THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 52–1996)

REPORT

ON

FAMILY COURTS

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St. Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1996

First Published March 1996

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court, President; John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Professor of Law and Jurisprudence, University of Dublin, Trinity College;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in Psychology, University of Dublin, Trinity College;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General fifty one Reports containing proposals for the reform of the law. It has also published eleven Working Papers, nine Consultation Papers and Annual Reports. Details will be found on pp. 189–194.

The post of Research Counsellor to the Commission is vacant at present.

Ms. Nuala Egan, B.C.L., LL.M. (Lond.), Barrister-at-Law, Ms. Sarah Farrell, LL.B., LL.M. (Lond.), and Ms. Lia O'Hegarty, B.C.L., LL.M. (Michigan), LL.M. (Harvard) are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 671 5699.

Fax No: 671 5316.

INTRODUCTION

The Family Courts' Project: Background And Context

The Law Reform Commission has published thirteen Reports which cover or touch upon different areas of substantive family law. This Report is concerned with the processes and procedures whereby family law disputes are resolved and remedies are obtained. The Report responds to the commitment made in the Commission's first programme to “consider the question of the best type of judicial or court structure or structures appropriate to deal with the different matters which fall under the general heading of family law”.¹

We explained in the Consultation Paper that “the concept of a 'Family Court' embraces a wide range of ideas about how and in what context proceedings which concern family matters should be conducted”.² We therefore addressed the organisation of the family law business of the courts (including the issue of a possible unified family law jurisdiction), court accommodation, pre-trial and trial procedures and court atmosphere, the selection and training of personnel, including judges and legal practitioners, support services and the linkage between judicial and other mechanisms for resolving family disputes, as well as the question of the desirability and feasibility of a specialised family court. Arising out of the process of consultation, we have explored in preparation for this final Report a number of further matters including systems of case management, the appeals process, some issues surrounding confidentiality in the mediation process and some issues surrounding the appointment and secondment of judges. It will be seen that the Commission has taken a broad view of its brief, and has attempted to review all the more important aspects of our family justice system.

This Report is complete in itself. However, many of the issues with which it deals were explored in depth in the Consultation Paper, and repetition of that detailed treatment was felt to be unnecessary. This is particularly so in relation to the issues surrounding mediation and other forms of alternative dispute resolution.

A System In Crisis

In the Consultation Paper, and again in this Report, we draw attention to serious deficiencies in the existing family justice system. The last twenty years have seen a growing recognition by society of the wide variety of problems associated with the breakdown of family relationships. Substantive family law has undergone a transformation during this period, with the introduction of a wide range of remedies and rights designed to protect vulnerable or dependent family members in the wake of breakdown, and to secure the fair distribution of family assets. Unfortunately the means for the delivery of these new rights and remedies have not received the same level of attention. The structures which this society offers for the mediation and resolution of family conflict are inadequate in the extreme.

The courts are buckling under the pressure of business. Long family law lists, delays, brief hearings, inadequate facilities and over-hasty settlements are too often the order of the day. At the same time too many cases are coming before the courts which are unripe for hearing, or in which earlier non-legal intervention might have led to agreement and the avoidance of courtroom conflict. Judges dealing with family disputes do not always have the necessary experience or aptitude. There is no proper system of case management. Cases are heard behind closed doors, protecting the privacy of family members but offering little opportunity for external appreciation, criticism, or even realisation, of what is happening within the system. The courts lack adequate support services, in particular the independent diagnostic services so important in resolving child-related issues. The burden placed on those who operate the system, especially judges and court officials, has become intolerable. Legal aid and advice services, despite substantial recent investment, continue to labour under an expanding case-load, and too many litigants go to court unrepresented. An unhealthy two-tier system of family justice is developing in which poorer often unrepresented litigants seek summary justice in the District Court while their wealthier neighbours apply for the more sophisticated Circuit Court remedies. Finally, there is to the whole family justice system a negative ethos which does little to encourage the responsible resolution and management of family conflict by family members themselves.

The situation described here is chronic. It has arisen as a result of a failure to appreciate and address the consequences for the family justice system of the substantial increase in family breakdown over the last quarter of a century. The family justice system is now in crisis.

Reforms And Resources

The solution to this crisis requires a combination of structural and legal reforms together with a major injection of resources. Proposals for structural and legal reform must be sensitive to resource issues. We have been conscious of this throughout our deliberations, and we have tried to develop a set of realisable objectives. The strategy we recommend involves a combination of measures designed to promote agreement and avoid litigation where possible, and to improve the organisation and quality of the family courts service where its use is unavoidable. In approaching reform of the courts system we have rejected as infeasible and unnecessary the most radical and costly solution -the creation of an entirely new and independent system of family courts. We have favoured instead the development of a discrete family courts system with a unified jurisdiction, as a branch of an existing court, making use as far as possible of existing resources, but at the same time offering a more specialist service and one which would accord to family law cases the priority and attention they deserve.

While our proposals recognise that resources are finite, we must point out that there is a price attached to the provision of an efficient and sensitive family justice system. The present structures have been allowed to atrophy for so long that the initial cost is bound to be high. This will be the case regardless of the level within the courts' hierarchy at which the new Family Court is to operate. The same applies to the development of the courts' support services and the alternatives to litigation, in particular mediation services, which in this country are at a very early stage of development. Moreover, if we are to avoid a repetition of the neglect which has occurred, it is essential to put in place permanent mechanisms for monitoring and reviewing the operation of the family justice system.

The Consultation Process

The Commission's Consultation Paper on Family Courts was published in March 1994. Written submissions were received from the persons, groups and bodies listed in Appendix A. Many of these were lengthy, and all were carefully considered. We express our thanks to their authors. A Consultative Seminar was held at the Commission's offices on 10 December 1994. The persons who attended are listed in Appendix B. This exercise, and the many comments, expressions of concern, criticisms and suggestions concerning the family justice system which it elicited, were of enormous value, and we would like to express our appreciation to those who attended.

The Expert Group on Family Courts, which had been established to assist and advise the Commission in preparing the Consultation Paper, again met to offer the Commission observations and reflections on that Paper. Members of the Group also furnished detailed written responses to a draft chapter on Case Management, a subject which had not been addressed in the Consultation Paper. We wish once more to record our great appreciation to the members of the Expert Group for their commitment to the project and for their wise observations. They are, however, to be absolved of any blame for the conclusions

reached, and the recommendations made, in this Report, which are the responsibility solely of the Commission. The members of the Expert Group were:

The Hon. Mr. Justice Francis D. Murphy (High Court);

His Honour Judge Matthew Deery (Circuit Court);

Her Honour Judge Catherine McGuinness (Circuit Court);

Judge Thelma King (District Court);

Cormac Corrigan Esq., B.L.;

Frank Murphy Esq., Solicitor;

Ms. Muriel Walls, Solicitor.

Acknowledgements

We would like to record our thanks to the following persons, who provided advice, information or assistance to the Commission and its research staff during the course of the Family Courts project:

Judge Svend Danielsen, Judge of the Danish High Court;

Judge William Harnett (District Court);

Mr. Tony Fahey, E.S.R.I.;

Mr. S. O'Braonáin, former Chief Examiner, Department of Justice;

Ms. Marie Ryan, Courts Division, Department of Justice;

Mr. John Delahunty, Chief Registrar, High Court, Dublin;

All of the County Registrars;

Mr. Anthony Jeeves, Family Policy Division, Lord Chancellor's Department, London;

Mr. David P. Watts, Judicial Appointments Section, Lord Chancellor's Department, London;

Mr. Gordon Murray, Scottish Courts Administration;

Mr. Richard Morgan, Senior Government Counsel, Attorney General's Department, Canberra;

Mr. Clive Buckley, The Court Service, Principal Registry of the Family Division, London;

Mr. Richard Sax, Family Law Committee, The Law Society, London.

CHAPTER 1: THE IRISH FAMILY LAW SYSTEM

1.01

Chapter 1 of the Consultation Paper on Family Courts examined the structure of the Irish family law system, and provided a detailed description of how family law business is divided between the District, the Circuit and the High Courts. It is not proposed in this Report to repeat that analysis but, rather, to summarise the principal features of the system in order to set the final recommendations of the Commission in context.

Principal Features Of The Present System

(a) Fragmented jurisdiction¹

1.02

Family proceedings are divided between three levels of court having original jurisdiction – the District, Circuit and High Court. The most locally accessible of those, the District Court, deals with a large number of private law cases involving disputes over maintenance, child custody/access, and barring/protection orders, as well as some minor property issues. It also serves as the principal court dealing with matters of child protection under public law. Its jurisdiction does not extend to the making of major orders affecting status such as judicial separation, annulment of marriage, or declarations of parentage, though it may make guardianship orders. Appeals from it lie to the Circuit Court.

1.03

The Circuit Court has over recent years been assuming a more central role in family matters and is known, when exercising its family law jurisdiction, as the Circuit Family Court. It has jurisdiction to grant decrees of judicial separation, which may be accompanied by a wide range of ancillary orders

covering most of the issues which can arise in the wake of a broken marriage. Many of these orders (e.g., custody/access, barring/protection, and certain orders relating to property) are also available independently. It follows that in many of these matters the Circuit Court has a parallel jurisdiction with the District Court, though in most cases the Circuit Court's jurisdiction is wider in terms of the levels of order which it may make. It may also grant declarations of parentage, wardship orders and injunctions, and legislation is currently being enacted to give it a nullity jurisdiction.² It hears appeals from the District Court and appeal from it lies to the High Court.

1.04

Article 34.3.4 of the Constitution of Ireland vests the High Court with full original jurisdiction and power to determine all matters and questions whether of law or fact. Other courts (District and Circuit) may constitutionally be given parallel jurisdiction with the High Court, but the authorities are divided on whether legislation may exclude from the High Court's jurisdiction family matters which are dealt with by the lower courts.³ In practice, since the coming into operation of the Courts Act, 1981, the purpose of which was in part to reduce the High Court's burden of family law work, the High Court has entertained such cases only where it is satisfied that in a particular case there is a serious danger that justice will not be done if the Court declines to exercise jurisdiction. The High Court has retained an exclusive jurisdiction to grant nullity decrees and its full jurisdiction in respect of certain other family law matters such as wardship and some property matters. It has exclusive jurisdiction in relation to a number of adoption matters and in respect of international child abduction cases. The High Court also hears appeals from the Circuit Court. Appeal from it lies to the Supreme Court.

(b) Full-time professional judges

1.05

The qualifications for judicial office differ from court to court, but the basic condition is a period of practice as a barrister or solicitor.⁴ There are no lay or part-time judges in the Irish judicial system. Article 35.3 of the Constitution requires that no judge may hold any other office or position of emolument. If lay or part-time judges were to be employed, this principle would place a severe limitation on those who would be eligible for appointment. Further, despite the fact that it has been the practice to appoint District Judges originally for a fixed term, usually of one year, doubts have been expressed as to whether the appointment of fixed-term judges would be consistent with the requirements of judicial independence and objectivity.⁵

(c) A non-specialist judiciary⁶

1.06

Judges who deal with family matters in Ireland are not required by law

to have any special qualifications, training or experience in, or aptitude for, family law matters; neither are they appointed specifically as family judges. Internal arrangements operate in the different courts whereby a judge may be assigned for a specific period to deal with family law cases. In the High Court, for example, the period would be no more than a matter of weeks whereas in the District Court in the Dublin area the period may be much longer. There is also a specialist Children Court sitting in Dublin to which a District Judge is generally assigned for several years.

(d) Predominance of “judicial” over “administrative” decision-making

1.07

Judicial rather than administrative tribunals are the primary decision-makers in the family law area. This is underpinned by the provisions of Article 34.1 and 37.1 of the Constitution which provide that justice must be administered by judges appointed under the Constitution, except where, in a civil matter, there is involved only the exercise of limited powers and functions of a judicial nature.

