Dr. Conor O'Mahony:

I thank the committee for the invitation. My statement will focus on two of the issues which were suggested for discussion, namely, the obligation to ascertain the views of children and the structure of the court system. As I will explain, I consider these two issues closely connected. As a question of policy, the obligation to ascertain the views of children during family law proceedings has been settled. It is a matter of international human rights law to which Ireland has subscribed and a matter of Irish constitutional law.

Article 42A of the Constitution requires that in family law cases the views of all children who are capable of forming views shall be ascertained and given due weight in accordance with the age and maturity of the child. That initial question has been settled. However, Article 42A is not self-executing; its implementation is dependent on legislation. Unfortunately, since Article 42A came into effect in 2015, the legislative response of the Oireachtas has been rather timid. Article 42A is mandatory. It requires that every child who is capable of forming views shall have his or her views ascertained in family law proceedings. However, when we look at the family law legislation which implements it, we have an uneven and patchwork approach to the question of whether children get to participate in family law proceedings. Different rules are applicable in different family law cases and they often afford significant discretion to courts in deciding whether to ascertain the views of children. Essentially, whether a child is afforded the opportunity to be heard depends on what the case is about, where it is being heard, which judge is hearing it and who is paying the costs. That is a far cry from what the Constitution states should happen. In my written submission I itemise the form that this difficulty takes in various areas, including child protection cases, private family law cases, international child abduction cases and adoption cases. The issues revolve around the question of how much discretion courts have to decide whether they should hear from children, as well as the question of who pays the cost in appointing a guardian ad litemor expert to convey the views of the child.

It is clear that we need to engage in significant legislative reform across the wide spectrum of family law cases to ensure the legislative provisions match the constitutional obligation in Article 42A. While legislative reform is a necessary step, alone it is not sufficient. Another significant obstacle to effective child participation is the lack of child-friendliness in the courts. We have significant evidence, some of which I cite in my written submission, that the environment in the courts is not child friendly and acts as a significant barrier to child participation. Legislative reform on the mechanisms used to hear children is likely to encounter an implementation gap, unless we also address the structure of the courts. There have been multiple calls for the establishment of specialist family courts in Ireland for a long time now, dating back to a detailed Law Reform Commission report in 1996. The commission identified multiple problems related to inadequate physical facilities, the absence of specially trained judges, the inconsistency between courts in decision-making and excessive caseloads. The commission made a series of recommendations which, in their totality, moved in the direction of establishing specialist family courts. The recommendations have not been implemented and in the years since there have been multiple calls for their implementation, including by the Law Society of Ireland, the Government's special rapporteur on child protection, Dr. Geoffrey Shannon, Dr. Carol Coulter and the Child Care Law Reporting Project and the UCC child care proceedings research group, of which I was a member.

More broadly, the trend in Europe is towards specialisation in the area of family law among judges and courts. Separation is not so much the key; rather, specialisation is. Having a separate court does not work, unless there is also specialisation among judges and staff within that court. We have evidence from Australia which illustrates that if family courts are staffed by judges who are not specially trained in child and family law, their effectiveness is limited. Conversely, however, there does need to be separation in that the scope of what can be achieved within the general court system is somewhat limited. Judges who also deal with other kinds of case are not incentivised to significantly up-skill in the area of child and family law. In many jurisdictions child and family law has a history of being the poor relation when it comes to resource allocation in respect of court time, physical facilities and so on. Separation is also important in that respect. Some issues would need to be considered in achieving this outside major population centres. It is easier to do it in Dublin or Cork than in rural areas. There are models from other jurisdictions such as Queensland where a mix of regional centres has been established and there are travelling judges. There are references to it in my written submission.

The final point I wish to make is that the establishment of a specialist family court does not require a constitutional amendment, as has been suggested on various occasions. The designation of the District Court as the Children Court for dealing with juvenile justice matters under the Children Act 2001, as well as other examples, make it clear that it is possible to do this by way of ordinary legislation which could specify the characteristics of a specialist court.

There is more detail on all of these points in my written submission. I will be very happy to take questions later.