Dr. Carol Coulter:

I am grateful to the joint committee for the opportunity to address it. My experience of the family courts is twofold. I ran a project for the Courts Service between 2007 and 2008, reporting on private family law cases. For the past six years I have been running the Child Care Law Reporting Project which reports on public family law cases. It is important to emphasise the distinction between private and public family law. There is a big difference in rights and what is at stake, particularly in the balance of power between the participants. In public family law cases the State, through the Child and Family Agency, seeks orders to take a child away from his or her family into care for a period that can last for the whole of his or her childhood. That is a very important and awesome power that the courts have.

I am focusing on how public family law cases are dealt with in the courts. The District Court has jurisdiction to make care, supervision and related orders in respect of children. I have had an opportunity to read what previous speakers said to the committee about the structure of the courts. In particular, I fully endorse what Dr. Conor O’Mahony of UCC and representatives of the Law Society of Ireland said about the structure of the courts and the urgent need to establish a family court. Next Monday we will publish a report on childcare hearings in the District Court, based on having attended 35 District Courts throughout the country in all districts. We found overcrowding, a lack of privacy, lengthy lists and overworked judges in most of the courts attended.

In some of these courts childcare cases were on a mixed list with criminal, civil, private family law and childcare cases. In most, the childcare cases featured in a general family law list which could be very long, up to 100 cases on a single day, and people can be waiting all day for their case to be heard.

The establishment of a family court division of the existing courts, with specialist judges trained in family law and allocated to these courts for a period of two to four years, and with appropriate support facilities to allow for proper management of cases, would address many of the problems in family law. I would suggest between 12 and 15 dedicated regional centres, where there could be easy access for wheelchairs and buggies, adequate consultation rooms, a comfortable waiting area with a separate room for vulnerable witnesses and children, and basic facilities like drinking water and a vending machine. It is not beyond our capacity to produce that for the courts and no constitutional amendment is necessary to do this. Some improvements could be carried out to the existing system and we made certain recommendations in a report published in 2018. I believe, however, that they would essentially be a sticking plaster. It is essential to have a new structure of the courts to ensure they can deal adequately with family law.

I now turn to alternative dispute resolution. It is, of course, desirable to keep family disputes out of court as far as possible and alternative dispute resolution offers a useful alternative. It is important to make a distinction between private family law between two individuals and public family law. Public family law is not as suitable a vehicle for alternative dispute resolution as is private family law because in public family law the State is on one side and the family on the other, which could be a very vulnerable family. Many of the people who come before the courts with a childcare case have a lot of problems. They are almost invariably poor, they sometimes suffer from cognitive disabilities or mental health problems and that is not an evenly balanced situation when they are up against the State. It is very important that their procedural rights are protected and this is done by our courts, including the right to legal representation. Usually the District Court insists that there is legal representation, which is normally provided by the Legal Aid Board to families who are facing childcare proceedings. Most of the judges will not hear a case unless people have at least had the opportunity to obtain legal representation.

There are areas in child protection where alternative dispute resolution can be appropriate particularly in the following disputes: access when the children are in care; decisions about education of the children or around going on holidays; for psychological and medical assessments of the child; and so on. People should not have to go back to court to get those kinds of issues dealt with. It would be much more appropriate and suitable for that to take place in a less stressed environment.

On the conduct of proceedings, most of the family law proceedings in the District Court are quite formal because they are often conducted on lists with other cases. The usual format is followed with the applicant and their lawyers on one side facing the judge with the respondents' lawyers on another. The witnesses and the parents sit behind them. This can often be intimidating and confusing for some of the litigants. A specialist family court with dedicated childcare days should be scope for a greater degree of informality, with parents, lawyers and witnesses sitting around a table with the judge and attempting to resolve the issues. This format exists in the children’s court, which deals with children who are accused of a crime. It would be a more family friendly environment.