1.08

Apart from the area of social welfare, where administrative decision-making is the norm, the only major area of family law in which use is made of an administrative decision-making model is that of adoption. The power to make adoption orders is vested⁷ in an Adoption Board comprising a chairperson and vice-chairperson, who must be legally qualified, and six ordinary members. Doubts have arisen as to whether the Board, in granting an adoption order, might as a non-judicial body be acting unconstitutionally by exercising an unlimited power of a judicial nature. These doubts have never finally been resolved, but the constitutionality of adoption orders made by the Board has been secured by an amendment to the Constitution (Art. 37.2) which makes such order immune to any challenge based on the fact that they are not made by judges duly appointed under the Constitution.

(e) Adversarial procedures⁸

1.09

Judicial proceedings concerning family law matters are conducted primarily along adversarial lines, the evidence before the court being provided largely by the parties themselves. However, the circumstances in which the judge may assume an inquisitorial role have been expanding, particularly in those cases concerning children where the main concern is to arrive at an outcome which will be in the best interests of the child. Thus in private custody or access proceedings⁹ and in public care or protection proceedings¹⁰ the court has power of its own motion to procure reports concerning the welfare of the child. A court is also now allowed to adjourn private custody/access proceedings where it appears that a care order may be needed in respect of a child, and to require

a Health Board to investigate the child's circumstances.¹¹

(f) Reduced formality¹²

1.10

The general principle now operating with respect to family law proceedings is that they should be “as informal as is practicable and consistent with the administration of justice.”¹³ Some of the physical aspects of formality, such as the wearing of wigs and gowns, have been removed. However, it would be wrong to confuse informality with procedural laxity. Adherence to the principles of natural and constitutional justice, as well as to the rules of evidence, remain important and this necessarily results in a certain degree of formality.

(g) In camera hearings¹⁴

1.11

The Constitution requires that, “Justice ..., save in such special and limited cases as may be prescribed by law, shall be administered in public.”¹⁵ Despite this general principle, the position with regard to family law cases is that they are almost invariably heard “otherwise than in public.”¹⁶ The public and press are excluded, and it is difficult even for bona fide law students or researchers to gain admission. Restrictions of this broad nature are usually justified as being necessary to protect the privacy of family members and to prevent distress and possible harm, especially to children.¹⁷ The right to privacy, and the right to marital privacy, though not explicit in the Constitution, have been recognised as unenumerated constitutional rights.¹⁸

(h) Allied services and mediation

1.12

The Probation and Welfare Service of the Department of Justice provides the courts with an investigative and reporting service mainly in the context of private child custody/access disputes and cases where barring orders are sought. However, the service is not comprehensive and is under-resourced. It is not available to the Circuit Court outside Dublin, and where it is available there are often considerable waiting periods for reports.

1.13

Out-of court mediation facilities are available in some parts of the country. The government established the Family Mediation Service in Dublin as a pilot scheme in 1986, and has recently announced plans to increase spending on mediation services in and outside Dublin. The Family Mediation Service engages in comprehensive mediation (finance, property and children) for couples

who have decided to separate or who have already separated.¹⁹

(i) A two-tier structure

1.14

In a sociological study on Marital Breakdown and Family Law in Ireland by Tony Fahey and Maureen Lyons, attention is drawn to the two-tier structure which has developed within the existing courts system:

1.15

An instance of this dualism is the way in which the barring order is typically used to achieve a separation at District Court level, often without the benefit of legal representation, while in the Circuit Court the central remedy is the judicial separation. Aim Group, in its 1994 Statistical Report, has suggested that:

A number of observations made to the Commission have stressed the undesirability of a family law system operating on two levels, one for the rich and the other for the poor.

(j) Legal representation and legal advice

1.16

The Legal Aid Board has administered the non-statutory Scheme of Civil

Legal Aid since its establishment in 1979, providing legal representation to “persons of modest means at little cost”²² through twenty-six full-time Law Centres countrywide. There are also eighteen part-time Centres which are serviced by staff from the full-time Centres for one or two days a month. Due to resource increases, waiting times for appointment with legal aid solicitors have generally been shortened in most of the Law Centres, according to the Board's Annual Report 1994,²³ and it is envisaged that additional solicitors will be assigned to Centres with long waiting lists.

The Legal Aid Board received a grant of £6.2m for 1995 compared to £3.2m in 1993 and, overall, the resources allocated by the Government to the Board have increased by 131% over the last three years.

1.17

The Annual Report records that almost 10,000 persons received legal advice from the Legal Aid Board in 1994, of whom 3,282 received legal aid for representation in court.²⁴ The remaining 6,712 people received legal advice only, almost double the figure for 1992. Overall, the Report highlights a general increase in the numbers of persons who have received legal advice and/or aid over the last number of years.²⁵ According to the Board:

1.18

As has been observed in previous years, the overwhelming majority of cases dealt with by the Law Centres concerned family law matters: approximately 98% of court cases and 90% of legal advice cases.²⁷ Of these, judicial separation proceedings “constitute a major element in the legal aid services provided by the Board”,²⁸ numbering 898 out of the total of 2,568 proceedings initiated by Law Centres in 1994.²⁹

1.19

Taking account of the pilot private practitioner project, the Legal Aid Board's services focus on the lower courts, with the majority of Legal Aid certificates (i.e. legal advice and representation) being granted to District Court litigants: in 1994, District Court cases accounted for 58% of certificates granted by the Board, Circuit Court cases accounted for 37% and High and Supreme

Court cases for 5%.³⁰

1.20

Despite the resource increases however, the Lyons and Fahey study, which found that the greatest proportion of family law business is concentrated at District Court level, has also revealed that 55% of applicants and 56% of respondents in the District Court do not have legal representation on the day on which their case is heard in court, and they comment:

1.21

Substantial developments in the legal aid service occurred in 1995. The Civil Legal Aid Act, 1995³² provides for the establishment of a new Legal Aid Board,³³ sets out criteria for the granting of both legal aid and advice,³⁴ lays down financial qualification requirements for eligibility³⁵ and requires persons to contribute to the cost of legal aid and advice in certain circumstances.³⁶ There are also sections dealing with the selection of solicitors and barristers³⁷ and the relationship between the lawyer and the person receiving legal aid or advice.³⁸ Given that the primary purpose of the Act is to place the existing civil legal aid scheme on a statutory footing, it is unlikely that its provisions will make much practical difference to the legal aid/advice situation in the family law area.

(k) Private ordering

1.22

The extent to which privately ordered, non-litigated settlements are arranged in Ireland is difficult to ascertain. There is a dearth of instructive statistical data, but anecdotal evidence would appear to suggest that out-of-court settlements (whether mediated, solicitor-negotiated or otherwise negotiated) are quite common.

1.23

In respect of solicitor-negotiated settlements, the Lyons and Fahey study³⁹ suggests that:

Furthermore, it would appear from the comments of practitioners and registrars that, generally, judges give litigants ample opportunity to settle and readily grant adjournments for this purpose.

1.24

However, the need for the provision of information, counselling and mediation services in order to facilitate out-of-court settlements was highlighted in many submissions to the Commission.⁴⁰ The need for a nationwide Family Mediation Service was also stressed.⁴¹

1.25

In respect of mediated agreements, a 1992 study of the Family Mediation Service (FMS) by Máire Nic Ghiolla Phádraig found that 501 couples had completed the mediation process by July 1989, and 55% of these had reached an agreement.⁴² Further, in three-quarters of these cases, this was a “full and final agreement on all issues.”⁴³ The study also found that 14% of couples reached interim agreements, and 9% reached partial agreements. Ms. Nic Ghiolla Phádraig also examined the issue of “whether or not making an agreement is more likely in certain circumstances” and found that “neither education nor social class made any difference.. [although].. there was a slight tendency for younger clients to make an agreement... [and t]hose who had been to court were less likely to make an agreement than those who had not.”⁴⁴

1.26

The Family Mediation Service itself has not conducted any research since the Nic Ghiolla Phádraig study due to lack of resources and personnel. However, it was estimated almost two-thirds of FMS clients reach a full (i.e. comprehensive) and final agreement.⁴⁵

CHAPTER 2: CRITICISMS OF THE SYSTEM

Criticisms Of The System

2.01

The criticisms of the existing system made in Chapter 7 of the Consultation Paper¹ have been widely endorsed in submissions and comments made by judges, members of the legal profession and others. No dissent was voiced from the Commission's general expression of concern in paragraph 7.01:

We summarise here the main criticisms expressed in the Consultation Paper, further developing some of them.

(a) Pressure of business

2.02

The increase in family law litigation over the last twenty years has placed the family justice system under considerable strain. A series of reforming Acts, beginning in 1976 with the Family Law (Maintenance of Spouses and Children)

Act,² introduced a range of new or improved remedies in respect of maintenance, domestic violence and family property. The introduction of the scheme of legal aid in civil cases in 1980 made these new, and other existing,³ remedies more widely accessible. The new system of judicial separation brought in by the Judicial Separation and Family Law Reform Act 1989, together with its attendant ancillary remedies, has generated a substantial volume of new work for the Circuit Court. Further statistical information, acquired since the publication of the Consultation Paper, provides evidence of the still escalating volume of family law business especially in the District and Circuit Courts.

Between 1990 and 1994, the total number of family law applications made to the District Court rose from 8,028 to 14,274, an increase of 77.7%.⁴ The number of applications to the Circuit Court for decrees of judicial separation rose from 636 in the fourteen months ending 31.12.1990 to 2,806 in the legal year ending 31.7.1994, an increase of 341%.⁵ Between 1980 and 1993, the number of applications for civil decrees and annulments to the High Court rose from 16 to 70, an increase of 337.5%.⁶

The District Court

2.03

There has been a steady and dramatic rise in the number of family law applications made to the District Court. In total, the District Court dealt with 14,274 family law applications in the legal year ending 31 July 1994.⁷ This compares with 6,062 applications in the legal year ending 31 July 1988,⁸ an increase of 135.5% in six years. No additional judicial positions were created in the District Court in that period.

The District Court dealt with 2,943 applications for maintenance in the legal year 1993–94.⁹ In the same period, 4,457 applications for barring orders and 3,091 applications for protection orders were made to the Court.¹⁰ In addition, 3,665 applications for guardianship were filed.¹¹ The Court also deals with miscellaneous applications brought under the Family Home Protection Act, 1976 and the Status of Children Act, 1987 as well as applications for enforcement of court orders.

The Circuit Court

2.04

In the Circuit Court, the number of applications under the Judicial Separation and Family Law Reform Act, 1989 has risen since 1990–91 (the first full year of operation of the Act), while the percentage of applications in which orders were made has remained virtually constant:

Non-1989 Act business in the Circuit Court is now relatively insignificant.

2.05

Despite the increase in judicial separation applications illustrated by the above statistics, no additional judicial appointments have been made in the Circuit Court since the enactment of the 1989 Act.¹⁸

The High Court

2.06

Applications to the High Court for judicial separation numbered 41 in the period 1.8.1993 to 31.7.1994, and 21 were successful.¹⁹ In the five month period from 1.8.1994 to 31.12.1994, 23 such applications were made to the High Court and 8 were granted.²⁰

Effects of escalation in family law business

2.07

Some of the effects of this escalation in family law business were noted in the Consultation Paper:²¹

2.08

The problems of delay in respect of proceedings for judicial separation have not abated since the publication of the Consultation Paper. The current position is summarised in the following Table which also highlights the variability of patterns of delay in different parts of the country. This Table was provided to Dáil Eireann by the Minister for Justice on Tuesday, 14 February 1995.²² It will be noted that the total number of cases awaiting hearing at that time was 1,476.²³ Almost 40% of those were awaiting hearing in the Dublin Circuit Family Court.²⁴

Table 1

CIRCUIT COURT

(b) Cases unripe for adjudication

2.09

In the Consultation Paper we stated:

(c) Fragmented jurisdiction²⁶

2.10

The problems arising from the fragmentation of jurisdiction between three levels of court include those of difficult tactical choices for legal advisers, and some confusion for their clients particularly where it becomes necessary to involve more than one court. The growing perception, referred to in Chapter 1, that there now exist two parallel systems of justice, one for the poor operating at District Court level and the other for the not-so-poor at Circuit Court level, is a very serious cause for concern.

