A major shakeup of the legal system has been drawn up by Justice Minister Alan Shatter and agreed by the Cabinet. As part of this system a new Family Court structure is proposed. The initiatives accepted by the Government will require the holding of a Constitutional Referendum, which means the physical structure of the courts will be changed. This is a welcome development as it has remained largely unchanged since 1924.
Our courts system does not have a dedicated family law division. The current family courts system is “fragmented” with the three courts — district, circuit, and high court — each dealing with separate family issues, ranging from maintenance applications and custody issues to child abductions. The management of the family courts system needs to be changed as the hearings are not frequent enough. There are long waiting times, both on the day waiting for the case to be heard and if it is not heard it may be months before it is scheduled again.
One of the legal hallmarks of Irish Family Law is that there is a great deal of judicial discretion. In addition, Family Law cases present particular and special challenges which mean that a Family Law case could, potentially, require a Court to make a wide of range of decisions regarding children, maintenance, family assets and finance, occupation of the family home, and so on. Family Law cases may be psychologically complex, requiring family assessment by social workers, psychiatrists or psychologists, particularly where there are children involved. Cases can also be financially complex, especially in what have come to be known as “ample resources” or “big money” divorce cases where the assets (financial and property) may involve millions of euro and where pension splitting may also be in question.
Under the current system, family law cases generally come before the District Court in the first instance. Family cases are usually left until the end of the court list, to give those concerned as much privacy as possible. However, as a result families can be left waiting in the courthouse as prisoners and other criminals are ushered in and out, which is not ideal as family law matters are sensitive.
The Justice Ministers proposals include humanizing the courts system and ensuring that the judges dealing with family law cases have the skills and training to do so. Currently a judge, once appointed, can deal with a criminal case, a road traffic accident case, a family law case, which are very different cases. Family law cases, particularly as children are involved, require a very high degree of understanding, empathy, sensitivity and delicacy. Minister Shatter hopes that the new system “should be more user friendly and should make things less costly” with specialist judges and specialist courts. It is hoped that the new regime will be a less intimidating and a more welcoming environment for families in personal difficulties.
Under a reformed structure, the Justice Minister envisages entirely separate family courts, where only the parties involved, the judge and the court clerk are present. Judges with a specialisation in family law cases could preside over all proceedings, ensuring a level of compassion and understanding. Many judges deal very well with family cases, but not all judges are trained in the area.
It’s important the judiciary have special skills, so when individuals go to family court, they know there’s going to be a degree of consistency of approach.
Back up services
It is hoped that the new system would also have the necessary back-up, including welfare services that would conduct assessments and mediation services that would provide alternatives to courts.
Mediation – children
Mediation is now becoming more popular. Mediation is an alternative to confrontation; it attempts to get the people themselves to focus not on the personal issues, but to reach a compromise. In mediation the people involved make the decision whereas in the court the judge makes the decision. Mediation has huge benefits for children as both parents want the best for their children and it removes the stress of court. One of the major problems with our court system, in comparison to Canada and Australia, is that we don’t have a mediation system within our courts system, it is separate.
The restricting of the Family Law Courts is not a new concept. Specifically designated Family Courts and trained judges were originally proposed in the 1996 Law Reform Commission Report on Family Courts. This report originally pointed out that: “Judges who deal with Family Law matters in Ireland are not by law required to have any special qualifications, training or experience in, or aptitude for, Family Law matters.” Since this report in 1996 there has been considerable and substantial growth of Family Law and there have also been large increases in the number of Family Law cases coming before the courts. This reform will, therefore, be very important and will hopefully modernise our court system to reflect the realities of society.
New System – Similarities to other Countries
The specifics of exactly what the Justice Minister is proposing are largely unknown. We do know that in March 2012 the Justice Minister visited the New South Wales Family Court in Australia where he discussed the workings of the Australian family court structure and its relevance to his commitment to establish an integrated Family Court in our jurisdiction. Following on from this visit he may decide to establish a dedicated Family Court structure similar to that which operates in Australia, where it is a separate entity with its own judges who are specially appointed for this work, as well as having distinctive procedures, personnel and appropriate support services to deal with Family Law matters. There is a comprehensive case management system and extensive support services such as counselling and mediation funded by the State.
First step towards Reform
Perhaps as a first step towards a less radical restructuring of the court system in relation to Family Law matters, Minister Shatter may, however, decide that it could be possible to make improvements to our existing system by creating a distinctive Family Law Division which would include District, Circuit and High Courts and would have significant improvements in resources in staff and ancillary services.