Mary McMorland: The impact Of Covid-19 restrictions on family law



Mary McMorland

The family law courts continue to operate during Level 5 restrictions. However, to protect staff and the wider public, the courts are of coruse trying to reduce numbers of people attending the courts, writes Mary McMorland.

The courts’ staff and practitioners have done what they can to try and deal with family law cases throughout the pandemic. The problem is a lot of court buildings are old and not set up to deal with social distancing. The Courts Service have asked that people do not attend court unless necessary. People are asked to not bring family members or supporting people with them to court in a bid to bring down the number of people attending court.

The reality is that people are attending court for their applications and must wait outside for their case to be called. Lawyers are having to hold consultations and settlement talks outside the courthouses in the rain and wind. It exacerbates an already stressful situation for people. The problem again is lack of court sittings. This leads to many cases being listed when the courts are sitting.

In the District Court

Firstly, the District Court continues to hear all urgent matters which are as follows:

  • Domestic Violence applications
  • Childcare and Child welfare cases
  • Breach of Access orders
  • Unreasonably withholding /not allowing access to take place
  • Breach of maintenance orders

If someone has a case which they consider to be urgent, but is not included in the above list, they can contact the relevant court office and indicate what the urgency is and why it should be heard. The relevant judge will make a decision as to whether the matter will be listed or not.

In the Circuit Court

Similarly, the Circuit Court will continue to hear urgent cases. Again, there is some Judicial discretion as to what can be deemed as urgent.

However, all non-urgent family law matters have been adjourned. The majority of matters coming before the Circuit Court are Divorces and Judicial Separation. Therefore, all these cases are now placed on a list to fix new dates for hearing.

There are facilities in place for non-contentious matters to be heard and ruled on remotely. Therefore, Consent Divorces (straight forward Divorces where all matters between the parties have been resolved) can proceed digitally. This was trialled in Dublin in the last lockdown and is working very well. However, one or both people seeking the Divorce must attend at their solicitor’s office for the remote hearing.

It was very frustrating when it was announced that the Circuit Court family law matters were to be adjourned. From the point of view as a practitioner in the West of Ireland, there are so few actual family law sittings in Counties in the Northwest and West of Ireland. In Dublin, there are three dedicated family law judges that ordinarily sit Monday to Friday. We in Sligo could be lucky to have 4 family law sittings a year. Many people have been waiting in excess of one to two years to finally get a date for hearing. For it to be adjourned to a date completely unknown is devastating for them.

Practically speaking, the Circuit Courts have dealt with Covid-19 and implemented safeguards that were working extremely well. Cases were assigned a time slot and asked not to bring extra people with them to court. Family law cases ordinarily do not require a lot of people or bodies in a courtroom. The proceedings are held in camera which means in private. The only people in the court are the two people involved, their solicitors and barristers, the judge and the registrar. In most cases, the only additional witnesses required for family law case are perhaps an accountant and an estate agent. There certainly could be provision for these witnesses to give their evidence remotely if necessary. Family Law cases are the one area of law that could continue through Level 5 restrictions, obviously with people adhering to public health advice, especially in situations where it could be some time before a case can even be listed for hearing. Again, this further adds to the necessity for the courts to hear these cases if they can. There will be a backlog of cases and no plan with how this will be cleared.