CURRENT CHALLENGES IN THE FAMILY LAW COURTS. I would first like to thank the Department of Justice & Equality and the Minister for

Transcription

1 CURRENT CHALLENGES IN THE FAMILY LAW COURTS I would first like to thank the Department of Justice & Equality and the Minister for extending an invitation to me to speak at this important seminar on the Family Law Courts with particular reference to the Government s intention to establish a new family court structure. I wish to address you in my capacity as chairperson of the Family Law Development Committee of the Board of the Courts Service and also to give some insight from a judicial perspective on the challenges that face us, which are my own views and not those of the judiciary as a whole. I do not wish to trespass on the preserve of Government and the Oireachtas as to what any new family court structure will be, but I hope my talk will be useful in setting out the challenges for the future. I would like to dwell for a few minutes on some of our work on the Family Law Development Committee and various initiatives undertaken by the Courts Service in family law. Underlying the importance which the Courts Service places on family law our committee is the only standing committee devoted to a particular area of law. Our terms of reference set out in the first schedule reflect many of the issues which confront our policymakers. the improvement of waiting times the promotion of alternative dispute resolution 1

2 Developing effective mechanisms for hearing the voice of the child, continuing to improve accommodation and facilities The dissemination of information to the public. Access to court. The Courts Service board set up a pilot project on family law reporting, directed by Dr. Carol Coulter which resulted in the publication of a number of issues of Family Law Matters and culminated in a report to the board by Dr. Coulter presented in October 2007, which made a number or recommendations. Arising from that report the board decided to set up a Family Law Reporting Project Committee (F.L.R.P.C) in October 2007 chaired by Mr Justice Kearns, to progress the implementation of the recommendations and to continue to oversee the family law reporting project for a short period of time. The project committee prepared a report in April 2009 which was presented to the board of the Courts Service and approved. Both publications are on the Courts Service website links: publications, general publications, scroll to family law. The Family Law Development Committee of the Board has been operating on that blueprint since. A number of initiatives have been undertaken by the Courts Service in consultation with the Presidents of the Courts. 2

3 The finalisation where possible of the county town courthouse building development programme, which includes specialised facilities for family law hearings. The rationalisation of District Court areas nationally to provide for exclusive family law days in each District Court area. Establishment of a case progression system in the Circuit Court under the direction of the County Registrars. The development of ancillary services in Dolphin House in Dublin for the District Court where a mediation service has been established, a domestic violence liaison service and also a contact point for the Legal Aid Board. The streamlining of the administration of public law child care proceedings and the reporting protocol for same. The development in conjunction with various mediation services of a pilot project in the Circuit Family Court in Dublin, which unfortunately had poor take up. The development of a High Court practice direction with emphasis on case management. The provision of extensive information on family law on The Courts Service website. These initiatives have taken place against the backdrop of necessary rationalisation of the service because of funding and staff limitations. Many challenges still face us, which will no doubt face any new structure when put in place. 3

4 ALTERNATIVE DISPUTE RESOLUTION I refer to this in its broadest possible sense including mediation, collaborative law and negotiations between legal representatives at an early stage to avoid proceedings or to compromise proceedings already issued. While the statistical evidence available to the Courts Service does not break down the number of cases allocated hearing dates which are settled on the date of the court hearing or in the days leading up to it, anecdotal evidence would suggest that this remains a high percentage of contested cases. The challenge for all involved in the process is to bring that resolution to an earlier stage in the legal proceedings, or before legal proceedings commence. Our family law courts are still too adversarial in nature. That is not to underestimate the importance of the availability of courts to adjudicate on disputes, which regularly centre on disputed facts, which have to be resolved by a judge. Alternative dispute resolution is not a panacea, but the certificate system which is set out in Section 5 of the Judicial Separation and Family Law Reform Act 1989, Section 6 of the Family Law (Divorce) Act 1996 and Section 20 of the Guardianship of Infants Act 1964 has not been successful in diverting cases into alternative dispute resolution modes. The importance of communication of information about A.D.R. is essential and also the requirement to have good standards of practitioners with good expertise operating it. 4

5 In common with the Law Reform Commission recommendations, in it s report (LRC CP ) the F.L.R.P.C recommended that there should be the introduction of compulsory information sessions about ADR before legal proceedings are commenced but ruled against recommending compulsory mediation itself as being contrary to the principles of mediation The Family Law Development Committee was invited by the Department of Justice and Equality to make some submissions on the mediation bill and recommended the bill should include a provision to make information meetings compulsory. There can be difficulties about A.D.R. Parties can approach the process unequally. One party may not have control of the financial assets or may be intimidated by threats or violence. There may be non disclosure of financial assets, or allegations of one party to the process having an overbearing personality which makes mediation difficult. It is important that ADR in the Court process is not seen as a completely independent pillar, and there is the facility for the courts to refer to A.D.R. or bring it back from A.D.R.. If orders are required to advance the proceedings. SOCIAL ENQUIRY REPORTS AND VOICE OF THE CHILD REPORTS Section 47 of the Family Law Act 1995 makes provision for the High Court and Circuit Court to procure a report on any question affecting the welfare of a party to the proceedings, including children. In accordance with Section 47 (4) fees and expenses incurred in the preparation of a report shall be paid by the parties to the proceedings in such portions as the court may determine. 5