(d) Physical conditions of some courts

2.11

We drew attention in the Consultation Paper²⁷ to the poor physical conditions of some Circuit and District Court accommodation, especially outside Dublin, and to the inadequacy of ancillary facilities such as consultation/ waiting rooms. This contrasted with model new facilities in parts of Dublin.

(e) The judiciary²⁸

2.12

The Consultation Paper drew attention to the absence of any requirement of special qualifications or experience in judges assigned to hear family law cases, and we referred to doubts which had been expressed about the aptitude of some judges to cope expertly and sensitively with such cases. Specific criticisms included reluctance on the part of some judges to make timely and firm decisions in cases where adjudication is necessary and appropriate. Among comments made to the Commission since the publication of the Consultation Paper have been some to the effect that the Commission somewhat understated the problems attaching to the judiciary, including in particular the problem of achieving a reasonable consistency in decision-making between courts in different

parts of the country. At the same time we drew attention, in the Consultation Paper, to the very great strain imposed on judges by their often overwhelming case-loads and by the appalling physical conditions in which they are sometimes obliged to work.

(f) In camera hearings

2.13

In the Consultation Paper, concerns were expressed about some of the consequences of holding family law proceedings behind closed doors. “[I]t is increasingly recognised that the absence of any opportunities for external scrutiny of family proceedings, even if it does not in fact affect the quality and consistency of judicial behaviour, creates an unhealthy atmosphere in which anecdote, rumour and myth inform the public's understanding of what goes on in the family court.”²⁹ Comments and submissions on this matter echoed these concerns, but were allied to a strong desire to continue to protect as far as possible the privacy of family members.

(g) Lengthy trials in the District Court

2.14

Reservations were expressed³⁰ as to whether the District Court was an appropriate forum for the resolution of any complex or extended family dispute, such as a custody case lasting several days.

(h) The system's negative ethos

2.15

In the Consultation Paper we said:

(i) Allied services

2.16

The Consultation Paper drew attention to the importance of the reporting service provided, especially in child custody and access disputes, by the

Probation and Welfare Service of the Department of Justice.³² The under-resourcing of this service, with the consequent absence of any service to many courts and delayed service to others, continues to be a matter of serious concern. Attention was also drawn to the fact that mediation services are at an early stage of development, that they are thin on the ground where they do exist, and are absent altogether from many parts of the country.³³

(j) Free legal aid and advice

2.17

It was pointed out in the Consultation Paper³⁴ that a review of the scheme of civil legal aid and advice, as it applies to family cases, was outside the Commission's brief. This remains the case, although many submissions made to the Commission emphasised that the development of the legal aid and advice service should be seen as an integral feature in any strategic reform of the family justice system. Indeed, in the introduction to the Consultation Paper, the Commission itself emphasised the importance, in the context of an effective and sensitive family courts system, of “an adequate system of legal aid and advice to help ensure fairness in negotiated and agreed arrangements and to guarantee access to the courts where necessary.”³⁵

Conclusions

2.18

In summary, the consultations carried out by the Commission following the publication of the Consultation Paper have confirmed the urgent need for reform which was expressed as follows in that Paper:

With or without the addition of further remedies the problems outlined above need to be addressed without delay. The introduction of divorce legislation will place further strains on the system. However, in any event, the problem remains of devising just, sensitive and efficient structures for resolving the issues that arise in the context of an increasing rate of breakdown in marital and other relationships.

CHAPTER 3: GENERAL PRINCIPLES AND OBJECTIVES OF REFORM

Special Features Of Family Law Cases

3.01

The Consultation Paper concluded that special features attach to family law cases which, when viewed in combination, suggest the need to apply to such cases procedures and safeguards different from those which are appropriate, for example, to commercial disputes. The special features include the following:

Ideals And Objectives Of A Good Family Courts System

3.02

Paragraph 7.14 of the Consultation Paper set out some of the hallmarks of a good family courts system. As these constitute the objectives of and the principles underlying our reform proposals, they are worth re-emphasising, and we set them out here in a slightly different format, with some additions and further explanation.

A. Accessibility and speed

3.03

A family justice system should provide speedy and effective access to legal remedies and services. Speed is particularly important where protective remedies are sought in emergency situations. The concept of accessibility implies:

B. Avoidance of conflict and hostility

3.04

The system should as far as possible avoid the use of procedures which may have a further damaging effect on family relationships, or which may cause harm or unnecessary distress to family members and especially children. Its procedures should be geared towards the avoidance of court proceedings except where inevitable or necessary in the interests of justice.

3.05

Family breakdown is usually accompanied by conflict, itself the product of deeply felt emotions. Feelings of anger, resentment, betrayal or injustice may be present, as well as guilt or failure. While it is important for the legal system to recognise and remedy injustice where it has occurred, it should as far as possible avoid the use of rules and procedures which prolong or deepen conflict and hostility. Substantive law, as well as procedural law, is important here. Procedures designed to minimise conflict will be undermined by substantive rules which invite recrimination.

3.06

However, conflict cannot always be avoided and where this is so, the task of the legal system is to administer justice. This was emphasised in the introduction to the Consultation Paper:

C. Supporting family ties

3.07

The system should respect and, as far as possible, support and strengthen existing family ties, and should avoid the use of rules and procedures which unreasonably hinder or deter efforts at reconciliation.

D. Promoting agreement and co-operation

3.08

The system should promote the resolution by agreement of the problems consequent on the breakdown of a family relationship. It should be organised in such a way as to encourage members of a disharmonious family themselves to control the issues arising from breakdown, and should promote co-operation between them in managing any of the continuing problems, especially those connected with child rearing.

3.09

These objectives were strongly endorsed during the consultation process. It was recognised, nevertheless, that the pursuit of agreement should not become a shibboleth, blinding us to considerations of justice and equality between the

parties, to the requirements of the public interest, and the interests of third parties, especially children.

E. Respecting dignity and fundamental rights and protecting children

3.10

The system should operate with respect for the dignity and fundamental rights of all affected family members. It should give prominence at all stages to the interests and welfare of dependent children where they are affected.

3.11

The concepts of dignity and fundamental rights in this context include, inter alia, the right to protection of bodily integrity,³ the right to privacy enjoyed by individuals and the family as a unit,⁴ and the right of a married couple to autonomy in their joint decisions.⁵ They include also the rights of the child,⁶ especially the rights pertaining to the child's welfare and the child's right, in accordance with his or her age and maturity, to be consulted on matters affecting his or her future.⁷

F. Addressing inequality

3.12

The system should be capable of addressing any problems of injustice which may arise following the breakdown of a family relationship, especially those deriving from inequalities between the parties.

G. Linkage with other family support services

3.13

There should be appropriate linkages between the system of Family Courts and a range of other family services that include information, family support and welfare, mediation, health and child protection services.

H. Cost effectiveness

3.14

The system should make the most effective use of the finite resources of the State, and should keep to a minimum the costs involved for the parties.

3.15

One member of the Commission wishes to add the following principle, viz:

The system should be organised in such a way as to ensure that spouses who have committed themselves to a marriage should have their interests legislatively protected

in accordance with the constitutional guarantees relating to family and marriage.⁸

It is argued that this principle arises from the constitutional guarantee to protect the family under Article 41. Marriage which involves mutual commitment of fidelity for life has to be protected not merely by substantive legal principles but also by the judicial system. A judicial system which fails to provide adequate protection for those who have committed themselves to a marriage could violate the constitutional protection of marriage. The other Commissioners regard this matter as relating to substantive rather than procedural law, and they are of the opinion that the need to respect the constitutional rights of spouses is properly reflected in Paragraph E above.

CHAPTER 4: RESTRUCTURING THE FAMILY COURTS

The Model Provisionally Recommended By The Commission

4.01

The provisional recommendation in the Consultation Paper¹ was for the establishment of a system of Regional Family Courts, located in approximately eight to ten regional centres, functioning as a division of the Circuit Court and operating in the context of a range of family support and advice services. The new Regional Family Court would have a unified family law jurisdiction, wider than that of the present Circuit Family Court, embracing both private family law and public child protection law. Each Regional Family Court would be presided over by a Circuit Judge, nominated to serve for a period of at least one year and assigned on the basis of his or her suitability to deal with family law matters. Attached to each Regional Family Court, and operating under the aegis of the Court, would be a family court advice centre. The District Court would continue to provide, at its more localised venues, emergency and certain specific reliefs.

The rationale for this model

4.02

From a structural point of view the two principal features of this model which distinguish it from the present courts system are:

4.03

As regards (a), we were convinced that the traditional approach of having family law matters dealt with as part of a mixed jurisdiction has, with the

dramatic increase in family law business, proved itself to be unsatisfactory. There has been a tendency in busy courts to provide too little time for family law cases, and often to relegate them to the bottom of an onerous mixed case-load. Moreover, the characteristics of family law cases, outlined above,² give rise to special requirements which argue for a more discrete system. These include the need for specialist support services for the courts, for mechanisms which ensure that alternatives to litigation are used wherever possible and appropriate, and for procedures which respect family privacy and the special nature of family cases. There is the need also to recognise that a degree of specialist knowledge and a certain aptitude is required of judges who preside over family law disputes, as well as of the lawyers who practice in the field

4.04

At the same time we were well aware that, within a relatively small jurisdiction with finite resources and a limited pool of judges, the establishment of separate systems of justice for particular areas of social conflict has its problems. Specialised facilities are generally more costly than generalised services. The establishment of a family courts structure entirely new and independent of the existing courts system seemed to us to be unrealistic in terms of its costs, and not to be justified by the overall scale of family law business in a country the size of Ireland.

4.05

For these reasons we recommended a 'discrete', rather than an entirely independent system of family courts. The Regional Family Court would function as a division of the Circuit Court, making use initially of existing Circuit Court facilities where these are adequate for the purpose, and having access to the pool of judges available at Circuit Court level.

4.06

As regards (b), the matter of regional centralisation, we were conscious of the advantage in terms of access, especially in those areas of the country having a sparse and scattered population, of the localised venues which the existing District and Circuit Courts provide. We were also convinced of the need within any reformed structure, to guarantee rapid access to the courts for emergency remedies such as interim barring and protection orders. We felt, nevertheless, that a degree of regional centralisation was a price worth paying for a more specialised and higher quality family courts service:

Responses to the Commission's provisional recommendation

4.07

The response to our structural proposals was largely positive, with widespread recognition of the need to attach much greater priority and more resources to family law cases. There was considerable support for the concept of a family court with a unified jurisdiction, and substantial concern over the current development of a two-tier system of family law. There was a widely shared view that we had recommended too few regional centres. There was also some concern over the financial implications of the proposals, together with a fear that, should the proposals be implemented in a piecemeal way with insufficient resources, the consequences could be disastrous. There was some support for the view that the new family courts system should operate at District Court level.

4.08

While the great majority of submissions and comments favoured a separate Family Court at Circuit Court level, there was a great variety of views as to the role of the District Court. Opinion differed as to whether it should maintain its present jurisdiction, or retain only an emergency jurisdiction, or have its jurisdiction removed altogether and concentrated in the Circuit Court. Few favoured maintaining the status quo.

4.09

Other reservations concerned the details, rather than the underlying structure, of our recommendation. For example, there were different opinions on what the precise scope of the Regional Family Court's jurisdiction should be, and whether there might be rather more flexibility in the structuring and assignment of judges to the new Regional Family Courts. These matters are discussed further below.

Questions Of Structure – The Commission's Views

(a) The concept of a unified family law jurisdiction

4.10

We are convinced of the need to establish a family court with a unified jurisdiction. Because of the central importance of this conclusion we wish to reiterate here in summary form the supporting arguments. They are that a unified jurisdiction:

Detailed recommendations concerning the unified jurisdiction appear below at paragraph 4.28 et seq.

(b) The question of accessibility

4.11

We accept that a more dedicated and specialised family courts service implies a reduction in the number of judges assigned to deal with family law cases, and some reduction in the number of venues at which family cases may be heard. This is the case regardless of the level within the courts' system at which the family court operates. The inevitable consequence is some lessening in the accessibility (in its geographical sense) of family courts to the public. We believe, for the reasons given in paragraph 4.06 above, that this is a small price to pay for the considerable benefits that accrue from a unified and more specialist family courts service.

