Dr. Róisín O'Shea:

Somehow this conversation always starts at the wrong end of the pipeline - in the courtroom. If I am injured in a car crash, I am brought straight to the emergency department, ED. We need a family ED with fast, effective supports. If the new norm was to first step into a wrap-around multi-disciplinary early intervention ED with mediation at its core, and with the ability to go straight to court in certain circumstances, we would solve the main problems of congestion, delay, significant cost and the destructive escalation of conflict over time.

How do we do this? Much of my detailed submission to the committee arises from my 2014 PhD thesis, a three-year empirical study of 1,200 cases in the Circuit Court all over Ireland, which was funded by the Irish Research Council. We do not need to reinvent the wheel; we need to grab and adapt the most effective solutions from other jurisdictions and adapt them for the Irish landscape. In the District Court, I found that family law litigants experience two different worlds. There are still impossibly long lists in the provincial courts. However, litigants in Dolphin House, by contrast, benefit from a brilliant innovative system implemented by Eoin Manning and now operated by Eamonn Doherty, where almost 95% of the litigants are now self-representing. Judges who have a strong commitment to the area have developed a quasi-mediation or inquisitorial approach, which reduces conflict in the courtroom. Judge Gerard Furlong is the lead innovator in this area and he shows an extraordinary empathy, understanding and patience, while implementing the law fairly. Right now, we should start to work with what we have. People cannot wait for shiny new buildings or for reform of a system that is not fit for the users of that system. I am all about the users and I am about solutions.

We should start with families experiencing financial hardship. The State should offer two access points for fast intervention. Path A would leverage existing State resources, in the community, at local level, and start diverting people away from the courtroom. I am involved in a research project with Waterford Institute of Technology, WIT. Our family mediation project is now available across the south of Dublin city in four family resource centres, FRCs - Quarryvale, Killinarden, St Kevin’s in Kilnamanagh, and Ballyboden. Mediation is provided by a team of volunteer mediators from the not-for-profit Dublin Community Mediation. Appointments are available in ten days. The services is means tested; there is a flat hourly rate of €25, which can be waived in cases of financial hardship. It is child-inclusive mediation. Cases are co-mediated and bi-gender. It is court-linked. Issues that can be mediated are guardianship, custody, access and maintenance. The mediator assists the parents and children to access the wide range of supports available in the FRCs, including counselling, play therapy, parenting courses, support groups, and referrals for mental health or addiction issues, which crop up in many of the cases we are dealing with. The mediator can signpost additional resources such as the Money Advice and Budgeting Service, MABS, free legal advice centres, FLAC, and Citizens Information Board.

On path B, the State family mediation service could then be freed up to focus on separation and divorce. There needs to be a form of means testing. The service is currently free and that is not working; the lists are too long. Means testing would mean these State resources would be targeted at the users who need them most. A less complicated means testing approach could be used. Our research project has developed such an approach and gave it to the AALS family mediation project at Denver university, which is running it at the moment. This two-level offering by the State, for the users that need it most, at local level and through the Legal Aid Board, would slash waiting times and get appropriate help to families at the earliest possible point.

If we are starting at the beginning of the pipeline, we should have mandatory mediation information sessions for parents, which are provided for in the Act, and mandatory intake sessions, which would help people to understand the process. Research in California shows that once people have attended the first mediation session, 80% tend to go on. The regulation of mediation must remain a priority. I am in a working group convened by the Legal Aid Board to work towards forming a mediation council. Once that council gets about its work as set out in the Act, the uptake of mediation will then increase as potential users know what it is, understand the benefits, and become confident of the training standards and competency of mediators.

The two main reasons I have observed for choosing litigation as the first option is that people believe or are being told that they will get a better outcome, or they believe they will get their day in court and that the judge will tell the other person they are wrong. People need to understand that neither is likely to be true. The overwhelming majority of cases that litigate settle in the corridors outside courtrooms. In effect, people are actually coming to a settlement agreement.

