Oireachtas Joint and Select Committees
Wednesday, 6 March 2019
Joint Oireachtas Committee on Justice, Defence and Equality
Reform of Family Law System: Discussion (Resumed)
This morning we will continue our series of engagements on the reform of the family law system. From the Child Care Law Reporting Project we are joined by Dr. Carol Coulter, director, and Ms Maria Corbett, researcher. From Arc Mediation we are joined by Dr. Róisín O’Shea, director. From the council of the Bar of Ireland we are joined by Mr. Sean Ó hUallacháin, SC; Dr. Sarah Fennell, BL; and Ms Rachel Baldwin, BL.From Treoir we are joined by Dr. Ruth Barrington, chairperson; Mr. Damien Peelo, CEO; and Ms Mary Roche, policy officer. All of the delegates are most welcome.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
I invite Dr. Coulter to make the first opening statement.
Dr. Carol Coulter:
I am grateful to the joint committee for giving me 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 shall 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.
In my opinion, 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 shall 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.
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.
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.
Dr. Ruth Barrington:
I thank the Chairman and members of the committee for the opportunity to present Treoir's view of the reforms that are needed in the family law courts.
Treoir has been in the business of providing a specialist information service to unmarried parents and their children for over 40 years and the issues that we will be bringing to the committee's attention have been raised by the many callers, both on our phone line and to our offices, over the years.
Our aim is to achieve a system where unmarried families are recognised and treated with much greater respect than they are at present. I need not remind the committee that the recent figures show that more than 30% of children or approximately 25,000 children a year are born now to parents who are unmarried. This is a growing population of people whose rights are still very vague.
We have a particular issue in relation to the rights of unmarried fathers to guardianship of their children. We believe that, first, as set out in the UN Convention on the Rights of the Child, every child has the right to know who his or her parents, both father and mother, are; and second, has the right also to enjoy the company of both parents. As other speakers have said, if one starts from that position one must take a different view of the interventions that are currently available for unmarried parents and their children.
I would now like to hand over to Mr. Peelo, our CEO, who will elaborate in more detail on some of these points.
Mr. Damien Peelo:
Treoir acknowledges that there have been far-reaching changes in family law over the past five years. However, despite changes to the law, significant deficiencies exist in terms of how the system continues to operate and we deal with the consequences of this on a daily basis through our information service.
Two issues emerge in terms of the operation of the family court that we would like to highlight. One is the lack of information in the public domain. The second concerns access to legal advice and representation, and the question of economic inequality.
Twenty-five years ago, the Law Reform Commission report on the family law system noted that the structures for the mediation and resolution of family conflict were grossly inadequate. Fast forward to today, and the family mediation service remains under-resourced with people waiting from 12 to 26 weeks to get an appointment. Enough is not being done to ensure alternative dispute resolution, ADR, is properly resourced and available for parents, both pre-court and post-court. The failure to properly resource dispute resolution means that Ireland lags far behind other countries in establishing and sustaining shared parenting. As Dr. Barrington has said, Treoir believes all children have a right to know, to be loved by and to be cared for by both parents, where possible. Shared parenting gives children the possibility of a nurturing relationship with both parents and their extended families and works well if it is child-focused, rather than adult-focused.
In the Republic of Ireland, conflict between unmarried parents is often exacerbated by the fact that unmarried fathers do not have automatic guardianship rights. Even if his name is on the child's birth certificate, an unmarried father does not have rights in respect of his child and this creates inequality in terms of parental rights and responsibilities which often results in the parents going to court. The adversarial route clogs up the courts and leads to tension and conflict between the parents.
Treoir is calling for automatic guardianship rights to be extended to unmarried fathers whose names are registered on the child's birth certificate. This practice has been in force in Northern Ireland since 2002. It would also mean that we would have a national register for guardianship. When we think of our children and we talk about the future and children being our greatest asset, we do not have a system currently where we know who the guardians of children are.
I will say a little about the voice of the child. In 2019, people on low income remain at a clear disadvantage when it comes to the family law system. For example, those who qualify for legal aid must make a minimum contribution of €130, which is a substantial amount of money if one is dependent on welfare or a low-paid worker. This means that those who are less well-off often end up representing themselves in family law hearings. This delays the process, places more pressure on an already struggling court system and causes increasing tension between the parties.
Inequality between those who have the financial means to hire legal representation and those who do not is replicated again when it comes to the voice of the child. Article 42A.4.2° of the Constitution enshrined the right of children to have their views heard in guardianship, adoption, custody and access proceedings. Under the Children and Family Relationships Act 2015, the court has provision to appoint an expert to determine the views of a child or receive a report on any issues affecting that child. A fundamental flaw of this provision is that parents, regardless of their financial means, must pay for that report. People entitled to legal aid can get 50% of the expert report covered by the Legal Aid Board but it is still a substantial cost. Treoir is concerned that many parents on low income are not able to afford this, with the result that the constitutional right of the child to be heard is seriously compromised. Simply put, the lack of legal representation, the cost of the expert report and the socio-economic situation of parents have a considerable impact in determining access in full to the family law system.
I want to say a little more about the information deficit. A recurring theme from our work is the lack of knowledge among the population about the family law system.
There is confusion about the meaning of guardianship and the extent and limits of people’s rights concerning access, custody and maintenance. More worryingly, Treoir has identified a significant gap in knowledge of family law among members of An Garda Síochána, the legal profession, social workers and the Judiciary, as we have heard from other submissions. This is compounded by a pronounced geographical variation in how the system operates, especially with regard to the haphazard use of a very important document called the statement of arrangement for a child. We urge the committee to recommend that a circular be sent to all District Court judges emphasising the importance of this form and insisting that it is used. It is a very specific form that allows the judge to have a history of the circumstances of both parents.
