,
• Reimbursement of necessary expenses, to exercise right to custody or access,
• One or both parents to attend a parenting programme,
• Attend family counselling,
• Direct to mediation,
• Views of the child must be heard.

“We haven’t seen these being implemented yet. We are wondering if, because these lay litigants aren’t represented, do they even know that they can ask the judge for these other orders, such as compensatory time or financial compensation.”

“The people seeking enforcement don’t know that these sanctions are available, because they are lay litigants.”

Rural and urban

It was noted that two different worlds exist between urban and rural courts. In Dublin, the majority of litigants were self-representing, while in the rural courts the reverse trend was noted with only 25% of all litigants self-representing.

In Dublin, family law cases were mostly taken by lay litigants and involved very small amounts of money, under maintenance orders.

“Everyone in family law is having the same kinds of issues,” Dr Conneely told Gazette.ie

“There are a lot of common problems. In Dublin in particular, people had very low incomes and just didn’t have money. If they were working, they had low incomes or else they were on social welfare.

“The maintenance monies passing back and forth between parents was very small, a lot were €35 a week.

“It was very noticeable how little money people had. When someone wasn’t poor, it was nearly head-turning, it was noticeable,” Dr Conneely observes.

Family law cases involving more money tend to end up in the higher courts, she says.

Class and marriage

“You are looking at differences in class and marriage.”

In Dublin the vast majority of cases were taken by lay litigants and this affected the way the hearing happened.

“If you have representation it’s a more traditional adversarial model,” says Dr Conneely, with questions and cross-examination.

Inquisitorial model

In a lot of cases in Dublin there were no solicitors at all, they were all lay litigants and the cases operated on an inquisitorial model.

The judge would ask questions to get the information needed and then make a ruling very quickly.

The academics noted a very different court style and remarked on the highly-skilled judges who quickly turned around case lists.

Exhausting

“In rural areas, we had days with a list of 90 cases in one day,” a workload Dr Conneely describes as brutally exhausting.

Judges in Dublin have become highly experienced in family law cases by sitting through them every day.

“They have the skillset suited to a family law court.

“In my opinion, there is a family law court operating in Dublin but not in the rest of the country,” says Dr Conneely.

Huge workload

“There is an enormous amount of family law litigation going on at District Court level all over the country. It’s a huge workload but it’s incredibly efficient, handling thousands of cases.”

The researchers’ interim findings were presented at the ‘In the Best Interests of the Child; Exploring Parental Alienation and Estrangement’ conference, at Trinity College, Dublin on 23 Mayand also at ‘The Future of Family Justice: International Innovations’ AFCC Annual Conference, in Toronto, Canada on 29 May.