"Members of the judiciary, ladies and gentlemen, I am very pleased to be here this morning for this important conference. My thanks to the Law Society for once again providing us with these magnificent facilities and to Professor Ursula Kilkelly and our expert speakers for giving up their Saturday morning. I am particularly honoured that Ms. Justice Judith Ryan from the Family Court of Australia has been able to join us and I want to start by apologising to her and indeed to all of you for the clash of this morning’s fixture with another important deciding event in Sydney.
I know many of you attended the consultative seminar I hosted here in March on the proposals for a Referendum to establish a Court of Appeal. As you are aware, the Government will shortly publish the necessary Constitutional Amendment Bill with a view to the proposal being put to the People in a Referendum this autumn. I expect the necessary legislation to progress in the Oireachtas during the coming weeks. The proposals were significantly enhanced by inputs from those present here at the March seminar. It is my hope that our discussion here today will be similarly fruitful.
As you know, this subject is close to my heart. It has, for many years, been my view that Ireland should have a dedicated and integrated Family Court structure that is properly resourced to meet the particular needs of people at a vulnerable time in their lives. Although everyone working within the current structure is doing their very best, it is far from ideal. My view of this is not unique. The Law Reform Commission, in its report on Family Courts, described a system with chronic problems as follows:
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.
I hope you will indulge me in that lengthy quotation but, as most of you know, that LRC report was published in 1996. Despite no doubt good intentions and some measures being introduced, the situation has not greatly improved. One of the principal developments is that family law has become ever more extensive and complex. The introduction of the Civil Partnership Act 2011 and the Adoption Act 2010, replacing and updating adoption law dating from the 1950s, are both much needed and very welcome initiatives but they have brought more challenges to an already complex and hard pressed area.
The absolute nature of the in camera rule has led to a situation that family law cases are perceived to be shrouded in secrecy. There is no press reporting of these proceedings because the press access to them is prohibited. Accordingly, aside from the valuable work of the Family Law Reporting Project from 2006 to 2008, there has been an absence of reliable information on the operation of the law in this area which is not conducive to confidence in our system of family law and child protection. The objective of the abolition of the rigid in camera rule in the Courts and Civil Law (Miscellaneous Provisions) Bill which has passed all stages in Seanad Eireann and is currently before the Dáil is to balance the need for privacy with the need for public access to important information on the operation of family and child care proceedings in our courts. The measure aims to retain protections on the privacy of the parties in respect of such court proceedings while providing that bona fide members of the press can be admitted to the proceedings.
The coverage that will be possible may help to concentrate public opinion on what we who have practiced family law already agree upon. Urgent change is necessary. That is why a commitment was included in the Programme for Government to "introduce a Constitutional Amendment to allow for the establishment of a distinct and separate system of family courts to streamline family law court processes and make them more efficient and less costly."
As you know, the Government took a decision in principle, in July last year, to progress to hold a Referendum and the original aim was to hold the necessary poll together with the proposal to establish a Court of Appeal. I was, however, anxious to ensure that there was a broad consultative process so the original timeframe was not achievable. The intention now is that the Referendum to establish a new Family Court will be held in the course of 2014.
What I hope to achieve today is very much an exercise in active listening and learning. There are a number of interesting issues for consideration in deciding on the structure of the proposed Amendment itself and the framework for the new court as well as the enabling legislation to make all this happen. I hope through our speakers, and especially through the panel discussion, we will be able to develop some interesting food for thought on how these might be approached.
Proposed New Structure
Structurally, what I envisage is a two-tier court comprising of a lower Family Court with limited jurisdiction and a higher Court with unlimited jurisdiction, both staffed with specialist judges. The lower Court would exercise the family law jurisdiction and the jurisdiction in child care matters presently vested in the District Court. It may be possible to assign jurisdiction to this lower court to deal with orders on consent where no dispute exists relating to the upbringing and best interests of children and where financial matters have been agreed in judicial separation or divorce proceedings for the adducing of the necessary formal evidence for the making of required court orders. Particular issues may arise as to the construction of that Court, in particular when dealing with guardianship, custody and access disputes between estranged spouses and parents, or child care and protection matters, to provide for a less adversarial approach. The Court of unlimited jurisdiction would essentially have vested in it all current Circuit and High Court jurisdiction in family matters including adoption and child abduction.
In this context, an issue arises with regard to the determination by the new higher court or by the existing High Court of constitutional challenges or constitutional issues relating to family law matters to which not only Articles 41, 42 and 42A of the Constitution apply but to which articles such as Article 40 are of relevance and to which provisions contained in the European Convention on Human Rights and Fundamental Freedoms are also relevant.