Treoir urges the Minister to introduce a national public campaign on these issues. The Australian Government introduced such a campaign in a major review of family law in that jurisdiction. It has proved to be very successful in informing members of the public about their rights. In our submission we have listed five clear recommendations that Treoir believes will improve the family law system. They include extending guardianship rights to fathers whose names are registered on children's birth certificates; ensuring that the family mediation service is properly resourced, a system of alternative dispute resolution is introduced and shared parenting supports are resourced; and introduction by the Minister of a national public information campaign on key issues such as access, custody, guardianship, birth registration and maintenance. We also acknowledge that this terminology is outdated and needs to change.
I thank members for their attention. We are happy to take any questions they may have and continue to work with this committee and the Department of Justice and Equality to improve the system.
I thank Mr. Peelo, Dr. Barrington and all who have presented. I know that some members are under pressure because of other legislative business. Deputies Clare Daly, O'Callaghan, Ó Laoghaire and have indicated and I propose to take members in that order. We already had an indication of-----
I thank the witnesses for coming in. Listening to them has been very useful to the committee. I wish to let them know what our process is and what we are trying to do. Reform of the family law system is a big part of our work programme for the year. We have heard from today's witnesses and from other people in previous weeks. Our final sittings will be next week. At the end of this process, we will produce a report with recommendations based on the expertise we have drawn on. We will deliver the report to the Houses of the Oireachtas and the Chairman will launch it. Hopefully, it will have some impact in changing what we think needs to be changed in the system based on the witnesses' expertise.
I will start with a couple of questions for Dr. Coulter. I commend her on the excellent work she does in reporting family law cases. She said there should be a dedicated reporting body. Is the child care law reporting project sufficient, or is something more than that needed?
Dr. Carol Coulter:
We are a time-limited body. We initially came into existence for five years. The Department of Children and Youth Affairs sought to extend that period to inform the review of the Child Care Act 1991. After a competitive process, we were successful in obtaining that extension but our work is time-limited. However, it is a model that works. I recently had an opportunity to speak to child protection lawyers in England, where they are struggling to find a transparent system that works. Various attempts to amend the law have not led to adequate transparency in the English system. As each individual court determines what can and cannot be done, arguments as to what reporting can be done are sometimes completely separate from the child protection proceedings themselves. This lengthens the proceedings. It does not solve anything, and it leaves the courts and media organisations to struggle with the issue of anonymity and protecting families.
I would propose a national system which could be attached to the Courts Service. As I said, the child care law reporting project is time-limited, so I am not talking about us. Such a system would ensure there was a national protocol to protect anonymity and avoid issues like the geographic identification of the courts. That is one of the dangers which exists at the moment. For example, if a local newspaper reports on proceedings, the very best efforts of The Clare Championin reporting a case in Ennis will not adequately protect a family's anonymity. However, if we ensure that geographical details are redacted as well as identifying data on the family, then reporting can show how the process works in individual cases. That model works very well. It is now prompting some international interest. A researcher is coming from the UK next week to look at how this model works to see if it could be transferred to other jurisdictions. It has managed to avoid identifying families while providing information about what happens in the courts.
Dr. Carol Coulter:
The project only concerns public family law and it is currently funded by the Department of Children and Youth Affairs. When it was initially established it benefited from a mixture of funding from the Department of Children and Youth Affairs and philanthropic funding, but it is now entirely Government funded.
Dr. Carol Coulter:
More than ten years ago, there was briefly a pilot project funded by the Courts Service to see if it could be done. However, that was also time-limited. There is a report on how that was conducted on the Courts Service website, a copy of which I have made available to the committee. It was essentially the same model. Again, it was possible to report on private family law without identifying the families by ensuring there was an anonymising protocol in place. That can work.
I wish to ask Dr. O'Shea about her presentation. Everyone would agree that we should try to resolve family disputes at the earliest possible stage. There are two parts to my query. First, sometimes in family law environments there is alleged or actual domestic abuse. Under the Mediation Act 2017, certain types of cases are precluded from mediation because of that.
Dr. Róisín O'Shea:
I am glad the Deputy raised this, because it is something about which I feel very strongly. In the pilot project we are carrying out in the south of the city, we are mediating domestic violence. I will tell the committee why. If we do not mediate domestic violence issues, we are saying that the alleged victim cannot choose to use mediation. Moreover, the rest of the victim's life continues. Access, maintenance and the rest of his or her life continue even when there is domestic violence. I took my lead from a judge in Canada, Justice Geraldine Waldman, who set up a trial court in which the first part of the case involved hearing the criminal allegations of domestic violence. In the second part of the case, the court heard evidence on the other issues to do with the family in question. In other words, the first part concerned whether an assault or psychological violence took place. Then the judge took off her gown and heard the second piece, which concerned maintenance or parenting issues.
I was in court on Monday watching cases in Dolphin House. I took note of what one of the judges said to me, or rather to the litigants - because I am listening I always think I am being spoken to. The father was 21 and the mother was 19. The mother said that the father should not see the child because he was a criminal. The judge asked the father questions and discovered that he had been in trouble when he was a young lad, as well as being in trouble now. The judge said that the father having a criminal record or facing criminal sanction did not mean he stopped being a father or stopped seeing his child. It is our job to figure out the circumstances that led to an allegation of domestic violence.
