England-and-Wales judges share family-law experience

The family law conference at the Law Society on 14 July heard that, while the District Court had a very important function, it is a court of summary jurisdiction, which should not hear complex family law cases.

Planned family-law changes under the Family Courts Bill include transferring certain cases from the Circuit and High Court to the District Court.

The start of the journey towards unifying the family-law system in Ireland began with a report in 1996, the conference heard.

The Justice Oireachtas Committee made recommendations in 2019, but there are concerns about the proposed system pushing cases down to the District Court.

The bill is currently at the second stage, and proposes significant changes to the Irish family-court system.

Adequate resources and a comprehensive approach was needed in order that the aspirations of the Family Courts bill can be fulfilled, the conference was told.

The Family Courts bill provides for the establishment of a Family High Court, Family Circuit Court and Family District Court as divisions of the current court structures.

Jurisdiction and assignment of judges to different courts will be based on training and experience, ensuring ongoing professional training.

Concurrent jurisdiction is granted to the Family Circuit Court and Family District Court for childcare and access cases.

The establishment of a Family Law Rules Committee or Family Law Sub-committee aims to regulate court practice and procedure.

The family-justice system must focus on the welfare and best interests of children, the conference heard.

While the commitment to create a specialist family-justice system is praiseworthy, practical measures are needed to ensure its success.

Delays

While unnecessary delays should be avoided, enough time must also be given to hear relevant evidence for difficult decisions.

The new system aims to have specialised judges at each level to handle family matters appropriately.

The bill establishes guiding principles, emphasising the welfare of the child as a primary consideration.

Speakers stressed the importance of considering the best interests of the child and hearing their voices in court proceedings.

The best interest of the child is constitutionally recognised in Ireland under section 42 of Bunreacht na Eireann.

Children capable of forming their own views should have their wishes ascertained and given due weight, the conference heard.

The voice of the child is taken into account in various contexts – including child protection, guardianship, and education.

The bill encourages and facilitates alternative dispute-resolution approaches, such as mediation, to reach consensus.

The use of alternative dispute-resolution is encouraged, unless it is deemed inappropriate for the specific case.

Active case-management practices – including time limits and word counts for submissions – are encouraged.

The court system should strive to achieve early resolution, and minimise contention and conflicts, the conference heard.

The new family-court system should adhere to international and national standards for protecting children's rights.

A holistic support service should be available to families, as well as specialist psychologists and other qualified professionals, when needed.

Unregulated

The situation in England and Wales previously involved an unregulated use of experts, leading to delays in cases, speaker Ms Justice Lucy Theis, judge of the family division of England and Wales, said.

Subsequent changes to the family procedure rules introduced a more controlled approach to using experts.

The Children and Families Act of March 2014 in England and Wales reinforced the requirement for experts only when necessary, and called for vigilance in identifying and instructing experts, particularly unregulated ones.

Reports from experts should be well-structured and easily identifiable regarding their expertise in relation to the case, the judge said.

Delays in obtaining expert reports was a significant problem, especially in cases with a shortage of specialised experts, the conference heard.

Speaking on jurisdiction and allocation of cases, senior circuit Judge Rachel Hudson said that family-court areas in England and Wales varied greatly in size and demographics, leading to different challenges.

Designated family judges have overall responsibility for family justice in their respective areas and are responsible for performance, meeting timescales, and finding solutions for families.

Continuity of case management is critical for families.

Communication and allocation of cases are done electronically, with a team of legal advisers managing the process.

Missing persons cases had placed a significant burden on the court system, the judge said.

Despite the challenges, however, the family court had brought significant benefits, and planned changes would improve family proceedings here.

Experienced judges

Peter Doyle, chair of the Law Society Family Law Committee, said that it was very important to have a separate family-law division, with experienced judges.

“We need resources if we are going to make a success of this,” he said.

Special Rapporteur for Children Caoilfhionn Gallagher KC said that it was important to avoid insularity, and learn from colleagues in the English justice system.

The goal to create a world-class specialist family-justice system was commendable, she said, and must move from aspiration to reality.

Sir Andrew McFarlane (President of the Family Division of England and Wales) told the attendees that, before the 1990s, there were three levels of courts in England and Wales: High Court and Family Division; County Court with circuit judges; and Magistrates Court dealing with maintenance orders and child protection proceedings.

There were two separate sets of rules for the top two levels (High Court and County Court) and Magistrates Court, managed differently and dealing with various cases – including criminal charges, divorces, custody, and more.

The Law Commission was founded in 1965 and recommended the creation of an impartial unified family court with uniform rules, but the government did not initially progress with it.

Later, due to a child sex-abuse scandal, two separate reports on private children's law and care proceedings were merged into the Children Act, unifying family law principles.

Subsequent changes led to the establishment of a single family court in 2014, with designated family judges and a single point of entry for cases.

The volume of cases, especially those involving litigants in person, was a major challenge for the system, he said.

Initiatives are being taken to reduce the number of unnecessary court applications and improve the process for the public.