With regard to the voice of the child, generally the children do not appear in the family courts. Mechanisms need to be found whereby their voices are heard. Some of the previous speakers have drawn attention to the limitations of the existing provisions for hearing the voice of the child. We would endorse these views. I also draw attention to a provision in the Child Care Act 1991, which governs child protection proceedings. This allows for a solicitor to be appointed by the court to represent the child in the proceedings. This is rarely used, and then usually only when a guardian ad litemis the person who represents the voice of the child. It is common in other jurisdictions such as Scotland and Germany, for example, for a lawyer to be appointed to represent children who are very young, from as young as two years old in Germany. I am not saying that we in Ireland have the lawyers who have the necessary skills at this stage but I believe that having a lawyer instructed to represent the voice of the child - who is appropriately trained to received such instruction - should be part of a suite of measures to represent the voice of the child. Not all of the provision should be based on children having a guardian ad litem, which is currently provided for and about to be provided for in new legislation.

On the in camerarule, Ireland has two parallel regimes for reporting on family law proceedings. Following legislation introduced first by the then Minister for Justice and Equality, Michael McDowell, a new law was introduced by the former Minister, Alan Shatter, in 2013. The first provides for a variety of nominated bodies to attend family law proceedings and to report. Provided that people are appropriately nominated, and provided of course that the anonymity of all the parties is protected, it is not restrictive as to what reporting can take place. In 2013 the law was changed to permit members of the media to also attend and report on family law proceedings. This contains a number of restrictions as to what can be reported. I believe that the restrictions are listed in such a way that it makes it very difficult for the media to report because the penalties for breaching some of those provisions are very severe: up to a €50,000 fine, three years in jail, or both. Very few of the media organisations, or none that I am aware of, have the resources to report comprehensively on family law. There has been relatively little reporting by the media of family law, despite the introduction of that legislation in 2013.

Another possibility for getting further information about family law is through published judgments from the Judiciary. The majority of family law is heard in the District Court. Given the heavy workload of the Judiciary it is very difficult to see how they could provide written judgments in most family law cases, and no resources exist in the Courts Service to provide for the redaction of the judgments that would have to happen in order to remove all possibly identifying information. There are a limited number of written judgments on childcare from the District Court published on the Courts Service website. I am aware that there is a far larger number available but they cannot yet be published because they have not been redacted and the resources are not there for redaction.

The only way to ensure balanced and systematic reporting of all family law proceedings is by way of a dedicated reporting body that can attend a representative sample of cases, staying with complex cases through repeated adjournments and publishing the exchanges between the parties’ lawyers, judges and witnesses, as well as the court’s conclusions. Such a body can and should apply a protocol that ensures the protection of the anonymity of the parties, and filter out any identifying information before it reaches the public domain. The Child Care Law Reporting Project has a protocol, published on our website, which specifies the kind of information that should never be published to ensure there is no identification.

I now turn to the rights of fathers. This issue arises mainly regarding private family law proceedings. In public childcare proceedings fathers can be, and sometimes are, named as respondents in the case. Data collected by the Child Care Law Reporting Project show that the majority of child protection cases involve only one parent, usually the mother, parenting alone, with limited or no involvement of the father. Where the father is the respondent some judges have made rulings requiring the Child and Family Agency, CFA, to prove that both the father and the mother are unable to safely parent a child before making a care order, and have directed the CFA to support a father in caring for a child, where he is the legal guardian.

We have seen cases where the father is not the legal guardian and the court is not able to make such an order. In other cases, however, the proceedings have tended to focus on the mother with little involvement from the father.

The issue of legal representation arises here because some fathers may not be able to avail of legal representation if they are above the means threshold, which is limited. In respect of private family law proceedings, in my 2008 report for the Courts Service I found there was a specific inequity towards certain fathers due to the operation of the civil legal aid scheme. It is strictly means tested and a situation often arose where a working father earning a modest wage was above the means threshold for legal aid while his wife, if she was a mother, would typically not be working or working part-time, and would fall under the means threshold. If the relationship broke down, therefore, she would be eligible for legal aid but he would not. That gives rise to an inequality of arms in legal proceedings and is clearly unfair. A solution to this would be to remove or significantly increase the means threshold, while asking for a means related contribution from litigants, so a person on an average income could avail of the civil legal aid scheme and contribute according to his or her means.

My colleague, Maria Corbett, and I will be happy to answer any questions the committee may have. I have left three reports with the clerk, which go into more detail on some points. In particular, Ms Corbett can address specific issues relating to the impact of Brexit on child protection proceedings. We are concerned about that matter and, although it is not on the committee's agenda now, we would very much like to draw its attention to it.