I want to be clear on one aspect of the Act. As one of the relevant stakeholders with respect to the legislation, I fought on this issue but I was not heard. I wear two hats in that I have my private practice and I carry out research. My colleague, Dr. Sinéad Conneely, and I pointed out that section 3 excludes the application of the Act to mediation where domestic violence has taken place. That is what it does. It does not say that one cannot mediate where there is domestic violence. It says the Act will not apply to mediation. I had a conversation with the President of the District Court, Judge Rosemary Horgan, in a meeting with five judges and we spoke about this. I gave my view and they appeared to agree with me. The first findings of our research project that I will release will be on domestic violence. We will release the findings in May. We will look at allegations of domestic violence, how many of them exist, what is the evidence and what is the nature of them. In Canada, domestic violence is broken up into 12 different categories. We are doing this umbrella domestic violence piece. Physical violence is fairly rare. I worry that those who are genuinely suffering domestic violence are not coming into our courts. We then have all the permutations of the break-up of a relationship such as arguing and fighting. That is coming in as domestic violence when it is something different. It can turn into domestic violence but, initially, it may not be that. I was shocked to find that almost 16% of the domestic violence cases involve parents in their 50s and 60s seeking an order to put a son or daughter out of the house, particularly in Dublin, because he or she is assaulting them. Drugs and alcohol are the two significant issues that are not dealt with by the courts.
Dr. Róisín O'Shea:
Yes. Like any profession, there is a major split in the world of mediation about this. Many mediators say we should never mediate where there is domestic violence. I disagree completely. What one should do is use parallel mediation. One never puts the parties in the same room or building at the same time and one never tells them who has an appointment with whom. One manages it. The job of a mediator is to manage safety, as well as the space and power imbalances. I have taken my lead from Canada in particular and New Zealand where they are using this approach very successfully.
I thank Mr. Ó hUallacháin, Dr. Fennell and Ms Baldwin for coming before us. One of the things we discussed at the previous hearing was how the voice of the child can be heard in family law proceedings. From the practical experience of the witnesses, is there an inconsistency between how a judge will hear the voice of a child? Is it done in affidavit? Is the child called to give evidence? Does the child go into the chambers with the judge? Is this an area where there needs to be specific guidelines?
Ms Rachel Baldwin:
There is a great degree of inconsistency. It is done case by case and judge by judge. The regulations that came in this year, in respect of which issues relating to the fee applicable obviously arise, allow a court to order two types of reports, one of which is the voice of the child while the other is a question affecting the welfare of the child. All judges will make decisions regarding access, guardianship and custody where the welfare of the child is paramount. I think it was highlighted by someone else that this is child focused. It is the child's right to have access, if appropriate, to his or her parents rather than the parents' rights. There can be so much conflict between parents and, in my opinion and based on my experience, the majority of judges have said that this is about the child's right and not necessarily about the parent's right. The problem was that when this Act came in, there was no guidance as to how this would be done and how it would be funded. As was pointed out, it is to be funded by the parties. The Legal Aid Board stepped up to a certain degree and it contributes when someone has a right to legal aid. The fee is, however, completely inappropriate. It is not proper for the type of report. The difficulty is that if one just has the voice of the child, that does not necessarily take everything into account. For example, there might be a case where the child has been exposed to conflict, be it domestic violence or just marital or non-marital breakdown or conflicts between parents, or there might be a case where the child has not been exposed, the parents have kept the child away and the child might have a particular view either way but it is not necessarily in the child's best interest for him or her to have access on certain days. A lot is said about fathers' rights and that goes without question but it might not be in the child's best interests to have 3.5 days with either parent or both parents. The child needs a degree of consistency. Usually, if the child has a base, be it because of school, social activities or friends, he or she can see the other parent. Obviously, work is also an issue if both parents work or one parent works. A side issue that comes up, particularly in Dublin, might involve a case where the courts are more than willing to give overnight, mid-week or weekend access and the parents are agreeable to that but the parent who does not have the day-to-day primary care control of the child does not have the housing or the ability to provide overnight access. That happens quite a lot. There are no issues between the parents but, unfortunately, the accommodation is not available.
Dr. Sarah Fennell:
Following on from what Ms Baldwin said, we need to draw a distinction between public and private law cases in terms of the variety of mechanisms to hear the voice of the child because what is commonly utilised in public law proceedings is the guardian ad litemprocedure whereby that is not activated in family law proceedings. It is on the Statute Book but it never commenced. That was confirmed a number of years ago in the High Court. There are a variety of mechanisms to include a guardian, depending on the nature of the case, in terms of public or private law. Section 47 reports, as we traditionally know them, are available. They can sometimes now be referred to a section 32-type report. Sometimes the reports are used interchangeably. They are different sections within the Act.
There is also provision to join children as parties to proceedings or to allow children to have their own independent legal representatives. Those two mechanisms are used quite rarely. The other mechanism would be that a judge would hear a child in chambers. That is dependent on the particular judge. Judicial guidelines from the High Court to guide judges in that respect are in place but it is left to the discretion of the individual judge as to whether that is appropriate or not. I can only speak from my own experience, which would be primarily in the Circuit Court or High Court. It is the section 47-type reports that are most commonly utilised and involve private law cases. In the public law cases, it tends to be the guardian ad litemprocedure or judges may speak with the children in question in cases involving special care orders where teenage children will often be detained. We must be careful because that in itself raises constitutional and procedural issues in terms of the balancing of rights.
Dr. Barrington and Mr. Peelo said they think the system would benefit if there were automatic guardianship rights for fathers. What would be the practical effect of that on the family law system? I am not asking the witnesses whether or not they agree with it. What would be the effect of it? Is it easy to predict?
Dr. Sarah Fennell:
It is probably not easy to predict the effect in the sense that the 2015 Act, including the new provision on guardianship, only commenced in January 2016. Obviously, that was a significant development compared with what had existed previously under the 1964 Act, even in its amended guises over the years. It is probably somewhat early at this stage to flag exactly what the position of unmarried fathers has been following the 2015 Act.