4.12

We believe that certain modifications to our provisional recommendations are possible which would offer the public some increase in accessibility. We accept that our original estimate of the number of Regional Family Court Centres required was too low. We also now accept that Family Court Judges should when necessary make use of other convenient venues away from the Regional Centres, provided that the facilities are adequate.

4.13

We also reiterate and reaffirm our view that, where applications for emergency relief are concerned, the requirements of accessibility (the availability of the judge, the geographical proximity of the court, and the ease and speed at which applications may be made) are of overriding importance. Certain emergency and interim reliefs and remedies provided for in the District Court should therefore remain available at all District Court venues.

These matters are dealt with in more detail below at paragraphs 4.25 to 4.27.

4.14

It is also suggested that consideration should be given to the introduction of subsidised transportation to and from the Regional Family Court.

(c) The status of the Regional Family Court

4.15

The provisional recommendation was that the Regional Family Court

should operate as a division of the Circuit Court.⁴ There was general support for this recommendation, though in some submissions it was suggested that the new system should be located at District Court level, with appeal to the Circuit Court. The lower costs and greater accessibility associated with the District Court were the main reasons given

4.16

We have given a great deal of further thought to this important issue. Before presenting our conclusions it may help to set out the arguments which have been advanced for and against the two levels of court:

The majority of submissions to the Commission favoured the Commission's provisional recommendation for a court at Circuit Court level.

4.17

In approaching a resolution of this issue, we begin by stressing our view that considerations of substances should take priority over questions of status in devising a new family courts structure. Hence, determining the precise status which the family court should enjoy within the hierarchy of the overall courts system is of less importance than securing that certain requirements of substance are met, viz.,

4.18

Our second observation is that in some respects the comparison which has been made between the District and Circuit Courts as they presently operate is off the point. We must begin by recognising that, whether the Family Court becomes a branch of the District or the Circuit Court, far-reaching changes will be required in its organisation, procedures, support services and structure of costs. For example, a Family Court with a unified jurisdiction operating at District Court level could obviously not apply the same summary procedures in all cases; some of the procedural devices of the higher courts (for example interrogatories and orders for discovery) would need to be incorporated in some way. Nor would we wish to see continue the present unsatisfactory situation in which a substantial number of parties to District Court proceedings are legally unrepresented, and in which decisions, which can have an enormous impact on a family, may have to be taken after a sometimes brief and summary hearing. Equally a Circuit Family Court with a comprehensive jurisdiction may be expected to introduce simple procedures for some types of application, and there would be a case for new and special provisions as to costs to take account of the wider range of cases coming before the court.

4.19

Our third comment relates to our assertion, made in the Consultation Paper,¹⁰ that fundamental issues relating to the status of persons are not appropriate for determination at District Court level. Some further explanation is required. It was not intended to suggest that District Judges lack the qualifications or capacity to make such decisions. Indeed it is important to recognise that, in the context of child protection and domestic violence,¹¹ the District Court already has powers to make far-reaching decisions which may indeed have a fundamental and long-term impact on family members and their relationships. However, we remain of the view that, as long as the District Court remains a court of “summary jurisdiction” with considerable limitations in its jurisdiction generally (i.e. not only in relation to family law),¹² it would appear, to say the least, anomalous to confer upon it a comprehensive family law jurisdiction. Further, given the status and the high level of protection guaranteed to the family and its members, especially under Articles 41 and 42 of the Constitution, it would be objectionable to confer a comprehensive jurisdiction in respect of family law matters on a court of summary jurisdiction. On the other hand, it should be noted that the legislature has already gone far in the extent of

the family law jurisdiction which it has conferred¹³ on the District Court

4.20

We must now move towards conclusions. Our first conclusion represents our preferred solution for the long term. In view of the heavy involvement of both the District and Circuit Court in family law business, there is much to be said for the introduction of a unified family courts system which draws on the resources (especially the judiciary) of both courts. In the Consultation Paper we considered as impractical a Family Court with judges drawn from courts of different status. However, given that a much wider review of the courts' system is now underway, the possibility of a more radical restructuring of courts of first instance arises.¹⁴ Without in any way prejudging the outcome of this wider review, it is appropriate for us to point out that such a restructuring, especially if it were based on a model of a single-tier first instance jurisdiction below that of the High Court, would facilitate the creation of the type of specialist family courts service which we envisage.

4.21

Until decisions are made on these broader questions, 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.

Some further comments on accessibility and costs

4.22

We appreciate that this recommendation may give rise to concerns about accessibility and costs. With regard to accessibilty, we would emphasise the following:

4.23

With regard to the question of costs generally, any restructuring of the family courts system, whether at Circuit or District level, has resource implications. A better family courts' service has a price attached. However, we are not recommending the wholesale introduction of an entirely new family courts structure. What is being recommended dovetails into the existing courts

structure, accepts the use of existing facilities in the interim, and (with the exception of the recommendations concerning judicial assignment) can be implemented on a progressive basis. We do recognise that our recommendation would involve a very substantial increase in the family law work carried out at Circuit level, and that this transfer should not be undertaken without the necessary resourcing. This matter is further emphasised in the “Caveat Concerning Resources” at the end of this Chapter

4.24

As regards costs to litigants, we recommend that a special scheme of costs be devised for the new Regional Family Courts which would reflect the wide range of procedures included in its unified jurisdiction. We believe that this new form of unified jurisdiction requires an imaginative and flexible approach to the question of costs.

Number And Locations Of Regional Family Courts

4.25

The Commission is aware that re-organisation of the Circuit Court has been under discussion for some time.¹⁷ We also recognise that final decisions concerning the number and location of Regional Family Courts will require detailed analysis on a regional basis of the current volume of family law business in both the Circuit and the District Court. We do not have access to such data. For these reasons we confine ourselves to generalised proposals concerning these matters, concentrating on the underlying considerations.

4.26

We believe that approximately 15 Regional Family Court Centres will be needed. We accept the advice in a number of submissions that our original estimate of 8 to 10 centres was too low. In deciding on the precise number and locations of centres it will be necessary to take account of population density, geographical accessibility, as well as current levels of family law business. Proximity to relevant services, such as legal aid and advice, mediation and welfare services, will also be relevant.

4.27

It is clear that, with 15 Regional Family Court Centres, it will not be possible to appoint a separate Family Court Judge to sit in each centre. Some judges may need to preside over more than one Regional Family Court, and flexibility may demand that, in particular circumstances, a judge may have to operate in more than one Circuit.¹⁸ It may therefore be asked why it is necessary to limit the number of Regional Family Court Centres. The reason is that, in our view, if each Family Court Centre is to have appropriate courtroom and other physical facilities, together with the necessary support and advice services, considerations of economy require the number to be limited. We do however accept, as we have already indicated, that Family Court Judges should be permitted to make use of other suitable venues apart from the Regional Centres where considerations of accessibility make this appropriate.

The Unified Jurisdiction

4.28

In the Consultation Paper it was provisionally recommended that the Regional Family Court should have jurisdiction in the following matters:¹⁹

It was noted that the Circuit Court already has a partial jurisdiction in each of these matters.

4.29

We recommended in addition that the Regional Family Court should have jurisdiction in the following matters:²¹

It should be noted that nullity proceedings are soon to come within the jurisdiction of the Circuit Family Court under section 37 of the Family Law Act, 1995.

4.30

The provisional proposals for a unified jurisdiction received broad support. Some contributors suggested that consideration be given to including criminal proceedings against children. It was also suggested that the Commission should go further by giving the Regional Family Court a comprehensive jurisdiction, including an emergency jurisdiction, in family law matters. It was argued that, by concentrating all such jurisdiction on the Regional Family Courts, a unified jurisprudence would be facilitated and inconsistencies in practice between different District Courts would be eliminated. This matter is discussed further under the “Jurisdiction of the District Court”.²²

4.31

There were some objections to the provisional recommendations. One view was that the Commission should give consideration to the idea of a concurrent jurisdiction in the District and Circuit Courts, leaving parties to decide in which court to present their case. The issue of resources was also raised. A number of contributors drew attention to the need for adequate funding of any jurisdictional changes, especially where the workload of any particular court would be increased.

4.32

We confirm the provisional recommendation with the following modifications. The jurisdiction of the Regional Family Court should be comprehensive and include all emergency remedies, including emergency care proceedings under the Child Care Act, 1991 and the emergency relief provided by the Domestic Violence Act, 1996. This is without prejudice to any parallel

jurisdiction in the District Court (a matter discussed below).²³

Jurisdiction under the Domestic Violence Act, 1996 and under the Child Abduction and Enforcement of Custody Orders Act, 1991 should also be vested in the Regional Family Court, as should jurisdiction under section 7 of the Adoption Act, 1991, under the Maintenance Act, 1994, and under divorce legislation, if divorce is introduced.

4.33

As regards criminal proceedings involving children and young persons, we would prefer to reserve our position. The issue of juvenile justice is a complex one. Whether the Regional Family Court would be an appropriate forum to hear cases alleging criminal conduct by children and young persons will depend in part on whether there are to be changes in the manner in which such cases are to be processed and characterised. If, for example, the age of criminal responsibility were raised, from the current 7 years, and if cases involving children below the new age (as well perhaps as some cases including older children) were to be treated more in the nature of civil (i.e. care and protection) cases, the argument for involvement of the Regional Family Court would be strengthened. But many other issues would arise including the impact on the Circuit Court of transferring to it this very substantial area of work, as well as the future of the specialist Dublin Metropolitan Children's Court.

The Jurisdiction Of The District Court

Provisional recommendations

4.34

In the Consultation Paper we recommended provisionally that the District Court's jurisdiction in family matters should be confined to the giving of emergency and certain specific remedies,²⁴ viz:

Submissions and comments

4.35

Some commentators argued for the complete removal of the District Court's family law jurisdiction. The following is a sample in summary of the comments and suggestions made on this matter:

4.36

There remained, on the other hand, considerable support for the

retention of an emergency jurisdiction in the District Court.

4.37

There was also a suggestion that, within the new system, it might be possible to allow the District Court to retain a form of reserve jurisdiction in respect of certain cases if the Regional Family Court were unavailable or not sitting.

Should the District Court retain an emergency jurisdiction? – The Commission's views

4.38

Where applications for emergency relief are concerned the requirements of accessibility – availability of the judge, geographical proximity, and the ease and speed with which applications may be made – are of overriding importance.

4.39

If it were possible to guarantee the same level of accessibility in the Regional Family Court as presently exists in the District Court, then it might be desirable to give the Regional Family Court exclusive jurisdiction in all matters including emergency applications. This would certainly contribute to greater uniformity in practice which, according to a number of our commentators, is lacking at present.

However, we are not convinced at this stage that suggested measures to ensure accessibility in emergency cases to the new Regional Family Court would be adequate. It should not be forgotten that emergency applications in family law cases are not rare events. The setting aside of special days or times for emergency applications would be helpful, but it would not resolve the problem of the real emergency occurring outside normal court time. Also, given the number of Regional Family Court Centres proposed,²⁶ it would be practically impossible to ensure the availability of a Circuit Judge at all times in all regions. The idea that it might be possible, in cases of emergency, for a court registrar to make ex parte orders is worth considering, but there could well be constitutional difficulties and it would still not be possible to provide comprehensive coverage. The great advantage of an emergency jurisdiction in the District Court lies in the large number of District Judges available and in the broad geographical spread of the District Courts.

4.40

For these reasons we have concluded that the District Court should for the present retain an emergency jurisdiction. Once the system of Regional Family Courts has been in operation for some time, this matter will need to be reviewed in the light of experience. For the moment we believe that the risks attached to removing all emergency jurisdiction from the District Court are too great.

4.41

The idea of an emergency jurisdiction in the District Court needs to be further defined. If the District Court's general jurisdiction over matters such as maintenance and child custody and access is to be terminated, any emergency measure capable of being taken by it will need to be interim in nature. A full hearing of the issues for the purpose of making a more permanent order should be deferred to the Regional Family Court. The procedures for sending on cases from the District Court to the Regional Family Court will need to be clarified.²⁷

Should the District Court retain any other elements of its family law jurisdiction? – The Commission's views

4.42

When a District Court grants emergency relief, such as an ex parte interim barring order,²⁸ certain consequential orders, though not necessarily emergency in their nature, may be required on an interim basis. There may be a need, for example, to order maintenance and make provision concerning custody of or access to dependent children pending a full hearing before the Regional Family Court. There may be need for provisional orders protecting family property. Full provision, therefore, should be made for the District Court to grant interim orders which are either in themselves emergency orders or necessary ancillaries to emergency orders.