As I indicated earlier, the proposal is that this new court would be exclusively presided over by a dedicated judiciary, specialised and expert in family law. I realise this, for some, is a controversial proposal but I feel strongly that it is a necessary measure. There are few who have experience of family law hearings who would argue that every party in a family law case is always dealt with in a satisfactory and sensitive manner by all members of the judiciary. Just because a person has been a solicitor or a member of the Bar in practice for the minimum 10 years required to be appointed as a judge it does not mean that he or she has necessarily amassed the insight, qualities and expertise necessary to deal with all cases. Family breakdown and parenting disputes are particularly sensitive and painful areas and their determination involves completely different skills from those required to hear a criminal trial or adjudicate in civil and commercial matters. The temperament and common sense of judges sitting in the new family court will be as crucial as their fund of legal knowledge.
A related area which was touched upon at the recent Law Society Conference in Killarney is whether the professional legal bodies, or perhaps third level law schools, might consider providing judicial training courses on a variety of different topics, including family law. At present no such formal training is available to lawyers prior to their appointment to the Bench other than what they observe and experience in their years of practice. A form of multi-disciplinary training need not be exclusively for those who aspire to judicial office but might be useful for lawyers with such ambition and none. It would produce a cohort of lawyers with the necessary expertise and skills and also help them to better understand the challenges that judges face.
Once appointed as a family law judge, should the judge remain within that stream or be able to transfer or apply to the other courts? What would be an appropriate number of years before this could happen or is it appropriate at all? I think the Australian experience in this area will give us some additional insight.
Other questions arise in relation to the transition arrangements from the current structures to a specialist court. A particularly interesting area is how to handle appeals. The straightforward appeal would be from the lower court to the higher court. Another option is that appeals might be dealt with by another division of the family court rather than all appeals, even on minor matters, being referred to the higher court for adjudication. At present an appeal from a family law matter initially dealt with in the District Court involves a full rehearing in the Circuit Court. Should all family court appeals, whether from the lower or higher tier court, in the future be based on transcripts which would reduce delays and avoid unnecessary duplication of costs?
It is envisaged that appeals from the family court of unlimited jurisdiction would be heard before the new proposed Court of Appeal and that the same rules will apply to any possible Supreme Court appeal from that court as will be prescribed in the new proposed Constitutional Article to be shortly published and applicable to all other Supreme Court matters in the future. Consideration could be given to cases of exceptional urgency going directly by way of appeal to the Supreme Court, where it is in the interests of justice that such appeal be heard by the Supreme Court or where there is an issue of general public importance. An interesting question is whether an appeal on a point of law or a case stated from the lower tier court should be routed simply to the family court of unlimited jurisdiction or to the Court of Appeal? There is the question of how to ensure that the particular specialist ethos of the Family Courts is maintained where cases are appealed from the proposed higher court to the new Court of Appeal and I am interested in hearing views on this, and of course in learning from the Australian experience.
In terms of the structure of the court itself, ideally this would be entirely separate with separate venues, adequate private consultation rooms and a co-located welfare and assessment service to support both public and private law proceedings together with in-court mediation facilities. I have to concede in the current climate it may take some years to achieve all of those objectives. But my clear aim is to strive for the excellence we are familiar with in other jurisdictions.
A further issue of interest relates to the pre-trial role that judges in the family court may play. For example, should there be a greater emphasis in judicial engagement in seeking to effect a resolution of family disputes through pre-trial conferencing where such conference is chaired by a judge of either tier of the family court? Should judges appointed to the court be trained in family mediation and use acquired mediation skills to assist in the resolution of disputed issues at such conferencing? Should a different judge engage in such conferencing to a judge who might be required to adjudicate on all or a portion of a family dispute? I hope that we can today explore all of these issues and any others our speakers and those of you present consider relevant.
The Governments commitment to the establishment of an entirely separate structure for the family courts is a proposal which, in 1996, the Law Reform Commission described as radical and over-ambitious. It is, however, a structure that has been successfully put in place in a variety of different jurisdictions. I believe our objective should be to lay the foundations for creating the best structure possible that is in the public interest, in the interests of those who seek court assistance to resolve family conflict and, more importantly, is in the best interests of children whose futures have to be determined by our courts. There has been very limited progress in this area in the 17 years since publication of the Law Reform Commission’s report of 1996 and I believe it is incumbent on us to be ambitious. Families in crisis, children whose welfare and development are a matter of controversy and children in need of care and protection deserve no less.
I look forward to a productive discussion. Thank you."