Sometimes there is a perception that fathers do not get a fair crack of the whip when it comes to family law courts and that these courts are generally balanced in favour of the mother, particularly when it comes to custody and access. Do Dr. Barrington and Mr. Peelo believe this perception is correct or is it unfair?
Dr. Ruth Barrington:
That is certainly correct with regard to unmarried parents because, traditionally, the unmarried father had no rights in law. The Children and Family Relationships Act has extended in a very limited way the guardianship rights of fathers who have lived with the mother for three months before the birth of the child. These fathers can now apply to be the guardians of the child but it is not registered anywhere. It is done by statutory declaration.
Of course a declaration can get lost or be torn up. Somebody can claim it was never registered because there is no register of guardianship for those who are not married. If one is married, the marriage register is the register of guardians. If one is not married, there is no register of guardianship rights. When children born to unmarried parents were a tiny proportion of all births, this aspect maybe was not so significant. Now, with a third of children being born to unmarried parents, it is a significant social problem, which I do not think has been recognised or addressed appropriately in the Child and Family Relationships Act.
Mr. Damien Peelo:
Fathers, and unmarried fathers particularly, feel that they do not have an equality of rights and often feel disenfranchised from the system. Whether guardianship has a big impact on the family law system or not, it certainly should have a big impact on the attitude of fathers to their responsibilities in terms of their children. By not proving guardianship rights, it lets fathers off the hook in terms of that responsibility and denies them a right that they should have from birth.
Ms Mary Roche:
Only names are on the birth certificate. One must see it as part of a holistic approach to reforming the system. Going back to the 1990s, the Law Reform Commission's reports talked about supporting families and how to support them. The courts system does not operate in a vacuum. It is part of the broader society.
Ms Mary Roche:
On a daily basis we deal with issues that put huge pressures on families. There is alcoholism, drug abuse, poverty and lack of housing. Fathers who live in hubs have come to us. Mothers come to us and say, "He told me to leave, so I had to leave the house with the children, and I have no rights". The issue around fathers' rights is part of a broader suite of system reform and how people think about the matter. As mentioned in the reports of the Law Reform Commission, other jurisdictions do not use terms like "guardianship" and "custody access" but talk about parental responsibility, day-to-day care and contact in terms of access. The terms we use are considered to be parent-centred. Instead, we should use child-centred terms. We must also support families and provide resources so people have access to public housing and mental health services. One's family law system sits within that broader context.
Dr. Róisín O'Shea:
The default access orders of the District Court and the Circuit Court for non-resident parents, who are fathers in 97% of the cases, are every second weekend and one night during the week. When I carried out my Circuit Court research I interviewed 15 of the judges. I asked them where did the orders come from and it took nearly two years for me and these judges to figure it out. What we figured out and learned was that these orders came from expert reports when a welfare issue was raised about a child. Every second weekend and one night during the week was meant to be the least amount of time a non-resident parent would have with his or her child and not the norm. What has happened is that all of our courts order that as the norm. That is impacting on fathers and is a very serious issue. How do we resolve this? We provide parenting guidelines, which is what is done in other countries. There are parenting guidelines in Canada that stipulate children who are under the age of five or six years should not be more than four days away from the other parent - the non-resident parent. There should not be these big blocks of time.
Mediation is now court linked, under the Mediation Act 2017 that came in in January of last year. In other words, if a case rocks up in court and the parties have not tried mediation then under section 16 of the Act a party to the proceedings can ask the judge to ask both of them to consider and to try mediation. We have only just launched our project in Dublin and in the 50 cases that we did, the parenting time for the non-resident parent improved in all cases, and 80% of the fathers in the 50 cases did not have any access at all. We could address the imbalance in parental rights by good, competent mediation linked to our courts because, under section 11 of the Mediation Act, the parties can now determine if a mediated agreement is legally binding and capable of enforcement. Let us say there is a parenting agreement in mediation but somebody breaches it down the road, the case can be brought into the District Court really fast and the agreement enforced. The judge has a really clear picture of a child's life. He or she will know what time the child gets up at, goes to bed at and goes to see Mary at, when the child makes his or her communion and goes on holidays and what things the child does at Christmas, etc. A mediator can map that out carefully and slowly based on the parents of the child but a judge cannot. Of the 375 cases I have done on the District Court, fewer than ten minutes is the full hearing time per case.
I thank all the witnesses for coming here, although I found their remarks utterly depressing. It is brilliant that they decided to come here because this is such an important area. Our failure to deal with it, as a society, is so enormously damaging that there is an imperative on all of us to listen to the advice that we are being given, and act on same. The saddest part is that some of the issues have been well flagged but have not been acted on for a period. Some of my thoughts on this matter are a little bit eclectic, so I may throw out some stuff. I will start with the whole area of listening to the voice of the child. If we considered matters like that in a real sense then things might be different. It would be a good starting point. The Act in 2015 gave directions for an expert report to be done on the welfare of the child. Recently, the Bar Council talked about some of the regulations and the experts being problematic not least, I think the witnesses said, on account of the maximum fee being set. I would like to explore some of those things.
Why are the regulations problematic? What is the issue with the maximum fee chargeable? A maximum fee is a sensible suggestion. I have heard of people paying thousands upon thousands of euro for section 47 reports. Would it be better to cap them? Would a State-funded scheme be better, as suggested by Dr. O'Shea?