Recommendations

4.43

The jurisdiction of the District Court in family law matters should be limited to the making of emergency orders and interim orders especially in situations of emergency. In all of these matters the jurisdiction of the District Court would be parallel with the jurisdiction of the Regional Family Court.

What we envisage is a system whereby all substantive decisions having long-term effect would be reserved to the jurisdiction of the Regional Family Court. The District Court would retain jurisdiction to make interim decisions, especially where they are needed in an emergency, pending a hearing in the Regional Family Court. Any extension of an interim order would be determined in the Regional Family Court.

4.44

The District Court's jurisdiction should include the following matters in particular:

4.45

Where application for the above interim or emergency reliefs is made to the District Court, the procedure should be simple, involving the minimum necessary formality, and composite in the sense of automatically triggering proceedings in the Regional Family Court.

Caveat Concerning Resources

4.46

The changes in jurisdiction which we have recommended will result in a major shift of family law business from the District to the Circuit Court. We have pointed out that the District Court at present deals, in terms of numbers of family law applications, with the great majority of cases. The result of our proposals will be to reverse this situation.

4.47

We have explained the reasons why we favour this change. We have also indicated that we are aware of the extraordinary service that the District Court provides. It is remarkable that the District Court has been able to cope with its enormous case load. It has relied heavily on the experience, hard work and flexibility of its judges and supporting staff.

4.48

We remain convinced that the recommended reforms will lead to a higher-quality and more consistent family courts service. We are, however, well aware of the risks involved in jurisdictional changes, particularly if the appropriate resources are not made available to the courts on which new responsibilities are imposed.

4.49

If the system of Regional Family Courts is to operate successfully, the following are absolute prerequisites:

4.50

We add that, regardless of our proposals, it is likely that, if divorce is introduced, it will result in a substantial increase in Circuit Court family law business, including some transfer of business from the District Court. We also add our view that the need for a substantial investment of resources arises irrespective of the precise shape or status of a revised family courts structure. Note also that it is not within our remit to suggest any changes to the current jurisdiction of the High Court in family law matters.³³

CHAPTER 5: FAMILY COURT JUDGES¹

Provisional Recommendations Concerning Judicial Appointments To The Regional Family Courts

5.01

We provisionally recommended in the Consultation Paper:

Status Of Family Court Judges

5.02

Our provisional recommendation was that the Regional Family Courts should be presided over by Circuit Court Judges. We considered the possibility that District Judges might also be eligible for nomination to the Court.⁷ We recognised that this would enlarge the pool from which Family Court Judges are drawn and acknowledged the fact that there are already a number of District Judges with a tried and tested capacity to deal expertly and sensitively with family law cases. However, we provisionally concluded that a system whereby judges would in effect rotate between the District and Circuit Courts could give rise to serious problems of judicial status.⁸

Submissions and comments

5.03

This matter gave rise to a debate at our December 1994 Seminar which revealed a variety of opinions. There was some support for our provisional conclusion, and some concern that a Court staffed by District and Circuit Court Judges might give rise to jurisdictional questions or even “judicial squabbles” over status and pay. However, a contrary view was strongly expressed. It was argued that it would place an impossible burden on the Circuit Court if the new system were to be staffed entirely by Circuit Court Judges, and it would deprive the Regional Family Court of the expertise of many District Court Judges. It was suggested that concerns over problems of judicial status were exaggerated, that it is “the sin of the legal system and profession to worry too much about status”, and that English and Scottish systems provide examples of how judicial secondment between different levels of court may operate successfully.⁹ An alternative view was that, to avoid the loss of accumulated expertise in the District Court, consideration should be given to the promotion to the Circuit Court of District Court Judges with the appropriate expertise.

Appointment, promotion and secondment of judges

5.04

The Commission decided to enquire further into the issues of appointment, promotion and secondment of judges. The results of this enquiry appear in full in Appendix C which includes analysis of the current situation in Ireland, as well as a discussion of current practice in England, Wales and Scotland. For the purpose of the present discussion, the following are some of the more important facts and conclusions.

5.05

In Ireland there is no provision for secondment of District Judges to the Circuit Court.¹⁰ Neither is there any provision for the appointment of

temporary judges for the specific purpose of alleviating backlogs.

5.06

In Scotland and in England and Wales systems of secondment of judges from lower to higher courts have been operating for many years. There is also an established practice in both legal systems of appointing judges on a temporary basis. In Scotland temporary appointments are sometimes for substantial fixed periods (for example, 3 years) which may be renewed. In general, where secondment or temporary appointment operates, the judge concerned has all the same functions and powers as a permanent judge of the court in which he or she sits, but does not enjoy equal status in respect of such matters as remuneration, allowances, pensions, and in matters of judicial precedence. The practice of secondment has from time to time been criticised as a device for avoiding the expense involved in full promotion.

Analysis of issues

5.07

The somewhat rigid judicial structure which operates in this country raises some broad questions which go beyond the scope of this more limited discussion of family courts.¹¹ Greater flexibility in this area would undoubtedly have certain advantages. Predicting with any degree of accuracy the flow of business in the courts is inherently difficult. There will inevitably be troughs and peaks in any area of practice. Distribution of business geographically may also be uneven. A system which would allow greater scope for the redeployment of judicial resources would have much to recommend it. A flexible system is particularly important where, as we are suggesting in the area of family law, a degree of specialism is required. There is only a small pool of Circuit Court Judges available, and it may be difficult to find from within it a sufficient number with the special qualities required to deal with family law issues. If, as we have suggested, Family Court Judges are to rotate, this problem would be even greater. We note with satisfaction, however, that the Courts and Court Officers Act, 1995, increases the maximum number of ordinary judges of the Circuit Court from seventeen to twenty-four.¹²

5.08

As regards possible secondment of District Judges to the proposed new Regional Family Court, the main benefits would be enlargement of the pool of judges available and the opportunity to use the services of District Judges who have experience of, and an aptitude for, family law cases. There would be greater room for manoeuvre and more flexibility in responding to particular needs, such as the removal of bottlenecks, within the system. On the other hand, if District Judges are to be seconded to the Regional Family Court on a substantial and regular basis, this would argue for a further increase in the number of Circuit Judgeships. A system of Regional Family Courts, operating as a branch of the Circuit Court, in which the secondment of District Judges was

institutionalised and substantial, seems to us to be inappropriate. The majority of Commissioners believe that secondment would not be appropriate even in exceptional circumstances. One Commissioner is of the view that District Judges should be eligible for secondment, in exceptional circumstances and for a fixed period, to the Regional Family Court. Exceptional circumstances would include a situation in which it proves impossible to fill a vacancy on the Regional Family Court from among the Circuit Court Judges, or one in which additional judicial resources are needed to overcome a temporary crisis, such as the sudden buildup of a backlog of cases

5.09

As for promotion of District Judges to the Circuit Court, we confine ourselves to the comment, in the context of the reorganisation of family courts, that there are a number of District Judges who have gained a reputation for the sensitivity and skill with which they handle family law cases and that their experience and expertise should not be lightly abandoned.

5.10

The appointment of temporary judges to the Regional Family Court for fixed time periods would be another way of injecting flexibility into the system, and could be of particular assistance in helping to reduce backlogs when and where they occur. Again this is not a simple matter. In the Consultation Paper¹³ we expressed some doubt as to whether fixed-term appointments would be consistent with the requirements of judicial independence. There is a danger that the perceived economic advantages of temporary judicial appointments may lead to their proliferation and to a consequent weakening of the judiciary.

Conclusions

5.11

Our conclusions are as follows:

Suitability For Assignment To The Regional Family Courts

5.12

We expressed the view in the Consultation Paper that judges who deal with family law cases should be nominated to do so on the basis of their aptitude

for such cases.¹⁴ There has been general support for, and no dissent from, this view in the submissions and comments received. We therefore confirm our provisional recommendation:

Assignment To The Regional Family Court

5.13

Our provisional recommendations concerning assignment of judges to the Regional Family Court are set out in paragraph 5.01 above. We suggested that assignment of appropriate judges should be made by the President of the Circuit Court. We wish to modify that recommendation, and propose that the selection and assignment of appropriate judges to sit on Regional Family Courts should be made by the President of the Circuit Court together with the two senior ordinary judges of the Circuit Court.

The period of assignment

5.14

We provisionally recommended that the period of assignment to the Regional Family Court should be for not less than one year. We were opposed to the idea of a permanent family court judiciary, preferring instead a system of rotation within the Circuit Court. There is both a tradition against judicial specialisation within our system and a commonly held view that it is excessively stressful and may lead to “fatigue” if a judge deals exclusively with family law on a permanent basis. We believed that recruitment to permanent judgeships in the Regional Family Court would prove difficult.

5.15

Some commentators have suggested that problems of stress and fatigue, if they exist, are the product of the excessive case load and other adverse factors associated currently with family law cases. If reforms in the system are successful there would not be the same level of resistance to the idea of a permanent family law judiciary. We accept that this is possibly so and that in some perhaps exceptional cases it may be appropriate for a judge to be assigned to the Regional Family Court for a substantial period of time. There should, in our view, be flexibility in this matter. We stipulated a minimum one year period of assignment. This offers a reasonable degree of continuity and recognises that newly assigned judges may need an opportunity to familiarise themselves with the system. There may, nevertheless, arise exceptional circumstances in which a shorter period of assignment of a judge who has previous experience of family court work may be appropriate, as for example where there occur periodic or isolated backlogs.

Fixed and roving assignments

5.16

Concern for flexibility in the new system prompted some commentators to question the idea of assigning a separate judge to each Regional Family Court. Attention was drawn to the considerable differences in the volume of family law cases between counties.¹⁵ The necessary flexibility would be provided, in the opinion of some, by the assignment of a “roving” or “locum” Circuit Judge. There was much support for the deployment within the present system of extra judges, where necessary, moving from circuit to circuit, and sitting with the resident Circuit Judge in venues having the capacity to accommodate two judges simultaneously.¹⁶

5.17

We accept the need for flexibility in the assignment of judges to the new Regional Family Court. We have already indicated that the choice of Regional Family Court centres should take into account the volume of business in the different regions. Nevertheless there will be occasions when backlogs require the deployment of an auxiliary judge; there may also be occasions when the level of business in one Regional Family Court is slack enough to allow the assigned judge to provide temporary assistance in a neighbouring Regional Family Court.

Conclusions

5.18

We recommend as follows:

CHAPTER 6: APPEALS

6.01

The matter of appeals in family law cases was not dealt with in the Consultation Paper. The Commission has been persuaded, in view of the number of submissions on the matter, that it should be discussed in this Report. It is necessary to begin with a brief description of the present situation.

Existing System Of Appeal In Civil Cases

6.02

The Constitution of Ireland establishes the Supreme Court as the Court of Final Appeal¹ and provides for a right of appeal, as determined by law, from decisions of the Courts of First Instance, the latter including the High Court² and “Courts of local and limited jurisdiction”.³ Against this background, legislation provides the appellate framework within which decisions of the different Courts may be challenged.⁴

Appellate jurisdiction of the District Court

6.03

The District Court, as the “lowest” in the hierarchy of courts, has the most restricted appellate jurisdiction and may hear appeals from decisions of some statutory bodies.⁵

Appellate jurisdiction of the Circuit Court

6.04

Section 84 of the Courts of Justice Act, 1924 empowers the Circuit Court to conduct a full rehearing of a District Court case and such an appeal may be

initiated by either the plaintiff or the defendant. The Circuit Court may also hear appeals from certain administrative decisions.⁶

Appellate jurisdiction of the High Court

6.05

The High Court may hear appeals from both the District and Circuit Courts. Appeals on a point of law from decisions of the District Court may be entertained by the High Court by virtue of section 52(1) of the Courts (Supplemental Provisions) Act, 1961. This appeal is often referred to as a “case stated”. Following argument before the High Court, the presiding judge rules upon the point of law raised and the case is referred back to the District Court for final determination. Section 52(2) of the 1961 Act also provides for a further appeal on a point of law from the decision of the High Court to the Supreme Court, but only with the leave of the High Court Judge.