6 A report prepared in accordance with the section can be very helpful in determining issues of custody access and welfare of children. As part of the process the children are normally interviewed by the expert preparing the report. Section 47 Reports are usually undertaken by child psychiatrists or psychologists. The reports can be expensive. The reports are usually wide ranging concentrating on the wider family and not just the children. In many cases the dispute is not about the psychological or the psychiatric health of the child but a protracted custody dispute between the parents. At present Section 47 of the Family Law Act 1995 does not apply to the District Court. Section 26 of the Guardianship of Infants Act as inserted by Section 11 of the Children Act 1997 extends the section to proceedings in the District Court; however this section has not been commenced. Where the District Court has concerns about the welfare of a child or wishes to have the views of a child heard indirectly, the only provision open to the court at present is Section 20 of the Child Care Act 1991, where a report can be ordered if it appears to the court that it may be appropriate for a care order or a supervision order to be made with respect to the child concerned in the proceedings. The court may then direct the HSE to carry out an investigation and to prepare a report. Historically the Probation Service provided social reports to the family law courts, but this service was discontinued. Over a number of years the Courts Service after detailed discussions with the Probation Service and other interested agencies set up a pilot project, where social inquiry reports primary relating to children were prepared by retired social workers and the Courts Service bore the cost, because of the limited financial resources of the parties involved. This was discontinued in 2011 because of the cost to the Court Service and also because it was considered to be outside the remit of the service, and was also a pilot project only. 6

7 In Northern Ireland, Scotland, England and Wales, the family law courts have the facilities of a dedicated service, where social reports and reports seeking out the voice of the child can be ordered by the court in respect of any matter concerning the welfare or best interests of the child, including hearing the voice of the child. In certain circumstances the Legal Aid Board, where a party to the proceedings is legally aided, may agree to bear the cost of the social report but that is entirely at the discretion of the Legal Aid Board. The Family Law Courts at present lack any ancillary services which can be called upon to assist. Family Law Courts will continue to find it a challenge to discharge the responsibilities placed on them to hear the voice of the child unless those ancillary services are put in place. It could be something as simple as a duty social worker attached to the court, who would be in a position to interview the family and children and report back quickly on issues of contention, or if necessary a more comprehensive and complex investigation in high conflict cases. It is essential that this is addressed. Ever since the Probation Service discontinued its service to the family law courts, those courts have been limited in the service that can be provided to those that access the family law courts and have insufficient resources to discharge the cost of these types of reports. The District Court in particular is hampered by the lack of legal powers and resources. Section 26 of the Guardianship of Infants Act 1964 should be commenced. There are also other ancillary services, which family courts need access to, 7

8 the facility to refer to skilled personnel to draw up parenting plans in consultation with couples, the facility to refer to anger management programmes in domestic violence situations The facility to monitor custody and access orders when they break down and to facilitate their restoration. The facility to refer to family therapy. The facility to have supervised access orders implemented. These facilities are more easily available to those who can discharge the cost, but pose a challenge when the financial resources of the parties are inadequate. ACCESS TO JUSTICE Law Centres under the aegis of the Legal Aid Board provide much needed and efficient services to litigants before the Family Law Courts. The Law Centres also provide a very important priority service in child abduction cases. It is unrealistic for us to expect a substantial resource allocation increase to these areas; however delays in the processing of legal aid applications and waiting times for appointments pose a substantial challenge to the Family Law Courts, which judges endeavour to manage as best they can. We are in a better position than policy proposals for family courts in England and Wales where it is intended, legal aid provision will be withdrawn completely 8

9 .An increasing challenge for Irish family courts is the increase in the number of personal litigants. This poses a challenge for both court administration staff and judges. Generally speaking the litigants can be broken down into two categories, those who find it difficult to obtain legal representation, and do not qualify for legal aid, and others who choose for their own reasons to represent themselves. There are a small core of personal litigants who pose a very difficult challenge for court administration and judges, who engage with the court process in a potentially abusive way, by making repeated applications, and not following court procedures. Our court administration staff is preparing some very useful guidelines to assist personal litigants which will add to the very extensive information on the courts service website on family law. The challenge for the judges is to handle this problem with respect for the rule of law, but also ensure that the time and resources of courts are used to good effect.. GEOGRAPHICAL SPREAD OF THE FAMILY LAW COURTS In the F.L.R.P.C. report, consideration was given to the regional courts proposal contained in the Law Reform Commission Report already referred to.. Because of our concentration on developing facilities in courthouses in county towns and focusing more Circuit and District Court sittings in those enhanced facilities, the 9

