The Law Society of Ireland is today highlighting the crisis facing the Irish family law system and calling on the Government to prioritise the modernisation of the family courts infrastructure, including the creation of a specialist division of family courts and judges.

Members of the Law Society’s Family and Child Law Committee will appear before a meeting of the Joint Oireachtas Committee on Justice and Equality today (20 February 2019) to discuss reform of the family law system.

“Family law is a dynamic and complex area of law and we have seen significant changes in recent years that reflect the evolving fabric of Irish society,” said Keith Walsh, chair of the Law Society’s Family and Child Law Committee. “Family breakdown, child custody, and protection of minors; these are some of the most difficult and sensitive court proceedings that exist.”

Crisis in family courts system

Mr Walsh explains, “The family courts system is in crisis. It is chronically underfunded, lawyers and judges are over-stretched, and our clients are often highly vulnerable – children and adults in need of urgent assistance, specialised care and dedicated facilities.”

Some of the key difficulties the Law Society will highlight before the Committee include:

• Inadequate security,
• An unsafe environment for litigants, and
• Unsafe working conditions for courts staff, lawyers and judges.

“The Law Society has been highlighting the safety issues within the family courts infrastructure in Dublin and nationwide for several years. Unfortunately, this came to a head during an incident in December 2018 involving a Circuit Court judge, a lawyer and a client in Phoenix House in Dublin.”

“The situation is particularly bad in Dublin in terms of the buildings in which the family courts are held. The childcare courts are currently housed in Victorian criminal law courts which are simply not fit for purpose.”

“Several years have passed since the announcement of a brand-new, purpose-built family courts complex on Hammond Lane, which the Law Society has very strongly advocated for. However, the momentum behind this project appears to have stalled.”

“It is vital that this valuable piece of courts infrastructure is progressed as a matter of priority.”

Specialist division of family law courts and judges

“A specialist division of family law courts and judges would help deal with family law cases more efficiently. It would be more likely that the same judges would be available to deal with cases that appear regularly before the courts and create more consistency.”

“It is not proposed to change the work undertaken by each court, but that only family law cases would be heard in these courts and they would take the family law cases out of the more general courts.”

The Law Society is also calling for more focus to be placed on settling cases earlier in the process. “Very active intervention in family law cases by judges, with an emphasis on resolution and alternative dispute resolution approaches, could result in significant savings in time and resources for all parties.” Mr Walsh also notes that judges would ideally also be trained mediators, collaborative lawyers or arbitrators.

“A dedicated family law courts structure throughout the country could remedy many of the problems currently faced.”

However, he explains, this will only work if:

• The family law courts system is properly resourced, integrated with alternative dispute resolution systems and the Legal Aid Board in court facilities,
• Proper premises are provided for the family law courts,
• Geographic court jurisdictions are merged to create a number (perhaps between ten and 14) dedicated and specialist family law courts, comprising District, Circuit and High Courts. The additional travel for litigants and lawyers as well as the locations for these centralised, specialist courts would have to be carefully considered. 

Greater emphasis on settlement and alternatives to court proceedings

The Law Society is highlighting the need for a rigorous case management system that would aim to facilitate early settlement discussions in divorce and separation proceedings.

“The Law Society would like to see more meaningful court appearances which have as their objective not only preparing the case for hearing, but also moving the parties towards alternative dispute resolution (ADR).”

“This would involve consistent judicial supervision of cases to ensure that ADR is considered before and after proceedings are issued and at all times during the case.”

Costs in family law cases

The Law Society will also address the issue of costs in family law cases before the Oireachtas Committee. “What the Law Society suggests in this regard is that a better way to look at costs is to encourage settlement at every possible opportunity and to improve and increase the focus on case management.”

“If there is any realistic prospect of a coherent policy approach to costs in family law cases, then either legislation or, as we are calling for, a specialist division of family law judges who will apply the law in a consistent manner is required.”

Reform needed for most vulnerable clients

“Family law practitioners are committed to their clients, but are exasperated by the lack of resources and facilities within the system,” explains Mr Walsh.

“The Law Society is calling for proper resourcing of the family law system to ensure that the welfare of children and families is prioritised. What is needed is the political will to drive the necessary reforms through to completion.”

Family Law – The Future

Further detail on many of these issues is contained in the Law Society’s 2014 report, Family Law – The Future, which is available to download here.

• Download Family Law – The Future

It is important to note that the report’s contents must be considered in the context of any relevant legislation enacted since the report’s publication in 2014.

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