I refer next to what the Government can do in the area of VAT. The bulk of our private family mediation work is charged at a rate of €123 per hour, of which €23 is VAT. One immediate step the Government could take to support families in distress is reduce the tax on those fees. Those who need the services of a family mediator or a family law solicitor are individuals rather than businesses and, therefore, cannot reclaim VAT, which at the current rate of 23% is almost a quarter on top of the fees charged. Nuala Jackson, senior counsel, who is here today, sets out in detail in our submission that our framework for resolution of disputes must take the following into account. We must have satisfactory resolution for those who are in dispute. It must come in a timely manner with the least acrimony possible, and it must be affordable to those who are in dispute.

Moving on to the end of the pipeline, what can we do about the courtroom itself? We need specialist volunteer family law judges with a genuine interest in this area of law, who are not rostered or forced to take the cases but who opt in. We could use the 80:20 Canadian approach, where a judge does family law cases 80% of the time and locum work or other material 20%. The judges tell me they would go crazy if they did family law 100% of the time. We should also ensure that specialist family law judges have an aptitude and personality suitable for family law. Not every judge I have seen in the courtroom is a suitable person to hear family law cases. We need to change the jurisdiction of the courts. Our system currently discriminates against married people. They are forced to make any application relating to separation or divorce at Circuit Court level, which is generally a much more costly exercise with greater time delays. I propose that all private family law matters relating to children and maintenance be heard in the District Court, and the Circuit Court deal with everything else in respect of separation and divorce. This would get children the help they need fast in terms of access and parenting. We need regional hubs with as many days as are needed so that we can move to a case managed system like the one in Oshawa family courts, Toronto, where specific appointment times are set for a case to be heard and there is no gathering of multiple cases at a courthouse at the start of the day for call-over. When I observed the court cases in Oshawa, I was shocked that there was nobody in the building. I thought I was in the wrong building or had the wrong day. I realised there were appointments at 10 a.m., 12 p.m. and 2 p.m.

Users need predictability. The unfettered discretion of judges results in a considerable variation of approach and outcome, even with the same judge on different days.

It is difficult to identify any pattern, with outcomes depending on the personal views and disposition of a judge. We need formulas that quantify maintenance and guidelines for all other matters. These exist in other countries and if the committee wants me to, I am happy to ask for permission from Canada, New Zealand and Australia for us to use those here. They have already indicated we can have them.

We need to encourage litigants to try mediation and the State can offer further support by opening up the courthouse facilities, which are empty on many days of the week, for mediation sessions where a case is already under way and has been adjourned to allow time for mediation.

The most important person or people in this process are the child or children. The most appropriate way to hear the views of a child, on access, custody and guardianship, private law cases, is in child-inclusive mediation, with appropriately trained mediators. A judge who is subsequently asked to rule or enforce any agreement resulting from mediation can then be satisfied that the views of the child have been heard.

The court needs a panel of child view experts immediately available, who can produce a report for the court within a reasonable timeframe. If we operate a regional hub approach, then, rather than having a capped fee of €250 or €350, it may be more cost-effective for the State - I am all for saving money for the State - to have these child view experts on salary.

We should have parenting guidelines for judges based on international research, so that a child's right to have both parents in their lives is effectively prioritised.

In respect of parents, we need to ensure parity of treatment for both parents in our courts. Non-resident parents are overwhelmingly fathers in Ireland, and their role as parents is generally not supported by the current approach of the courts. Fathers are secondary or second-class parents as far as our court system is concerned. Where access orders are unilaterally breached, enforcement must follow and it does not currently. Sanctions are open to the court under the 2015 Act and should be consistently applied. I have been in the District Court since 2017 and not once have I seen them applied.

I thank this committee for the opportunity to make a submission and my colleagues who contributed, Dr. Sinead Conneely, Shane Dempsey, Nuala Jackson and Marie Dennehy. Three are here today and we are ready, willing and able to do what we can to help. We will meet any member of the committee any time day or night because this is too urgent and will provide any assistance we can. We await your call.