6.06

The High Court may also conduct full re-hearings of cases initiated in the Circuit Court, in accordance with the Courts of Justice Act, 1936. The decision of the High Court Judge in such a case is final⁷ unless that judge, upon application by either party, adjourns the High Court hearing and grants leave to appeal on a point of law to the Supreme Court before he or she reaches a final verdict.

Appellate jurisdiction of the Supreme Court

6.07

Under the Constitution, the Supreme Court is the only court of final appeal,⁸ but it is not only a court of appeal and may exercise a non-appellate jurisdiction, for example under Article 12.3.1⁰ and Article 26 of the Constitution.⁹ It is clear from Article 34.4.3⁰ that, subject to such exceptions¹⁰ and regulations as may be laid down by law, the Supreme Court has appellate jurisdiction from “all decisions of the High Court” and “from such decisions of other courts as may be prescribed by law.”¹¹ Further, no law may be enacted which would have the effect of limiting the jurisdiction of the Supreme Court to hear appeals from the High Court in constitutional cases.¹²

6.08

Where a case is “stated” to the Supreme Court with the leave of the High Court pursuant to section 52(2) of the Courts (Supplemental Provisions) Act, 1961, the Supreme Court rules upon the point of law raised and returns the case to the

High Court; that point of law cannot thereafter be appealed back to the Supreme Court.

6.09

The procedural aspects of the Supreme Court's appellate jurisdiction are governed by Order 58 of the Rules of the Superior Courts, 1986.

The introduction of new evidence

6.10

Generally, the introduction of new or updated evidence is permitted by an appellate court although, in respect of new evidence, queries may be raised as to why the information was not adduced at the earlier hearing. There may also be restrictions on the introduction of new material before the Supreme Court.¹³

Appeals in family law cases¹⁴

6.11

In the family law context, barring orders,¹⁵ maintenance orders,¹⁶ orders made under the Guardianship of Infants Act, 1964¹⁷ and orders for committal¹⁸ made by the District Court may be appealed to the Circuit Court.¹⁹ An appeal against a District Court order will usually operate as a stay on that order, provided that a recognizance is entered into.²⁰ However, this provision does not apply in relation to appeals against a barring order made in the District Court.

6.12

Similarly, appeals may be lodged to the High Court against decisions of the Circuit Court²¹ in respect of barring orders,²² maintenance orders²³, orders under the 1964 Act,²⁴ orders under the Judicial Separation and Family Law Reform Act, 1989 and other miscellaneous family law orders within the jurisdiction of that Court.²⁵

6.13

Family law orders made by the High Court may be appealed to the Supreme Court, subject to procedural rules regarding the nature of the Supreme Court's appellate jurisdiction.²⁶

Submissions

6.14

Many submissions received by the Commission questioned whether the prevailing type of appeals procedure, which involves a full re-hearing of cases, is suitable for family law matters. One suggestion was to change the present system to provide for appeals by way of motion based on a transcript of the proceedings. Indeed, quite a number of submissions focused on the issue of the use and availability of transcripts in a revised appeals process.

6.15

It was noted that appeals on transcript would be costly, would slow proceedings down and would mean that a case would not get a full re-hearing on appeal. It was also argued that the introduction of a transcript system of appeal must be conditional on the State providing a transcript whenever it is required. The need to introduce a transcript system of appeal was challenged on the basis that it was an expensive and time consuming way of addressing the issue.

6.16

Another suggestion was that the automatic right of appeal from the Circuit Court to the High Court should be restricted to cases involving child custody, adjustment of property rights and nullity, and in those cases appeal would be by way of transcript. It was also suggested that an appeal should only be allowed on a point of law to the High Court since, it was argued, there was little point in going over the whole case again in another Court.

6.17

While accepting all that is said by those who are unhappy about appeals in family law cases and hoping that new procedures will lessen the risk of bad decisions, we cannot overlook the fact that judges are humans and inevitably will sometimes get things wrong. Therefore, appeals will be necessary in certain circumstances. The guiding principle is that it is vitally important that the best possible decisions are reached in family law cases, having regard both to the nature of the decisions and their effect upon families and their members.

6.18

Discussion also centred on the issue of the number of family law decisions which are actually appealed. Acknowledging the possibility of regional variations, contributors estimated that the number of appeals was generally small.

6.19

As a result of these discussions, the Commission was of the opinion that the issues raised should be considered in the light of any available statistics.

Statistical Information

The District Court

6.20

In the year ending 31.07.1992, 448 orders were appealed amounting to 3.6% of the total number of orders made by the District Court. There were 384 appellants. This latter figure suggests that a number of appellants challenged more than one order.

In the year ending 31.07.1993, 495 District Court orders were appealed, amounting to 3.8% of the total number of orders made. There were 404

appellants.

In the year ending 31.07.1994, 594 orders were appealed from the District Court which represents 4.16% of the total number of orders made. There were 499 appellants.

The Circuit Court

6.21

It has not been possible to obtain figures in respect of the number of Circuit Court orders in family law cases which are appealed to the High Court.

The High Court

6.22

Neither has it been possible to obtain figures in respect of the number of High Court orders in family law cases which are appealed to the Supreme Court.

The Australian System

6.23

The Australian Family Court Guidelines establish an appeals system for family law matters based upon the premise that “the opportunities for an appeal to be used as a negotiating tool and/or delaying tactic on behalf of one party”²⁷ should be minimised:

6.24

In the Australian appeals system, the general standard of expedition for the disposal of appeals is set at six months from the filing of the notice of appeal to the delivery of judgment.²⁹ To achieve this target, parties and their legal representatives are obliged to follow a timetable³⁰ and their progress is monitored by the Deputy Registrar (Appeals) in the Appeals Registry. Where time standards are not adhered to, and where no good reason for any delay can be given, the relevant Court may dismiss an appeal.³¹

6.25

When notices of appeal are filed, many of the case management measures and procedures (outlined in Chapter 8) are activated. An appointment may be made for the parties to attend a conciliation conference; such conferences have been introduced on a trial basis for appeals.³² Solicitors should provide the regional appeal registrar with an estimate of the length of hearing and a report on their current state of preparedness, including whether any problems are anticipated, to aid the setting of a timetable.³³ Appeal books must be filed six weeks prior to the hearing date,³⁴ and the appellant, and cross-appellant if any, are required to “file and serve [an] outline of argument and list of authorities not less than seven days before the hearing date.”³⁵ The respondent must file and serve his or her corresponding documents “not less than two clear working days before the hearing date.”³⁶ The regional appeal registrar maintains considerable control over the progress of the proceedings and must know “at all times the state and progress of the matter.”³⁷

6.26

The emphases, therefore, in the Australian family law appeals system are on swift hearings, pre-hearing clarification of issues and, as far as possible, the prevention of the appeals process being used as a negotiating tool or delaying tactic by either party.

Recommendations

6.27

We believe that the appeals process should not be used as a negotiating or delaying tactic by any party to proceedings. Accordingly, we recommend that the relevant Court Rules Committees should introduce the necessary rules and procedures to ensure that the risk of such abuse of the appeals process may be minimised.

6.28

In particular, we recommend that case management procedures should be introduced in relation to the conduct of appeals as well as in other areas of the litigation process.³⁸Such procedures should ensure, inter alia, that those aspects of a court decision which are being appealed are clearly and specifically identified in the notices of appeal and cross-appeal (if any). Pre-trial conferences and exchanges of documents should be required; the relevant issues would thus be clarified and crystallised prior to the hearing. Further, control should be exercised by the courts in respect of the speed with which an appeal is processed; a time standard, similar to that under the Australian Family Court Guidelines, may be a useful innovation. Administrative responsibility for the pre-trial procedures, including the monitoring of the progress of appeals cases, should be assigned to the Family Court Office.

6.29

We are also of the opinion that a full re-hearing of a family law case on appeal from the Circuit to the High Court should, in general, be avoided. Instead, notices of appeal should clearly set out the aspects of the relevant order(s) which are being appealed and only those aspects of the case should be discussed at appeal stage. This would speed up the appeals process, reduce costs and avoid exacerbating or rekindling any of the earlier acrimony by “going over the whole thing again”.

6.30

Given the relatively low number of appeals, and the financial and time implications of the transcript system, we have concluded that it would not be appropriate to recommend changes to the appeals process which would require the transcripting of all cases. Rather, it is recommended that audio-tape recording facilities should be installed in courtrooms; all proceedings should be recorded without excessive cost or delay. Reference at the appeal stage to audio-tapes of the original proceedings should obviate the need for a full re-hearing of the oral and expert testimony given at the original hearing and, where required, should facilitate clarification of aspects of the case not specifically under appeal.

6.31

We also recommend that the Family Court Office should be assigned the responsibility of collating statistical information on notices of appeals lodged. In addition to the numbers of orders appealed, record should be kept of the number of cases which settle before the hearing, the number which are heard by the appellate court and the nature of the specific orders or aspects thereof which are appealed. It may become apparent that certain orders (perhaps relating to child custody, for example) are appealed more often than others; these issues could then be addressed more comprehensively or in greater detail at mediation or pre-trial stages.

CHAPTER 7: PROMOTING AGREEMENT AND AVOIDING LITIGATION

7.01

The system which we provisionally recommended in the Consultation Paper was based upon the central principle that, as far as is possible and just, people should be encouraged to resolve their disputes and agree on solutions without having recourse to the adversarial courts system.

7.02

Already, many family disputes are resolved by agreement or settlement.¹ The recurrent findings of studies into the role of lawyers and courts in other jurisdictions “in promoting settlement-seeking and the use of informal judicial interventions to reduce the likelihood of trial” demonstrate that “settlement dominates”.² Anecdotal evidence in Ireland suggests that a large number of disputes are settled without formal recourse to the courts.³

7.03

The negative effects of litigation and adversarial procedures are well recognised. In the introduction to the Consultation Paper we stated:

7.04

The Chief Justice of the Australian Family Court has aptly stated the requirement that:

We wish to reiterate that the active promotion of dialogue and agreement must be an integral feature of the family justice system.

Essential Components Of The New System

7.05

In the Consultation Paper, we stated that if the resolution of family disputes through means other than adversarial court proceedings is to be encouraged, there are a number of prerequisites:⁵

Many of the legal issues surrounding the process of mediation are dealt with in Chapter 8. In this Chapter we confine our comments to (2), (3) and (5) above.

Diversion

(a) Family Court Information Centres

7.06

Each Regional Family Court should have attached to it a Family Court Information Centre with responsibility for providing to those who have begun, or are considering the institution of, family law proceedings impartial, objectively presented information relating to available alternatives to litigation, implications of separation, court processes and case management information and information on available support services. Any legal information received should be information only, and not advice.