10 committee preferred to focus on sittings in county towns, and to seek extra judicial resources. There will always be tension between allocating facilities to geographically spread smaller centres and county or regional centres. The importance of local access to emergency remedies under the Domestic Violence Act 1996 and the Guardianship of Infants Act 1964 cannot be underestimated and our District Courts provide a very important service in that regard. There is no doubt that substantive legal proceedings are better conducted in larger centres. There is also the advantage as we have seen in Dolphin House in Dublin of having other services available within or close to those centres. It has long been the policy of the Courts Services to designate one centre in Dublin for all Family Courts and ancillary services. It is also an aspiration for larger urban centres throughout the country. There is a huge advantage in continuous sittings during legal terms for all divisions of the family courts District, Circuit and High Courts. In practice in Dublin we have designated Family Courts sitting on a continuous basis, two in the High Court, three in the Circuit Court and four in the District Court, two for public law and two for private law. 10

11 The rationalisation of District Court Areas has also provided an improvement outside of Dublin in the reservation of exclusive Family Law days. Likewise the ability of provincial Circuit Courts to allocate substantial blocks of weeks for family law is important and essential. The hearing of long cases always poses a challenge for courts sitting outside Dublin. The vesting of concurrent jurisdiction in the Circuit Court to hear divorce and judicial separation cases originally commenced by the 1989 Act has been an important reform, but it is fair to say the court because of heavy workloads and stretched resources in provincial circuits, has found it difficult to live up to the ideal envisaged by section 31 and 32 of the 1989 Act. Nevertheless its productivity as evidenced by annual statistics is good. Those statistics are set out in the second schedule. The continuity of judicial assignment is also important. The F.L.R.P.C report recommended that a judge should be assigned to family law lists for a period of one year, but considered that judges should be exposed to all types of work, and should not be assigned indefinitely to family law cases. GUARDIANs AD LITEM In Child care Act cases in the District Court and on appeal to the Circuit Court, as a matter of course guardians ad litem are appointed for children who are the subject of care order applications. The majority of cases where Guardian ad Litems are appointed legal representation is sought and provided for the guardian. While it is important for section 28 of the Guardianship of Infants Act to be commenced, it would not be advancement if guardians ad litem became a regular 11

12 feature in private family law proceedings. There are cases involving ongoing conflict, where there is non compliance with court orders and repeated applications to court where the use of a Guardian Ad Litem appointed directly for the children would be constructive. It would be important to avoid the overuse of guardians ad litem and to limit their representation to issues which affect the children and are of concern to the court. THE INQUISITORIAL MODEL In all civil law jurisdictions and some common law jurisdictions, judges assume a more participative role in the resolution of family law disputes. It is noted in the High Court family law practice direction, there is provision for a judge to chair case conferences, which has been rarely used. In Ontario in Canada a system is in place where judges chair case conferences with a view to progressing agreement on a range of issues and referring on matters which are not subject to agreement for substantive hearing by another judge. There are a variety of views on this matter, but it is worth consideration. Case progression in its present form in the Circuit Court is a system of case management to get cases ready for trial rather than to advance resolution. However it is noted that case progression in the Circuit Court can facilitate earlier resolution of family law disputes. COORDINATION OF SERVICES The development of services for family law litigants is enhanced by cooperation and exchange of views, with different public departments, agencies, statutory and non governmental bodies which provide services in this area. The setting up of an independent Courts Service has provided an important and successful stimulus in this 12

13 regard, where judges, administrators and other agencies can interact without compromising judicial independence. I very much look forward to the contribution of my judicial colleague from Australia Judge Ryan who is very welcome here to Ireland. In closing I very much welcome this renewed focus on the family court system. I have no doubt that many stakeholders and interested parties will make submissions, which will be constructive and helpful and hopefully contribute to the development of a structure, which will provide the highest level of service for parties who have to confront the difficult reality of marital and relationship breakdown and the consequences thereof, and that system will be adequately resourced. FIRST SCHEDULE. Terms of reference of Family Law Development Committee of the Courts Service. 1. Recommend appropriate reforms in administrative, judicial and quasijudicial structures in the management of family law cases to ensure that as far as possible, cases involving child related issues are prioritised, cases are listed according to priority, waiting times are mitigated and that the rules for same are clear for all users. 13

