Mr. Seán Ó hUallacháin:

As Deputy Clare Daly stated, there are many issues involved. I will deal some on an historical and overarching level and then hand over to my colleagues. The section 47 report originated in the Family Law Act 1995. Interestingly, that section has never been commenced to operate in the District Courts, which always operated on a "needs must" basis over the years. There was also a resourcing issue. Judges of the District Court tended to find other ways around this issue by using sections in the Child Care Acts until the HSE, previously the health boards, complained their social workers were being utilised too much.

This area has, therefore, always operated as a poor relation. In fairness to the assessors in section 47 cases in the Circuit and High Courts - which are mostly in the context of judicial separation or divorce cases and where all of these other issues relating to children form part of the overarching case - they would generally have been from regulated professions such as child psychologists and child psychiatrists. There were some occasions where other assessors were used. Generally, however, there was a cohort of people whom the practitioners and the courts knew. They were generally well regarded and provided very objective expert witness reports, as opposed to hired gun reports.

It would be unfair, therefore, to castigate the cohort of child psychologists and child psychiatrists who, in the main, did this. There was a cost with that process and there was an inequality of arms. There still is. As Ms Jackson confirmed, the Legal Aid Board would not fund these cases at a proper commercial rate. A person privately funding a case would be able to pay for the appropriate report. Practitioners found that the Legal Aid Board, notwithstanding the best efforts of those working there, was parsimonious and reluctant to pay for a proper report.

I should state the same situation would apply if a person wanted a specialist accounting report or other specialist evidence. It would be very hard for counsel acting on behalf of a client with legal aid to get the evidence. They would always be on the back foot against a privately-funded person who could afford an accountant or child psychiatrist. In general terms, however, those reports worked well. The District Court did its own thing, relying on section 20 of the Childcare Act 1991 at one stage, until it was told to back off, but it did work reasonably well. I do not think it is correct to state that system does not work. It is an issue of cost.

Regarding appeals, any decision of any court is amenable to an appeal. A decision of a District Court judge could be appealed to the Circuit Court or a decision of a Circuit Court judge under section 47 could be appealed to the High Court. I appreciate the report is still being dealt with and I accept it is difficult to overturn such reports. On the few occasions when I can remember it occurring, it was more undermined by the research methodology used by the assessor rather than the findings. It is, again, a question of commerciality. Who is going to go to the cost of getting another child psychologist or child psychiatrist to counter the evidence of the assessor? It becomes an expensive process but it can be done.

On the issue of strategic delay, I hear what Dr. O'Shea is saying and that does happen. In reality, however, no matter what system we come up with and no matter what finds favour with the committee or the Oireachtas, there are always going to be statistical outliers. In my experience, and probably that of my colleagues, most people do not engage in strategic delay. They want to get the case done, their children looked after and to be able to move on with their lives. In fairness, that is what courts try to do. They try to get people to move on with their lives rather than spending forever looking back at yesteryear. That is a positive thing to do and practitioners try to do that as well.

The number of people, therefore, engaged in strategic delay is minimal and they will exist no matter what system is in place. In our submission, many things are interrelated. There is no suggestion that it is possible to fix one thing and let other things go. That is why we state there must be judges with appropriate training. I think we all agree on that. Those judges should be in place for a particular period of time. That could be for one or two years and 80:20, as Dr. O'Shea suggested, or full-time. Then we will get consistency in respect of all issues. I refer to the evaluation of strategic delay, reports and assessments and sanctions on people, whether in the context of cost sanctions or otherwise.

This is another complication in the family law arena that is very different from the general rule in civil law that costs follow the event. It is not all bleak. There is a structure and it can work very well but it requires consistency on the part of judges, practitioners and the experts coming in, and a functioning civil legal aid scheme.