7.07

In the Consultation Paper we provisionally recommended that:⁷

7.08

The response to these proposals was positive. We reaffirm them but subject to the following additions and modifications:

7.09

The Family Court Information Centres will also play a very important role in respect of the significant number of legally unrepresented litigants, particularly at District Court level. A study of marital breakdown and family law in Ireland¹⁰ has shown that “legally unrepresented cases form a large and highly significant part of the family law system ....”¹¹ The authors identify the “dualism of legal representation” in this jurisdiction, where most legally unrepresented cases occur at District Court level,¹² estimating that “about half of family law cases in the District Court (that is, about one-third of all family law cases in the courts) occur in this way.”¹³ These cases are largely concerned with seeking the protection of the court in the form of barring and protection orders. They usually involve only a brief contact with the family law system and are often undertaken with no prior legal advice.¹⁴

7.10

The study also charts the course of many unrepresented District Court cases, highlighting the important role of District Court clerks.¹⁵ District Court clerks are often asked to initiate proceedings on behalf of unrepresented

applicants. Following a brief interview with the clerk, the applicant may, perhaps within an hour, have a protection application heard in the chambers of the District Judge

7.11

The lack of legal representation or advice in many District Court cases gives added importance to the Family Court Information Centres. However, given that applications for protection in an emergency are likely to continue to be made at District Court level, it is clear that the Information Centres can only partially relieve District Court Clerks from their present informal role. In this context, the role of the District Court Clerk must be clarified. At present, these officers are administrators of court business yet they “often play a significant role in advising those clients who request them to issue proceedings in family law cases on their behalf” but “any advisory function they perform is informal and fleeting rather than a formally defined function.”¹⁶

(b) The role of the solicitor

7.12

As the first port of call for many potential litigants, the solicitor has an important role in encouraging people to pursue alternative means of resolving disputes within this new framework. At the moment, where parties approach a solicitor with a view to instituting or responding to proceedings under the Judicial Separation and Family Law Reform Act, 1989, sections 5 and 6 of that Act require him or her to advise the client of the alternatives to separation proceedings and to assist attempts at reconciliation.¹⁷ Where the applicant and/or the respondent are represented by a solicitor, any application for judicial separation under the Act and any Entry of Appearance or Notice of Intention to Defend such an application must be accompanied by a certificate by the solicitor that he or she has complied with these requirements.¹⁸

7.13

The Law Society's Code of Practice¹⁹ emphasises the importance of the solicitors' role in this regard:

7.14

The Code goes further and sets out the principles upon which solicitors should base their family law practice – principles which are very much in accord with the philosophy underlying this Report. The Code provides, inter alia, that:

(c) The role of the judge

7.15

Judges have also been given a specific statutory role in respect of assisting attempts at reconciliation or attempts to agree a settlement.²⁰ Section 7(1) of the Judicial Separation and Family Law Reform Act, 1989 provides that where an application is made to the court under that Act for a decree of judicial separation,

7.16

Where, in the same circumstances, it appears to the court that no reconciliation of the spouses is possible, the court:

Where the court exercises its powers of adjournment under sub-sections 1 or 3 of section 7, “it may at its discretion advise the spouses concerned to seek the assistance of a third party for the purpose set out in the appropriate subsection.”²²

7.17

We reaffirm our provisional recommendation that in all family proceedings before the Regional Family Court, it should be open to the judge, at any time during those proceedings, to recommend that the parties attempt to resolve any outstanding issue through negotiation or mediation and, in exceptional cases, to require that they attempt to do so, and to grant an adjournment for that purpose.

Pre-Trial Procedures

7.18

In respect of pre-litigation advice, we reiterate that our recommendation envisages requiring parties to attend the Advice Centre to receive information on available alternatives to litigation, on the implications of separation and on court processes as well as case management information and information on available support services. Potential litigants should also be given a brief explanation of

court procedures and the time periods within which the different stages of the proceedings are likely to be completed

7.19

If either party then decides to proceed with an application to court, the principles of case-management which we endorse in Chapter 9 focus on the resolution of procedural difficulties between the parties and the reduction of points of contention. We recommend in that Chapter that a system of case-management should be introduced which will encourage as much agreement as possible between the parties before a matter comes up for full hearing. In addition to the implications such initiatives will have in respect of delay and costs, they will also constitute another method of promoting agreement and minimising hostility by reducing the number of contested administrative and substantive issues between the litigants. Our basic premise is that pre-trial procedures should avoid, where possible, pre-disposing the parties to take confrontational positions which reduce the chances of negotiation and agreement.

7.20

Another pre-trial method of promoting agreement which should be considered is the facilitation of joint applications. The Lord Chancellor's White Paper on divorce law reform in England and Wales²³ is instructive in this regard, in that it proposes that the document required to initiate divorce proceedings, the statement of marital breakdown, should be “capable of being filed by one spouse alone or by both spouses jointly, ....”²⁴ Further, following the required “period of reflection and consideration”, it proposes that the application for either a separation or a divorce:

7.21

Under the existing law in Ireland there are many matters in which joint application will not be appropriate. However, there are some (for example, where an application is made for a judicial separation, with the consent of the respondent, on the basis that the parties have lived apart for one year) in which joint application is appropriate and should be encouraged. We recommend that further consideration be given to the circumstances in which joint applications for matrimonial relief might be facilitated.

CHAPTER 8: PRE-TRIAL PROCEDURES AND CASE MANAGEMENT

Existing Problems

8.01

In its examination of the conduct of court proceedings, two problems identified by the Commission in the Consultation Paper and which were stressed in many submissions are:

8.02

The rules of procedure and pleadings which exist are insufficient in themselves to prevent delay and drift. The problem is well described in a submission made to us:

8.03

It is expected that the establishment of the system proposed by the

Commission in this document (i.e. Family Information Centres, a unified Family Court, and the District Court retaining some jurisdiction etc...) will help to alleviate these problems. In respect of the conduct of litigation, however, we believe that further detailed attention to certain procedural aspects of pre- and in-court activity is required.

Procedural Reform – A Way Forward

8.04

Complementary to the appointment of additional judges, there are other possible initiatives which would help to ensure speed and efficiency and reduce the cost of litigation.

8.05

At present, only a limited practice of case-management exists within the Irish family law system.¹ At Circuit and High Court level, pre-trial activity consists primarily of the exchange of pleadings, applications for orders of discovery, notices for particulars and further particulars, and interrogatories. Further measures may be taken at an informal level between cooperating legal representatives. At District Court level, cases are initiated by summons/application and there is no appearance or defence, with the result that it may not be known until the day of the hearing whether or not the respondent will appear or defend the case. It is possible that a Notice of Particulars could be served but, as it is not required by the Rules, there is no obligation on the receiving party to respond.

8.06

Recent developments in other jurisdictions are instructive. For example, a trend has emerged in the UK,² Australia,³ the US,⁴ and Canada⁵ whereby “case management” procedures have been introduced to speed up proceedings and reduce costs, primarily by distilling the matters in issue at the outset, and by giving the presiding judge “greater control over the preparation for and conduct of hearings than had hitherto been customary.”⁶

8.07

The need for the introduction of formal case-management procedures

throughout the family law system, has been highlighted⁷ and would serve to further alleviate the problems of delay and backlog. The areas in which case management procedures could be effectively introduced may be divided into three:

1. Procedural consolidation

8.08

Calls for the consolidation of pre-trial “administrative” activity have come from a number of quarters.⁸ At present, the separate offices of the District, Circuit and High Courts all deal with family law cases since the family law jurisdiction is fragmented, and the efficient administration of the system is frustrated. Administrative matters which have been identified as problematic include the required duplication of records, delays in transmitting orders and results between courts, the duplication of work and the transfer of files from one court to another. In addition, litigants are required to fill out numerous forms, attend different offices, etc..

8.09

The P.S.E.U. has recommended the establishment of a Family Law Office which

The Union noted that the Courts Officers Act, 1945 provided for the interchangeability of court officers between the various courts.

8.10

Other suggestions to the Commission have included the proposal that the powers of the registrar should be augmented and his or her role expanded to include the tasks of fixing dates and screening cases for hearing (i.e. a pre-trial review function). This pre-trial review function might include the possibility of directions to the parties with respect to counselling or mediation without prejudicing the right of any party of access to the court. It was suggested that,

should a unified Family Court be established, a new office of Master of the Family Court might be created.

2. Time and cost control

8.11

In January 1995, Sir Stephen Brown, President of the Family Division of the English High Court, issued a Practice Direction on case management in family law proceedings.¹⁰ This Direction, which implements an earlier general Direction issued by the Lord Chancellor in respect of all civil litigation¹¹, “shall apply to all family proceedings in the High Court and in all Care Centres, Family Hearing Centres and divorce county courts.”¹²

8.12

The aim of the family law Direction is succinctly set out in the opening paragraphs:

8.13

Central features of the case management system as established by the family law Direction are, first, a system of pre-trial review and, second, increased judicial control of the proceedings (e.g. limitations on the volume of documentation presented to the court and on the length of oral submissions).

Pre-trial review

8.14

The purpose of pre-trial review is the resolution of procedural difficulties between parties and the reduction of points of contention. In addition to the measures outlined in paragraph two above therefore, the Direction requires that an application should be made for pre-trial review of cases estimated to last for five days or more and in which no pre-trial review has been ordered.¹³ A pre-trial review:

8.15

The system of pre-trial review has been a feature of divorce proceedings in the English courts for a number of years and the Family Proceedings Rules empower a judge, inter alia, to give further directions in respect of the conduct of proceedings, including the timetabling, transfer and/or consolidation of proceedings.¹⁵ The Direction confirms the importance of this procedure in all family law cases. Indeed, the system of pre-trial review has been introduced in respect of all civil litigation in England by virtue of the earlier Practice Direction (Civil litigation: Case Management).¹⁶

8.16

An English Rules Committee Working Party, consisting of representatives of the Family Law Bar Association (FLBA), the Solicitors Family Law Association (SFLA), the Law Society's Family Law Committee and the judges of the Family Division, has made recommendations on the rationalisation of the English family law system in the form of a Draft Rule.¹⁷

8.17

The Working Party envisages a type of pre-trial review, called “the First Appointment”, which takes place before a District Judge and at which many preliminary issues are dealt with. Directions are also given at the First Appointment in respect of evidence sought to be adduced by each party and the District Judge fixes dates for further directions appointments, for FDR (described below) appointments and for final hearing. The case may also be adjourned to facilitate out-of-court mediation.¹⁸

8.18

Central to the scheme proposed in the Draft Rule is the Financial Dispute Resolution (FDR) appointment. In the opinion of the Working Party, FDR “is not a head-banging process, but a genuine opportunity to resolve any contentious issues in an atmosphere conducive to settlement with all the known facts and information available.”¹⁹ The appointment would be presided over by a District Judge with “special training for this new process which is neither arbitration, adjudication or mediation ....”²⁰ Given that financial matters occupy a large proportion of court time, the Working Party was of the view that a pre-trial review system which incorporates an FDR element is essential.

8.19

The Working Party also recommends two exchanges of documents.

Paragraph 2 of the Draft Rule would require that within twenty-one days of the filing of an application for ancillary relief, parties would “each file with the Court and simultaneously exchange with the other party a statement signed by him [or her]” containing quite detailed information.²¹ Paragraph 4 foresees the filing in court and the service on the other party of three documents “not later than seven days before the hearing of the first appointment”. These documents are:

8.20

Both models – that under the civil litigation Direction and that proposed by the Working Party – would appear to be more concise than the affidavits and particulars currently required by the Irish system.

8.21

There are also examples of pre-trial reviews in other jurisdictions. The Family Court of Australia Case Management Guidelines²² set out quite a complex system of case management. Cases are classified as “short”, “general” and “long” at the first direction hearing “on the basis that the hearing of a matter is estimated to take 1 day or less, in excess of 1 day but no more than 4 days, and more than 4 days respectively ....”²³ This classification may be reviewed as the case proceeds. “Time standards” are laid down which “apply to the completion of key stages of the litigation process”²⁴ and which registries are expected to meet. The system established under the Guidelines comprises the following stages: the filing of an application, attendance at information sessions²⁵, directions hearings²⁶, pre-hearing conference²⁷, and the hearing. Depending on the nature of the case, pre-filing counselling²⁸ and conciliation conferences²⁹ may also be required.

8.22

Directions hearings under the Australian system are “usually the first occasion on which proceedings come before the court.”³⁰ All parties and their legal representatives are required to attend³¹, and the latter must “[have] the conduct of the matter or [be] otherwise fully conversant with the matter.”³² The function of the hearing is to facilitate settlement negotiations and to enable the parties:

Directions hearings are not required in urgent or interim matters.

8.23

Where Rules of Court have not been observed, the matter will be adjourned to a later date to ensure compliance with any directions made at the hearing.³⁴ Adjournments will usually be granted “to extend or adjourn the directions hearing date by consent to enable conciliation options to explored fully.”³⁵ Where the court considers that a party or solicitor “has not pursued or defended the application with due diligence”³⁶ it may:

8.24

Between two and three weeks following the directions hearing, a pre-hearing conference (PHC) will be held in respect of all unresolved undefended matters.³⁸ The Guidelines require that “[a]ll reasonable avenues of conciliation and/or mediation are to be exhausted”³⁹ and all interlocutory orders should be completed before the PHC.⁴⁰ All parties must attend, unless they can show reasonable cause for non-attendance, and legal representatives must also be present.⁴¹ Generally, all parties are required to file and serve a list of pleadings and affidavits which are to be relied upon not later than one clear working day before the conference.