14 2. The promotion of alternative dispute resolution as a means of solving family law disputes. 3. Ensure the voice of the child is heard in family law proceedings on custody and access, by reports or other means, in an appropriate manner. 4. Encourage partnerships with key stakeholders and external agencies to deliver a better service for the citizen. 5. Assist the board and other committees of the Courts Service in outlining key elements of accommodation and facilities in family law courts, where opportunities to improve same arise. 6. The dissemination of information to the public on the family law courts including an improvement of the qualitative information available 7. Encourage practices which make use of the family courts more efficient, less costly, and relieve stress on the parties. 8. Promote education and seminars on family law. 9. Foster the publication of judgements of all benches suitably redacted to ensure confidentiality. 10. In consultation with the Committee for Judicial Studies, facilitate judges in specialised training on family law matters. 11. With board approval, make recommendations, where necessary on the reform of family law. SECOND SCHEDULE Annual Report Statistics: Family Law 1. Judicial separation, divorce, and nullity Trends: Applications received Judicial separation Divorce Nullity Year High Circuit High Circuit High Circuit 14

15 , , , , , , , , Trends: Orders granted Judicial separation Divorce Nullity Year High Court Circuit Court High Court Circuit Court High Court Circuit Court , , , , , , Trends: Judicial separation: applicants Wife Husband Year High Court Circuit Court High Court Circuit Court , , , Trends: Divorce: applicants Year Wife Husband High Court Circuit Court High Court Circuit Court , , , , , , , ,689 Trends: Nullity: applicants Year Wife Husband High Court Circuit Court High Court Circuit Court Circuit Court: Specific orders made Judicial separation Divorce Nullity Pension adjustment , Transfer of family home Sale of family home Residence in family home Other property order Extinguish succession rights ,657 2, Maintenance Circuit Court: Outcome of applications made Judicial separation Divorce Periodic payment to spouse Periodic payment to child Lump sum payment to spouse

16 Lump sum payment to child District Court: Outcome of applications made (by applicant) Married Unmarried Granted 1,274 1,165 2,676 2,366 Refused Withdrawn/struck out Guardianship High Court Received Orders made District Court: Unmarried applicants* Granted 2,219 2,059 Refused Withdrawn/struck out *Section 6(a) Guardianship of Infants Act, Custody & Access Circuit Court: Outcomes Judicial separation Divorce Nullity Orders made District Court: Outcomes Custody & access Custody only Access only Granted ,219 3,899 Refused Withdrawn/struck out ,245 1, Domestic Violence Circuit Court: Outcomes Orders made: District Court: Trends Barring order applications 2,789 2,763 2,726 2,855 3,096 Barring orders made 1,165 1,043 1,064 1,106 1,251 Protection order applications 4,192 3,403 2,926 3,134 3,354 Protection orders made* 3,849 3,085 2,672 2,867 2,960 Safety order applications 5,026 3,755 3,561 3,322 3,328 Safety orders made 2,255 1,513 1,457 1,339 1,502 Interim barring order applications Interim barring orders made* *Some interim barring orders were granted on foot of applications for protection orders. Likewise some protection orders were granted on foot of interim barring orders District Court: Applicants main categories Barring orders Interim barring Safety orders Protection orders orders Spouse 1,427 1, ,041 1,888 1,743 1,615 16

17 Common law partner/ cohabiting ,000 1,302 1,687 1,296 or formerly cohabiting couples Civil partner Parent (against son or daughter) Other cohabitants (not couples) Parent* (against other parent) Parent of a child v other parent of that child * 6. Childcare Types of cases Applications by the Health Service Executive (HSE) in relation to care of children, mainly applications to have children placed in the care of or under the supervision of the HSE temporarily or permanently. District Court Supervision order applications 1,346 Supervision orders made 1,074 Care order applications (long term or final order committing to care) 1,677 Care orders made 1,384 Interim care order applications* 5,773 Interim care orders made* 4,862 Emergency care order applications 519 Emergency care orders made 424 * includes extension of interim care orders 7. Appeals (family law) Circuit Court to High Court Received Orders made District Court to Circuit Court Received 1,045 1,064 Orders made Other High Court: Adoption Cases issued 12 5 Orders made 13 6 High Court: Hague Luxembourg Convention (child abduction) Cases issued Orders made Assess child Interim order Child returned (on consent) 3 9 Child returned (court order) 7 2 Child remain (on consent) Child remain (court order) 9 4 Circuit Court: Section 47 Civil Registration Act, 2004 * Received Orders granted *Section 47 Civil Registration Act, 2004 allows the court dispense with the necessity to give three months notice of intention to marry and/or allow people under the age of eighteen to marry 17

18 . 18