Mr. Seán Ó hUallacháin:

I thank the Chairman for inviting the Council of the Bar of Ireland to address this meeting of the joint committee to address reform of the family law system. My colleagues, Dr. Sarah Fennell, BL, and Rachel Baldwin, BL,, are in attendance with me today and we will be happy to answer any questions the committee may have during the course of this meeting. Between us we have more than 50 years' experience in family law. Each of us has a particular area of expertise and that is why the three of us came today. It is a vast area, no one person covers the entire gamut of current family law practice. Our submission, which the committee has received, sets out our preliminary responses to the issues identified by the committee which it wishes to address. I do not intend reading out that submission in full but I will draw the committee's attention to some key points within it and then take questions.

The Bar Council is strongly of the view that the expedient and efficient resolution of family law proceedings arising from relationship and marital breakdown is in the interests of children and the parties to the proceedings. The delays currently experienced in family law proceedings increase difficulties and complications which arise in the context of relationship breakdown, marital or non-marital. The District and Circuit Courts deal with most private family law litigation and as Dr. Coulter has said, childcare matters. We have set out statistics from a Courts Service report of 2017 and the bulk of cases are District Court cases of very serious import to the parties involved. The High Court is available to deal with more complex or urgent matters or where it is simply thought appropriate that the High Court hear the case where particular issues of law might arise. In our experience this division works quite well and reflects the ability of different courts to administer justice within their spheres.

In Dublin, there are dedicated family law courts and while delays remain in the system, there are not the chronic delays that can be experienced in other parts of the country. Outside Dublin, the number of days allocated to family law sittings can be quite limited which results in system clogging and long gaps between the institution of proceedings and their determination, or broken hearings of a day here and another day several weeks or months hence, which is not satisfactory for anyone, not even the court. Regularly in Circuit and District Courts, family law proceedings can be listed alongside the general list of criminal and civil matters, which is far from satisfactory. It is likely that family law cases would be dealt with more efficiently, were a specialist division of family law courts and judges to be created. In our view this would ensure that the same judges would deal with the family law list on an ongoing basis which we believe would not only lead to greater efficiencies but also to greater consistency. It is not envisaged that specialist judges would be confined to family law but they would be assigned from a pool of general judges. Historically, there is nothing to indicate that because a practitioner practised in one area he or she could not adapt to being a judge in a different area. Training in the contemporary world is the key. Such a family law division exists de facto in Dublin and can operate within existing structures, without the need for a referendum, perhaps not even for legislation. There may, in some circumstances, depending on how reform goes, be a need for legislation but I do not see the need for a referendum. We suggest that the existing system can be made operate but any division is meaningless unless it is adequately resourced, as with all public services.

There is a lack of adequate facilities generally for the conduct of family law proceedings. In the absence of a purpose-built family law complex in Dublin, applications are heard and determined in various locations which in general are unfit for use. Current locations include childcare cases being dealt with in the District Court sitting at the Bridewell – the committee may be familiar with it, it is behind the Four Courts, beside the Bridewell Garda Station. It is a 19th century building which was used, until it was revamped, for District Court criminal cases. While it has been revamped it is still very unsuitable for the highly emotive, contentious issues involved in public childcare cases. People are in very close proximity in inadequate facilities where emotions run very high. In addition, most private family law cases in the District Court are dealt with in Dolphin House, which has been there for several decades. It is an old hotel behind the Clarence Hotel, at the Parliament Street end of Temple Bar. It was fine perhaps once upon a time but with the growth in the volume of cases it is chock-a-block. My colleague, Rachel Baldwin, has more knowledge of this but in my memory, it was never very suitable and is totally unsuitable at the moment, notwithstanding the best efforts of individuals in the Courts Service to make it work. The Circuit Family Court sits in Phoenix House in Smithfield. That was a major improvement when it came in but once again, the volume grows, times have moved on and, while it is not bad, it is far from ideal.

Outside Dublin family law applications are heard in the existing District and Circuit Court locations on appointed days, as are Circuit Court appeals to the High Court. Due to the fact that family law proceedings outside of Dublin are generally heard on specially fixed days, the applications will necessarily take place in courtrooms constructed in a different era for different purposes and are not particularly suitable for family law litigation. They may be suitable for criminal cases involving juries, they may even be suitable for civil cases but they belong to a different era. Even with the revamping programme that has taken place in my lifetime at the Bar, where a lot of money has been spent on redesigning courthouses, they are still far from ideal and there are never enough adequate consultation rooms or family-friendly spaces. In short, it is not feasible in these venues, to have properly designed resources for family law cases because they only represent a portion of the business conducted in that courtroom. That is a bit of a conundrum because while I talk about a specialist building in Dublin, which is big, outside Dublin a huge assessment is needed as to how to deal with this, whether regional centres of excellence, separate buildings or by hiving off part of an existing building. It is a big job but it has to be addressed and some start has to be made on it.

The inconsistent resources in court venues and the lack of adequate consultation rooms, for example, directly impacts on the manner in which family law proceedings are conducted. The failure to provide separate waiting areas or family-friendly spaces can significantly increase stress and anxiety, which would be avoidable prior to participating in a family law application. It is even as simple as how does the lawyer consult properly with a client in privacy over sensitive issues, or sometimes less emotionally sensitive but personal financial issues.

It is very difficult. These situations of extreme stress can result in volatility in the conduct of the litigation. Everyone needs to remain calm, and it is probably the biggest criteria that is needed to run these cases.

As regards our view, certainly, in Dublin, I refer to the construction of the dedicated family law building at Hammond Lane. The committee will be aware of it. It is behind the Four Courts, on Church Street. There is a site there which was to have built on it a purpose-built family law complex which would accommodate all the existing family law courts in Dublin and would also accommodate the children's criminal court. It was a superb idea behind which the family lawyers, the Law Society, the Bar Council, the Family Lawyers Association threw whatever weight they had. Unfortunately, it seems to be stuck and is going nowhere. If it was built, and it needs to be built, it would go a long way towards addressing deficiencies in the current family law system, certainly, in the greater Dublin area.

In addition, we are acutely conscious that in modern times a properly functioning civil legal aid system is essential in providing access to justice. As the committee can see from the statistics, and as I have stated already, the vast bulk of cases are District Court cases. Significant numbers of people will be on legal aid. Whatever about the rows about the means test and what level it should be set at and whatever about the good work that is done by individual solicitors within the Legal Aid Board and practitioners engaged by it, the system creaks along rather than works. Again, it is back to resources. This, in itself, causes delay in the court process where one party is on legal aid and another is not and there are delays because they are waiting to get their interview with the solicitor and they are waiting to get their legal aid certificate. That has consequences for the entire running of the court system. It might only be another five or ten minutes on each list, but if one multiplies that by several cases, one could easily lose half an hour or an hour of a day. It can result in applications being brought by the other side, who may be privately funded, wanting to move it on, and the judge is trying to be sympathetic to the person getting legal aid and one gets costs built up as a result. One needs a viable functioning legal aid system.

Finally - and, as I say, I am happy to take any questions - the areas touched upon throughout our submission simply demonstrate in an initial view how the administrative organisation of the court structure and improvement in court facilities can have a positive impact on how we manage family law and how we can expedite cases and, hopefully, reduce the cost of this to individuals over time.