8.25

At the conference, the legal representatives must be able to inform the registrar as to, inter alia, the nature of the relief sought, the issues of fact and law involved, the number of expert witnesses to be called and their availability, and the prospect or likelihood of settlement as well as “any other matter which might affect the readiness for trial or scheduling for trial....”⁴² The registrar will then set a “not before” date for hearing and, in consultation with legal representatives, may issue directions “prescribing a timetable in respect of matters which may

affect the readiness for trial”.⁴³

8.26

Guideline 11.9 provides that “[a]pproximately 21 days prior to the trial date the list clerk will telephone the legal representatives and confirm that they have complied with the directions made at the PHC”. Where there has been non-compliance, the list clerk will schedule a “compliance conference” in an attempt to ascertain whether the matter will be ready to proceed at the appointed date. If it will not be ready, the matter will be listed for further directions following consultation with the list judge.

In this way, strict control is maintained on the conduct of cases and every effort is made to ensure that cases proceed in accordance with the time standards laid down in the Guidelines.⁴⁴ To facilitate this, the Guidelines provide a system whereby at every juncture legal representatives are required to report to the court on the progress of the case preparations and to identify any possible impediments to compliance with the relevant time standard.

8.27

The idea of pre-trial reviews has been supported in submissions made to us. However, one view expressed is that such reviews are more likely to be effective if presided over by an experienced and respected judge rather than a Court Officer. If legal practitioners are to be persuaded to depart from existing practices and routines and to set aside their anxiety to exploit interlocutory proceedings in the interests of their clients, proposals made in pre-trial reviews should ideally come from a person who is respected by the litigants as one who is thoroughly familiar with the difficulties which arise in such cases.

Judicial control of proceedings

8.28

As well as establishing a Pre-Trial Review procedure, the English family law Direction increases the level of judicial control over the volume of documentation and evidence and the length of submissions presented to the court. In ancillary applications, parties and their advisors are required to “use their best endeavours: (a) to confine the issues and the evidence called to what was reasonably considered to be essential for the proper presentation of their case; (b) to reduce or eliminate issues for expert evidence; (c) in advance of the hearing to agree which were the issues or the main issues.”⁴⁵

8.29

Furthermore, “whenever practicable and in any matter estimated to last five days or more” each party is required to lodge in court and deliver to other parties “a chronology and skeleton argument concisely summarising that party's submissions in relation to each of the issues, and citing the main authorities relied upon. It is important that skeleton arguments should be brief”.⁴⁶ This should be effected not less than 2 clear days before the hearing of a case.

8.30

In respect of non-family law civil litigation, the Practice Direction on civil litigation and case management provides that, unless otherwise ordered by the court, each party must lodge with the listing officer (or equivalent) of the court “a completed pre-trial check-list” in the form annexed to that Direction.⁴⁷ This checklist must contain information regarding the setting-down of the action, the pleadings, interrogatories, evidence, discovery and preparation of documents, pre-trial review, estimated length of trial and attempts to resolve the dispute by alternative forms of dispute resolution. This document must be lodged in court and delivered to the other parties “no later than two months before the date of trial”.⁴⁸ There is no comparable document in the Irish system,⁴⁹ although a practice does exist in respect of a number of categories of High Court actions whereby counsel must certify that cases are ready for trial before they can be put into a list to fix dates.

8.31

In summary, therefore, the emphasis in the English system is on economy and speed, effected by pre-trial reviews, exchange of information, the distillation of contentious issues and the limitation of discovery, oral submissions and examination and cross-examination.

8.32

The Draft Rule drawn up by the Working Party also emphasises the pre-trial exchange of information and documents in the context of applications for ancillary relief.⁵⁰ Conscious of the fact that “[a] common feature of many .. [ancillary relief] cases is that they settle at the door of the court”⁵¹ leading to a waste of legal costs and judicial time (the latter being a waste of public resources), the Working Party envisages that, under the New Rules, costs could be saved in the following ways:

Case listing

8.33

Another method of controlling court time is through an effective and flexible case-listing process. While case management measures should generally reduce the number of cases where adjournments are sought for want of readiness or which settle “at the door of the court”, attention should nevertheless be directed at possible amendments to the present listing system.

8.34

In the Consultation Paper, we implicitly recognised the merit of Judge Costello's 1993 Practice Direction on family law cases before the High Court and the benefits of the advance listing of cases.⁵³

8.35

The Dublin Circuit Family Court Practice Direction 1994 also attempts to deal with problems caused by cases settling just before the hearing by requiring certification of readiness to proceed, but this is an isolated example⁵⁴ and does not appear to be strictly enforced.

8.36

With the exception of the Booth preliminary report⁵⁵, very little direct attention has been given to this aspect of court procedure in English and Welsh case management initiatives or studies. The Booth Report describes the unhappy lot of the listing officer⁵⁶ and emphasises the inaccuracy of time estimates of cases provided to them by both the judiciary and the legal profession.⁵⁷ The latter problem “can only be remedied if time estimates are accurate and this can only be achieved if timetabling and directions are tighter and, wherever possible, pre-trial reviews take place.”⁵⁸ According to one commentator, the Booth report envisages that pre-trial reviews should be held “in sufficient time before the date set for the hearing to enable the listing officer to use any time saved.”⁵⁹

8.37

The Australian Family Court Case Management Guidelines⁶⁰ devotes considerably more attention to this matter. Part II.B requires judge administrators to designate a list judge to “monitor the progress of contested

matters set for hearing and ensure that the goal of commencement of hearings on the scheduled date is met in most cases.”⁶¹ The regional registrar is required to appoint a list registrar in each registry whose function is to “supervise the Pending Cases List and the listing of matters for hearing” and otherwise to liaise with the list judge and to manage and co-ordinate the operation of the lists.⁶² Part II.B of the Guidelines also provides for the appointment of a list clerk “to be responsible for the allocation of trial dates and ... to liaise with the list judge and list registrar in respect of the management of the defended lists.”⁶³

8.38

The Australian system divides cases awaiting hearing into a number of lists: the Pending Cases List, Dissolution Lists⁶⁴, Enforcement Lists⁶⁵, the Duty List, the Judicial Duty List and Judge Specific Lists. Guideline 12 sets out a “uniform listing system and standardised listing practices [to] ... be adopted in the court”.⁶⁶

8.39

The Pending Cases List comprises all cases which proceed beyond the first directions hearing, and functions as “a queuing device which ensures that the progress of all cases is supervised and that matters are dealt with in priority order.”⁶⁷

8.40

The Registrar Duty Lists are conducted by registrars and deal with directions hearings, interlocutory matters, unopposed adjournments and consent “final” orders which have been reduced to writing.⁶⁸ Matters transferred from this list to the Judicial Duty List “will be accompanied by a sheet completed by the representatives which deals with time estimates and contentious issues” in a prescribed format.

8.41

The Judicial Duty Lists deal with interlocutory matters ancillary to the main proceedings. They are “conducted by judges and judicial registrars wherein urgent and interlocutory relief is sought in respect of issues which are outside the jurisdiction of a registrar.”⁶⁹ Guideline 5.2 includes consent orders, unopposed matters, short opposed matters (20 minutes) and opposed matters within the “remit” of these Lists, and the Duty Judge hearing matters listed before him or her will not necessarily be the judge who has carriage of the case in general. Any matters in which directions are required may be transferred back to the registrars Duty Lists.⁷⁰

8.42

Guideline 12 comes into operation only when the conciliation processes required under the Guidelines have failed to achieve a resolution of all the issues between the parties. In this situation, a “fully defended hearing” is necessary. Under Guideline 12(i) defended matters are set down in individual judge lists (“Judge Specific Lists”) and each matter is assigned to a judge who will deal with all the issues involved in the case unless the matter is formally re-assigned to another judge.

Costs

8.43

All the above-mentioned measures, by reducing the amount of time spent in the courtroom, also have an impact on the costs of litigation, although it should be remembered that pre-trial hearings themselves will have cost implications. In addition, however, there has been a positive move in respect of the issue of costs in England. The family law Direction dictates that “[f]ailure by practitioners to conduct cases economically would be visited by appropriate orders for costs, including wasted costs orders.”⁷¹ Further, where documents were not prepared for the court in the manner required under paragraph 5 of the Practice Direction⁷², i.e. where they were “copied unnecessarily or bundled incompetently”, the cost incurred would be disallowed.⁷³ The Rules Committee Working Party also specifically addresses the issue of costs. In an effort to maintain control on costs, the Working Party recommends that “[a]t each court hearing each party shall produce to the court a written estimate of the solicitor and own client costs hitherto incurred on his behalf.”⁷⁴

8.44

The introduction of similar case-management procedures in this jurisdiction would not be a completely new departure. Informal “case-management”-type procedures exist between co-operating legal representatives, and the expansion of the role of the registrar in the small claims court⁷⁵ could be regarded as an example of a prototype kind of case-management system.⁷⁶

8.45

An editorial in The Law Society's Gazette⁷⁷ concerned with the question of the efficiency of the courts system in general suggested that:

The editorial urged the Superior Courts Rules Committee to examine the English family law Practice Direction and to incorporate it as appropriate into our own procedures.⁷⁹

8.46

The Family Court of Australia Case Management Guidelines also address the issue of costs. In Part I, the Statement of Case Management Principles, it is stated that the Court has “a responsibility and a duty to those who approach it to facilitate the just resolution of disputes in a manner which is prompt and economical.”⁸⁰ To this end, solicitors are required to deliver to their client(s) at various stages memoranda in writing setting out approximate costs of the client to date and estimated future costs.⁸¹ Furthermore, if, at a directions hearing, the court is of the opinion that a party or a solicitor “has not pursued or defended the application with due diligence” the court may, inter alia, make an order for costs.⁸²

3. Rationalisation of documentation

8.47

In the Consultation Paper,⁸³ the documentation required to commence family proceedings in the District, Circuit and High Courts was examined. It was recognised that the method of pleadings in the High Court “could be improved by the adoption of clear and concise language in the initial form” with clear instructions as to remedy being sought and the relevant procedural steps, with the result that “the inclusion of inflammatory material may be avoided.”⁸⁴ It was also noted that, in respect of the High Court Family Summons, “the new Rules with regard to the form of affidavits have resulted in affidavits becoming very long, in that they tend to refer to every possible legal and factual permutation – even matters which will not usually be considered at the trial.”⁸⁵

8.48

In respect of the documentation used in family litigation, there are two issues to be addressed – volume and format.

(i) Volume

8.49

The reduction of the volume of documentation presented to the Court,

and the consequent reduction in delay, is an issue in need of consideration. The English family law Direction is again instructive,⁸⁶ granting the court a discretion to limit the issues upon which it wishes to be addressed.⁸⁷ The form in which documentation is to be presented to the court is clearly laid down⁸⁸, and the system of pre-trial review distils the issues at an early stage.⁸⁹ Further, a chronology and brief skeleton argument must be submitted to the court and delivered to any other parties “not less than two clear days before the hearing”, “summarising that party's submissions in relation to each of the issues and citing the main authorities relied upon.”⁹⁰ In ancillary applications parties and their legal representatives are required “to confine the issues and the evidence called to what was reasonably considered to be essential for the proper presentation of their case”.⁹¹

8.50

The English Rules Committee Working Party, in its Draft Rule, also recommends limiting discovery in respect of ancillary relief applications.⁹²

(ii) Format

8.51

In the Consultation Paper, attention was drawn to the confusion caused by the format of court documents.⁹³ Reference was made to the view of the Joint Oireachtas Committee on Marriage Breakdown (1985), that court documents used in family law cases are “generally complex and intimidating in nature ... using a type of language and format which is offputting and unintelligible to most people.”⁹⁴

8.52

In summary, our provisional recommendations were:

8.53

In relation to the High Court, it was noted that: