Peter Doyle

The Law Society of Ireland has long advocated for family court reform and as part of our continued work in this area, we are hosting a Family Law Conference today. We have been lucky enough to have eminent speakers from the UK who have a wealth of experience of a separate family law division court structure being set up and developed over a number of years. Our speakers include Sir Andrew McFarlane, Her Honour Judge Rachel Hudson, Mrs Justice Lucy Theis, and Lord Justice Peter Jackson. We are honoured to have such knowledgeable speakers at our conference. The purpose of this conference is to “build a world-class family court system”, as the title says.

The Law Society Family and Child Law Committee is an extremely dedicated group, of which I am only one part, who have spent much time looking at the Family Courts Bill from a positive point of view, while at the same time trying to improve and comment in the public interest.

Many of the aspirations in the Bill are laudable. However, they will remain aspirational unless they are supported by sufficient resources from both a financial and personnel perspective. For instance, the Bill allows for separate courts to deal with family law. Our current courthouses do not allow for this, not least of all because there are not sufficient facilities for clients and their legal advisers to have private conversations prior to attending hearings. While the Bill puts a statutory obligation on parties to a family law dispute, there is no system to assess whether they are complying with their obligations or enforcement mechanism if they are not.

Any democracy requires jurisprudence to allow the law in any given area to develop in tandem with society. Therefore, it is important that issues relating to children and families in cases where contentious and complicated divorce or separation issues are involved are adjudicated by the Circuit Court and the High Court. The District Court has a very important place in family law, dealing with domestic violence applications, non-marital and marital maintenance, access and custody issues, and childcare cases. It is a court of summary jurisdiction, and it is difficult to see how the District Court could adequately take on the job of adjudicating on contentious judicial separation or divorce cases, bearing in mind the current lack of resources, time and the level of work that the District Court already faces on a daily basis.

It is extremely important that the voice of the child should be heard and, as a nation, we have already voted to enshrine this in our Constitution. Therefore, it is imperative that this is front and centre in the Bill. The Law Society believes that Guardians ad Litem should be appointed in all cases where children are subject to care proceedings. Also, it is important that those who deal with children and families should undergo specific training so there is a consistency and a knowledge on their part when dealing with sensitive issues.

Family law is a highly emotive situation for people to be involved in. There is a real need to provide all parties in family law cases with supports to help them through this difficult situation. By this I mean a more holistic approach in family law cases where the parties would have access to counselling services, sufficient private spaces for parties to consult with their legal representatives prior to going into court and for domestic violence victims not to have to wait in the proximity of their ex-partner. Having key ancillary services and agencies, such as mediation services, available to parties while attending the courthouse could easily serve to make for a faster and less adversarial system when dealing with families and children, which nearly always leads to a better outcome.

From a family law practitioner’s point of view having a separate family law division where family law gets priority is a welcome development. The guiding principle of active case management, which already works so well in the High Court, would be an important development in order that cases are focused on in a timely manner, which from my own experience and I am sure many of my colleagues, always helps to make for a better outcome for all. Again, this will be down to the availability of sufficient resources as I mentioned earlier. An encouragement to try to settle cases prior to the steps of the court would also take some of the stress away from the litigants.

Our legal aid system has long needed an overhaul and a review is underway at the moment. This needs to be fast tracked to allow those of lesser means to have the benefit of legal advice and access to justice. The thresholds for means testing need to be reviewed, particularly in light of current inflation. The fees paid to practitioners for legal aid work is simply uneconomic and is leading to solicitors not taking on this type of work. The consequence of this chronic underfunding is now becoming an access to justice issue.

The job of our committee and the Law Society is to use our experiences to help develop a better family law system for children and families in Ireland. The separate family law division has been long-awaited and is a welcome development, but it does require further scrutiny and amendment so that we can make for a world-class family court system in Ireland and hopefully some day we will be asked to speak at a conference in another country to give our perspective on thow to build a world class system in that jurisdiction.
I, and the Law Society, very much welcome the Bill and applaud the Minister’s initiative. We look forward to working with Minister McEntee on this new development.

Peter Doyle is chair of the Family & Child Law Committee of the Law Society of Ireland