Keith Walsh SC

The Family Courts Bill 2022 provides for the establishment of a Family High Court, Family Circuit Court and Family District Court as divisions within the existing court structures. The aim is the development of a more efficient and user-friendly family court system; a system that puts families at the centre of its activities, facilitates access to specialist supports and encourages the use of appropriate dispute resolution in family law proceedings. Most of the changes proposed are long overdue and to be welcomed.

However, there is one major concern which if not addressed and changed will result in the much-needed changes to the family justice system having the opposite effect to that intended. This major concern is the proposal to move divorce, judicial separation and cohabitation cases from the Circuit Family Court down to the District Family Court by increasing the jurisdiction of the District Court.

There is a serious concern among the stakeholders in the family justice system that this will increase delays, effectively restrict access to the family courts and reduce access to justice by those seeking a divorce, judicial separation and will displace existing cases such as domestic violence, access, custody, guardianship, maintenance and childcare cases in the District Court.

Concerns

1. The District Family Court is already overcrowded, and an influx of divorce and other cases will displace existing family law cases causing further delays for all family litigants and reducing the quality for all litigants

a. An increase in the volume of cases

The latest Court Service figures show an increase in civil litigation in the District Court in 2022 of 39 per cent from 2021. While this is an unprecedented increase it shows the pressure on the District Court system. Even if we limit our examination to the numbers in the area of family law cases, we can see that currently there are the following numbers of family law cases which started in the District Court 2022:

• Guardianship, custody, access — 10,822
• Maintenance — 5,862
• Domestic Violence — 23,536
• Childcare — 14,985
• 55,205 in total

If the current Circuit Family Court divorce and judicial separation cases alone which were 5,966 applications in 2022 are transferred down to the District Family Court, then this will put much further pressure on the District Court system.

b. Most Judicial Separation and Divorce cases require more Court time than the usual District Court Summary matter

Cases involving judicial separation and divorce in the Circuit Court when contested rarely take less than two hours or half a day. Many cases take one day and some other cases take two or more days to complete. The movement of almost 6,000 divorce and judicial separation cases will have a very significant negative impact on the time available for other family law cases.

c. Displacement of other cases dealt with in the District Family Court

It is likely, based on previous experience, that if divorce and judicial separation cases are moved down to the District Court that this will result in less time being available for other family law cases including domestic violence, guardianship, custody, access, maintenance cases leading to further delays. There is significant potential for judicial separation and divorce cases, which are much more complex and lengthier than other District Court cases, to take up most of a District Court Judge’s Court day to the detriment of other cases.

2. The District Family Court is unsuitable to deal with Judicial Separation, Divorce and Cohabitation cases as it is a Court of summary jurisdiction and the Law Reform Commission in its report on the Family Law Courts in 1996 were against any such change

“Until decisions are made on these broader questions [of unified family courts and review of the courts’ system], we feel obliged to make a choice between Circuit and District levels. On balance, we believe that our provisional recommendation in favour of a Circuit level Family Court is correct. We do not believe that remedies such as divorce, annulment or judicial separation should be made available at the level of a court of summary jurisdiction. Therefore, if there is to be a unified family law jurisdiction, as we strongly believe there should be, it must at this time be established at Circuit level.” [para 4.21 LRC Report on Family Courts LRC 52-1996]

3. The infrastructure of the District Court is unsuitable for the conduct of Divorce and Judicial Separation cases

The Circuit Court deals with lengthy trials on a regular basis. It has developed the administrative infrastructure to deal with these cases which, like judicial separation and divorce, may involve interlocutory applications such as applications for maintenance, directions with regard to access, custody, domestic violence, applications to appoint child assessors, orders to freeze monies which are injunction type orders.

The management of these cases requires another court official called a County Registrar to deal with the volume of these cases and also in the case of family law to deal with additional mini-hearings called Case Progression hearings. The volume of family law work in the Circuit Court for this official and the administration involved is significant.

The District Court has no history of dealing with longer trials nor of having a County Registrar and the Family Courts Bill does not provide for the appointment of such an official nor does it provide any system of dealing with the type of cases such as Judicial Separation and Divorce.

4. Out of step with entire Court system and no thought for financial implications of this change

The proposal in the Family Courts Bill is to increase the jurisdiction of the District Court to €1 million and to permit the District Court to deal with judicial separation, divorce, civil partnership, cohabitant cases where the market value of the property involved is less than €1 million. This would mean that over 80 per cent of all such cases would now be dealt with in the District Family Court. This is completely out of step with any other such cases in the District Court.

The current monetary jurisdiction of the Circuit Court is up to €3 million for family law cases and for other cases relating to land and certain actions for ejectment generally.

The current monetary jurisdiction of the District Court is €15,000.00. The District Court has no jurisdiction in equity and cannot hear cases where equitable reliefs such as declarations, injunctions or specific performance are sought.

The explanatory and financial memorandum published with the Family Court Bill 2022 states that the primary costs arising from the Family Courts Bill will arise from the establishment of the Family High Court, Family Circuit Court and Family District Court and will relate to the renovation and modernisation of court buildings, capital ICT costs, judicial appointments and support staff. The delivery of Family Court buildings and ICT infrastructure will be part of the wider necessary process of renovating, modernising and ICT enabling courthouses where the Family Courts will be located. Construction of a purpose-built family law court complex at Hammond Lane in Dublin is a key project funded under the National Development Plan 2021-2030.

While this acceptance that financial resources are required is welcome, no mention is made of funding access to specialist supports for families going through relationship breakdown.

Without sufficient resources, and family law has never received resources comparable to either criminal or civil or commercial courts, the reforms proposed will make the situation worse not better. Given the failure on behalf of successive governments to properly fund Family Justice in Ireland there is a very significant concern that if cases are simply transferred down to the District Court without any resources or administrative or other changes that the system will be even worse than predicted.

5. Could the objectives of the Bill be achieved in a different manner in relation to the change in jurisdiction?

If the objectives of the change are to reduce legal costs and to make the system of Divorce and Judicial Separation more efficient then this can be achieved without a change in the jurisdictions. The immediate appointment of a task force of diverse stakeholders in the family justice system with a brief to reform the current District and Circuit Court procedures with a view to making the system more efficient is one alternative. It is submitted that the objections of reducing legal costs and making the system more efficient could be achieved first of all by changing practice and procedure in the Circuit Family Court by introducing more emphasis on cost penalties for those who delay cases, further incentivising ADR and early resolution and ensuring earlier judicial involvement. The current system of court pleadings could be overhauled as could the Case Progression system. Almost all of these changes could be made within the current system with less cost and far greater effectiveness than transferring divorce and judicial separation cases from the Circuit Court to the District Court.

6. No cost savings are likely to result from this change however frustration and delay is the most obvious result

The transfer of Divorce and Judicial Separation cases from the Circuit to the District Court is unlikely to result in:

1. Quicker resolution of cases
2. Lower costs
3. More efficient management of cases

Instead, it is likely to result in a system in need of overhaul being replaced with a system that does not work and making things worse rather than better for those unfortunate enough to have to navigate this system. It is highly unlikely that cost savings will result if cases cannot be processed efficiently and if delays are in built into the system.

7. Huge concerns that any changes will not be properly resourced

Given the failure to progress the Family Court in Hammond Lane in 2023, and given the historic absence of proper funding for the family law area, it is difficult to see how any proposed changes would be properly resourced which will mean that an ill thought out under resourced system will replace a system, which could be improved at a much lower cost. The likely result is gridlock, delay and absence of access to justice for those forced to seek a court hearing for judicial separation, divorce, cohabitation and civil partnership cases.

Conclusion

While the proposed transfer of divorce and judicial separation proceedings from the Circuit Court to the District Court may have the best of intentions, in practice it is likely to result in significant delays for all litigants in the District Court, gridlock for judicial separation and divorce applicants and result in a system that currently is in need of overhaul being replaced with a system that does not function.

There are other means of actually achieving the same objectives and these options should be pursued but the move to the District Court must be resisted immediately or it will come to pass if no voices are raised against it.

• Keith Walsh SC is a prominent family law solicitor and partner in Keith Walsh Solicitors LLP. This article first appeared in the latest edition of The Parchment, published by the Dublin Solicitors Bar Association (DSBA).