I refer to the differences between section 47 reports under the 1995 Act and the section 32 reports under the 2015 Act. Are they the same? How do they differ? How come section 32 reports can be compiled by psychiatrists, psychoanalysts and social care workers who have undergone specialist training while section 47 reports can be compiled by whoever the health board deems to be qualified? This is a huge problem. Is there a fee cap on section 32 reports? I think there is a cap on them but not on the section 47 reports, which are more commonly used. The reason for this is a lack of consistency. Some judges sit down with the children and ascertain their views in a very nice, all encompassing way but most judges do not because they probably think that talking to children is hippy nonsense and a waste of time when he or she has too much work to do or whatever.
Do the witnesses think there is a limit in the Act? The Act gave power or enacted the constitutional provision to recognise the voice of the child. The Act only talks about the views of the child where they are ascertainable and that the court "may" does so. Do the witnesses think the Act should be changed and the word "shall" inserted? Should the voice be required because some judges do not listen to that voice? In that context, there is a huge issue with the section 47 reports. I have heard a lot of people say that it is not the voice of the child but the voice of the psychoanalyst, for example, who takes a certain view. It is hugely problematic that this is an unregulated profession. I have raised the case of psychoanalysts many times with the Minister. It will be two years before the profession is fully analysed, so anybody can call himself or herself a psychoanalyst and, therefore, could be authorised to compile a section 47 report.
There is a gap in the law. If I do not like a report, there is nowhere I can go to overturn it. Is it the witnesses' experience that, even though the judge may take these reports into account, in practice they have become the gospel for many judges? That is against the backdrop of there being no mechanism where a report can be appealed or complained about because it is an unregulated profession. To me, that is an incredibly daunting and worrying situation. I would like to hear comments on that and how we can improve the situation so the voice of the child can really be heard. At the moment, as far as I am concerned, that is not being dealt with properly.
Dr. Carol Coulter:
I will be very brief. In public family law, overwhelmingly, it is the guardianad litemwho is meant to represent the voice of the child. Guardiansad litemunder the Child Care Act 1991, and the new Act dealing with ad litemwhich has not come into force yet, have two jobs. One is to represent the views of the child and the other is to represent the welfare of the child. Those may not necessarily be the same thing at all. There is a great danger in that system that what we get is a guardianad litemrepresenting what he or she thinks to be in the welfare of the child and the views of the child get lost.
Children, of course, may not always be the best judges of their own long-term welfare but, nonetheless, their unfiltered and unadulterated views do need to get representation before the court. I know there are many other issues in respect of private family law but this aspect needs to be clarified. Having an opinion on the welfare of the child is different from presenting the views of the child. It must be ensured that the views of the child are represented in an unfiltered way so that people are sure of what those views might be. That could be done through the child's legal representation or through an expert or guardian.
Dr. Róisín O'Shea:
First of all, our constitutional situation is not quite in keeping with the UN convention. Under that convention, children in this State have a right for their views to be heard if they wish their views to be heard and not if we can ascertain them. It does not relate to the capacity of the child but to his or her desire for his or her views to be heard. A sanction note has already been sent to Ireland stating we are not compliant with the convention. The issue is in respect of how we hear the voice of the child. I brought ten Canadian judges to a conference here chaired by Mr. Justice McKechnie in 2010. There were also four American judges and a couple from New Zealand.
The Canadian judges, in particular, were shocked that Irish judges were hearing the views of the child without appropriate training. Judges in Canada are required to have continuous professional training every year on how to hear the voice of the child, how to know if there is estrangement and how to know if there is parental alienation and coaching going on. The judges I interviewed often stated they were parents. That is not the answer. Being a parent does not make a person best placed to hear the views of a child and the complexity that may be involved.
There is a difference in the area of private family law. In that context, if there is legal aid, the report is paid for, to an extent. Ms Nuala Jackson, in the Visitors Gallery, will confirm that. If a person does not have legal aid I am seeing delays being caused. I will be publishing on this later. Those delays may be being caused strategically because people know the cost of these reports is so great. The delays are still very long even going through legal aid. I have seen what happens then, as recently as Monday. Judges are hearing cases where months have gone by without a non-resident parent seeing the child. The judge then finds there is estrangement because the child has not seen the father - invariably it is the fathers, unfortunately - for six, seven or eight months. It is stated that it is not possible to go back to normal parenting then and estrangement will have to be the starting point. Our screwed-up system has done that. It is not even the parents themselves.
Before bringing in Mr. Ó hUallacháin, I have to do two things. First, I extend a sincere welcome to everyone in the Gallery, including Ms Nuala Jackson. We do not write these protocols, but I have to state that only witnesses can contribute. People in the Gallery cannot be consulted. We might change things.
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.
Ms Rachel Baldwin:
With regard to what Mr. Ó hUallacháin said on consistency, it is better if a judge has been dealing with a case for a period of time because sometimes the difficulty with a case is the view of the court and the judges regarding what they will or will not do. There are circumstances where a court might adjourn a matter to allow a child to come in to convey his or her views and wishes but when it comes about the particular judge on the particular day may not necessarily want to do it or to put the child in that position. It depends and there a lack of training and consistency on this.
To return to the question on section 32 reports, as Dr. Coulter pointed out, the guardian ad litemin the public law system looks at the views of child and his or her and welfare but they might not correspond with each other. This is the difficulty we have with the section 32 reports. Essentially, there are two reports. There is one with the views and wishes of the child and another on the child's welfare. The regulations themselves just deal with the voice of the child and this does not take in the overall issue.
With regard to the question on why the fees might not be proper it depends on the professionals and how they conduct themselves. They might meet children with the mother or the father or, depending on the age of the child, they might meet the children by themselves, obviously brought by a parent. They could do play therapy or speak to them directly, depending on the age. Usually there are quite a few meetings and then the report must be written for the court. Deputy Daly asked about questioning or appealing the reports. If either or both sides are not happy with the report or have certain questions the professionals can be called to give evidence on this and to be cross-examined. If there is something with which people are not happy or if something was not said the professionals can be asked their views, for example, on whether they would have a different view if a parent moved closer. The professionals can be questioned and, as Mr. Ó hUallacháin stated, the reports can be appealed.
With regard to delays, the Act brings the views of the child into the case and this in itself will lead to delays because a case might be adjourned on the first day so the child can come in. A case might also be adjourned to order a report. These will cause delays but they are necessary delays. Unless there is an overarching question about domestic violence a majority of judges will order an interim order on access. This leads to delays but, in fairness to the courts, they try to manage it. A case might be adjourned for a week for mention. There might be three assessors with their various fees and information on how long they can do it and when they can start. The judge will then put back the case for a couple of weeks or months to see whether the report has been done and when it has been done a hearing date will be set. Judges micromanage. This is from their own point of view without necessarily having training behind it. They are trying to do their best with what they have.
Dr. Sarah Fennell:
In response to Deputy Daly's question on the working of the section 47 report system, what regularly happens in court hearings is that if either side challenges the findings of a report the assessor will come to court to give evidence. The assessor can be examined and cross-examined by the legal teams or the parties if they are not represented. This is commonly done. There certainly is case law that indicates the section 47 assessment is a tool in the overall process. Judges should certainly not in any way be bound by it but it is a factor to take into consideration.
In endorsing the comments made on the need for specialist training for judges and assigning judges from a pool, I would indicate caution that we do not fall into the danger of looking at family law in a vacuum as if it is separate from other spheres of law. Sometimes family law has a tendency to be viewed perhaps as a non-legal topic. It is very legal and it is complex. This is inevitable in many cases as it involves elements of constitutional law, EU law, international law, jurisdictional disputes, company law and pension law. There are various elements to family law cases and we have to be careful that we do not try to separate it as a distinct sphere that is separate from other legal spheres.
I do not want to dwell on it. Many of the points on section 47 must be seen in the overall context of the lack of training and all the other points that might address the deficit more so but I stick to my point that in the present scenario there is a power imbalance between the parents and the person who does the report. This is just a fact from my experience. A parent who does not agree with a report done by a psychoanalyst, which is not a regulated profession, cannot complain about the conduct of the person in dealing with the assessment. That parent has nowhere to go. Obviously, there are psychiatrists but some of these people are very well known by the courts. If a report is done by such an individual and a parent must question it, he or she is on the back foot and is the neurotic mother or however the person has been portrayed. The parent might not agree with it but he or she has nowhere to question it. There is a power imbalance.
While I hear what has been said about selected delays, in my experience some people do so. It is not that unusual. It may not be in the majority of cases but some people try to drag it out and cause enormous hardship.
My list of questions is a bit eclectic because I do not want to repeat points that witnesses have made. I want to tease out issues for myself. Dr. O'Shea spoke about access cases and that there is no sanction for breaches of access. Nobody would be in favour of sending somebody to prison and fines do not really seem that appropriate either. Does anybody have an idea as to what sanction we could have for something like this?
Dr. Róisín O'Shea:
I do not see sanctions in the District Court in private family law cases but under the 2015 Act we have sanctions that a judge can use. I was asking why these sanctions are not popping in the court. Dolphin House has 95% self representation so the staff in Dolphin House help litigants fill out the paperwork, which is a brilliant innovation. This is really good but they are dancing a fine line of not giving legal advice while helping them fill out the paperwork. People filling out the paperwork do not realise they should have filled out another form to state they wanted to come to court not only to deal with a breach of access but also to have a sanction imposed. The sanction that exists under section 18A is compensatory time. The judge may give parent who had been refused access longer periods of time to offset the adverse effects of the break in contact. This is a sanction but it is a good sanction because it gives parenting time to the parent who lost out and extra time on top of it.
Fathers or mothers who must come to court to enforce their rights may be reimbursed for expenses incurred in trying to enforce their rights. I have not seen that come up. The judges tell me they are not sure how they might do that if it came in front of them. In other words, are they reimbursing for the lost day of pay because of having to step away from the job for the day or are they paying for the bus, taxi or Luas fare to get to court? The judge can also ask one or both parents to engage in family counselling, individual counselling, mediation or a parenting programme. All these sanctions are for where one parent was unreasonably denied access based on existing court orders. It is there.
In 2017, I went to the District Court because I thought I would start to see this. This is what I was looking for. However, we are now in 2019 and I have not seen it once. We have had only 400 cases but in 400 cases I have not seen one application. To put it in layman's language, it is like getting the ticket out of the machine when getting a tax disc but nobody is pulling the ticket. A judge operates to the ticket that comes in. People fill out a form that goes before the judge but the judge can deal only with the ticket in front of him or her. If the person has not filled in a form to state he or she wants the judge to look at the sanctions, the judge cannot do it.
Mr. Damien Peelo:
When a court order is made, parents often think it is the letter of the law. In other words, if the order provides for visitation on two weekends and once during the week they are not willing to agree to anything else. There is very little room for negotiation especially if the parents are not getting on and they do not put the child at the centre. We have found that there is a lack of information available to parents in terms of what they can do and the sanctions for which they can apply. The other problem area is that of shared parenting. It is a whole different philosophy and way of working. It is not about the adults. It is about the child and about how do they work collectively in the interests of the child. We have found that parents who go down the shared parenting route are much more able to negotiate when there are breaches or when they have issues around access and so on. They are much more willing to be flexible in terms of arrangements with each other. We carried out research last October that examined the barriers to shared parenting. The main issue is that people get stuck in the letter of the court ruling. They think they cannot go beyond it and that they cannot renegotiate it even though it might not work for the child at different ages. In other words, what is agreed in respect of a child at aged three might be different to what is needed at age six and again when the child is aged nine and so there is constant change in the lives of the parents.
Ms Mary Roche:
The information piece is critical. We hear constantly from women that because maintenance payments have not been made they are going to withhold visitation rights. We always respond that under the court order, they cannot do that. People sometimes do not realise that under the law, access is different to maintenance. This is an issue internationally. Most people are not lawyers and it is only when life circumstances happen that they find themselves in this context. The Australian Government had a massive national public information campaign on this area which targeted the general population. We are contacted daily by people who as sole guardians of a child go to a Garda station to have passport application forms signed and the Garda refuse to sign them. In judges' decisions, a person might be a guardian of one child but not of another. There is a lack of general understanding around the concepts. This ties into what was said earlier about the Law Reform Commission recommendation in regard to simplifying the concepts. It is about the day-to-day care and the language used around these concepts.
Deputy Clare Daly mentioned the voice of the child. One of our recommendations is in regard to the child statements of arrangement form. It comprises 27 questions. It is a requirement of the Child and Family Relationships Act. The idea was that all judges at District Court level should be using this. It asks a broad range of questions on issues to do with domestic violence, criminality and what other children are living in the house. Lots of people have children by different parents and so the whole structure of the family is different. This is meant to give the judges an overview of a particular family. We have found that the form is being used in Dublin and Cork but outside of that, it is not being used. In terms of District Court judges, this form should be compulsory, because it means they have to take time and look at the family.
Ms Maria Corbett:
It should be noted that under an EU directive - the Brussels II bis directive - there is recognition and enforcement of family orders between European Union jurisdictions. Post Brexit, where an access or maintenance order is made in a court in Northern Ireland in respect of a family living in the Republic, there will not be the mutual recognition that has existed to date. New procedures will be needed as we will be going back to a previous way of doing things.
Ms Maria Corbett:
There are other mechanisms but I just wanted to bring that to the attention of the committee.
Under Brussels II, there is recognition and enforcement of orders and the placement of a child in care in another jurisdiction. Ireland places a number of children in the UK. There are also issues around parental abduction and the transfer of cases where families move but the case is more appropriately heard in another jurisdiction. Under the European Union's Brussels II legislation, there are strong procedures in terms of the requirement to hear the views of the child and clear timelines. There is a real loss in not being able to use Brussels II in regard to the UK jurisdiction. The UK will be a third country and so it will fall outside of it.
On shared parenting arrangements, the figures for the number of children who end up in shared parenting situations are shocking. Is this a practical decision on the part of the courts because, say, one parent lives in a big house with the children and the other lives in a one-bedroom flat because of our commodification of housing in this State? Do middle-class families fare any better in the 50:50 parenting arrangements? Is it a cultural problem in this situation? Why, in a post-separation era, do we not have more 50:50 parenting arrangements? I accept it cannot be divorced from the economic situation either.
Mr. Seán Ó hUallacháin:
It is about the reality of people's lives. I do not think anything different happens to middle-class people or other people. The court has the unenviable task of dealing with the facts of each particular case. As Dr. Fennell said, there is law in this but there also are the facts of each case, which, to a large extent determine certain practical outcomes. In a lot of cases, one parent, traditionally the father but that is changing, may well have workplace obligations which mean he cannot effectively take up equal parenting even if both parties want that. A lot of couples, be they in marital or non-marital relationships, if the conflict is minimised and the assets and maintenance issues are resolved do try to accommodate one another. A lot of it is the practical realities. There are difficult cases, which is a smaller subset where couples are in conflict and then, thankfully, a further smaller subset in respect of which section 47 or section 32 reports are needed. In a large number of cases people do come to an accommodation, but they have to take into account the realities of, say, commuting in Dublin if one lives in Chapelizod and works in Baldoyle. I do not think my colleagues would disagree with that.
Dr. Sarah Fennell:
I agree. A lot of it is a concept of shared responsibility between busy parents. The courts tend to take a holistic approach to the child's circumstances. It may well be that in some cases one or other side is not seeking a shared parenting arrangement because feasibly it would not work. I would echo what Mr. Ó hUallacháin has said in that regard.
Mr. Damien Peelo:
It is important to say that shared parenting does not mean equal parenting. It does not mean 50:50 parenting and this is often not in the best interests of the child so we need to examine that. There are serious issues for the non-resident parent, primarily the father, in terms of access to housing. Where there are two children in a family and as such, a need for a two-bedroom house, the non-resident parent will have difficulty getting onto the housing list because the provision is made for the primary carer. There are major issues in this regard.
Shared parenting is about participation in rearing the child in a much more equal way and having a say in that child's life in a much more meaningful way. There is need for dialogue and promotion of what this concept means and how we enforce it.
It is not just about parenting programmes. Unless the mum and dad are engaged in a dialogue, what tends to happen is that for the two days a week a child goes to the dad, he or she may be parented very differently than on the days he or she is with the mother. Shared parenting is about an agreement and the concept of bringing two parents together.
Dr. Róisín O'Shea:
I am going to keep it tight. I know I am loquacious but I am working on it. The Swedish research centre, CHESS, defines shared parenting as parenting where the non-residential parent has at least 30% of the child's time per week. That is beginning to be an accepted definition of shared parenting. We are a bit data-free at the moment but I will provide a statistic. In the 1,200 cases I observed in the Circuit Court, 1% of children resided with both parents under 50:50 parenting arrangements. That was the equal-parenting time piece.
Most family law cases take place in the District Court and there is no complexity of law there. There is no issue with quantifying maintenance. It is not how one feels about the money, it is a question of the numbers. However, we are number-bereft in the District Court. Parenting should be under guidelines. We should be using structured systems. These are not things that should be argued about and they are not legally complex. Most cases that have those complexities can be dealt with. They are the more rarefied cases. The vast bulk of cases do not have any legal complexity.
Ms Mary Roche:
There is a class dimension to this. The international research shows that in shared parenting, one faces a whole range of different pressures if one is poorer. Going back to the Australian model, it is about resourcing communities, including by way of family centres which become points where people can go. It is also about changing how we think about this, how men think about their roles in respect of children and how we think about the family. The buck does not always stop with the woman. It is about changing that whole structure. Resources must be provided for poor neighbourhoods and communities in order that facilities are there for them. It is about proper public services for people.
A great deal of ground has already been covered and while much could be asked, I have one or two further questions. I found Dr. O'Shea's presentation and answers to questions fascinating. I am interested in the point she made on alternative dispute resolution and mediation in respect of domestic violence. At our last hearing, the Rape Crisis Network's representatives said they did not favour it in those circumstances. I ask the other three groups represented here today for a response to that. I have listened to the arguments made and am open minded. My gut instinct is to be hesitant but I would be interested to hear what the other organisations have to say on the use of mediation and alternative dispute resolution.
Mr. Seán Ó hUallacháin:
The Bar Council is very much in favour of alternative dispute resolution. It must be borne in mind that alternative dispute resolution is not solely limited to mediation. There is collaborative law which is not developing to any great extent at the moment and there can possibly be arbitration. On that, the Bar Council is engaged in a pilot analysis with the Law Society and the Chartered Institute of Arbitrators to see if there are certain aspects of family law involving discrete issues which, without impeding on any constitutional boundaries, could be arbitrated to reduce costs and shorten cases. That is in its early stages. We have a dispute resolution centre at our premises in the Distillery Building on Church Street. While it is mainly used at the moment by inquiries and commercial groups, it is there. We spent money to fit it out and people can use it for mediation or arbitration in family law or any other area. We are very open to that. However, we are acutely conscious, with no disrespect to Dr. O'Shea who is an admirable person, that mediation is not a panacea. This is a wide panoply of cases and the numbers are big. There are a lot of family law cases where the parties will not be willing to engage in mediation. One can try and one can introduce them to it, but mediation by definition requires two consenting parties. Without that, mediation becomes another layer with an additional cost and a delay factor before one moves to the courts system or arbitration. At least with arbitration and the courts system, there are defined processes. In court, the judge can call the shots as may the arbitrator in an arbitration, albeit I accept that is limited in family law cases. While mediation certainly has a role and probably a greater one than it currently plays-----
To clarify, the question was specifically about its appropriateness. It has a value, albeit one can agree or disagree on the extent of the role it has. However, my question was on the appropriateness of the use of mediation and alternative dispute resolution in instances where domestic violence is an issue.
Mr. Seán Ó hUallacháin:
I differ from Dr. O'Shea on that, albeit there may be some analysis to be done. There may be a learning curve and there may be cases where it is appropriate, but I would be more in line with the view of the Rape Crisis Network. In general terms, domestic violence or abuse cases are not appropriate matters for mediation. My colleagues would have greater experience of this than I have at this stage of my career, but my experience is that these situations are fraught, even if, as Dr. O'Shea says, rightly, it may not be a matter of demonstrable physical violence but of other types of abuse. It is possibly dangerous. The victim in the relationship could come out the worse, particularly in a mediation where the mediator is not a lawyer. There is anecdotal evidence that mediation with a mediator and no lawyers can lead to the dominant spouse or partner engaging, in effect, in bullying during the mediation process. Lawyer-assisted mediation is slightly different because each person has a protector. In general terms, my experience tells me to be against mediation in situations of domestic violence or abuse, at least in the early stages.
Dr. Carol Coulter:
This does not really arise in child protection proceedings. Domestic violence certainly arises in child protection proceedings, as does child abuse sometimes. However, what is involved then is that the State intervenes in a family to limit or remove constitutional rights from family members. That is a totally different type of proceeding than private family law proceedings. As I said earlier, it is not appropriate to use mediation there. There is a second layer of issues that then arise in childcare proceedings where both parents may want to have access with their children and may have views about the children's education, health and so on. Certainly, mediation is very important there. Again, the domestic violence issue is unlikely to be one of the issues that features in that layer of consideration. It is not always appropriate to ask a judge to decide whether a child goes to this school or that school when there could be a mediated discussion around it. Equally, the issue of whether the Child and Family Agency allows access on a Wednesday or a Thursday is very suitable for mediation. A domestic violence issue will probably have featured in the order made on the care of the child by the court.
Mr. Damien Peelo:
It is a very important question. As Dr. O'Shea has said, there is quite a divide in the research. Treoir's position is that the right of a child to know and be cared for by both parents extends beyond the issue between the parents.
When it has an impact in the context of access and custody, we think that mediation can be appropriate where there is domestic violence if a child safety issue is not at stake. It all depends on the training and expertise of the mediator involved. There is training and expertise in mediation that would be able to determine whether one parent was dominant or not engaged. As Dr. O'Shea pointed out, mediation does not mean two people in the same room. It could be people - at different times, in different ways and in different spaces - who come to some agreement on how they will access the child and that it will not impact on the safety of the mother.
Dr. Róisín O'Shea:
I like to speak on the basis of empirical data, so if Mr. Ó hUallacháin makes a statement, I ask him to prove it. I know of no data anywhere in the world that would support what he said, namely, that there is proof that where there is a non-lawyer mediator scenario, there is bullying in the mediation process. My view is that this is anecdotal. If he can find the evidence, I am wide open to looking at it. We are running a research project to tease this out and see if we can deal with domestic violence. By domestic violence, we mean cases where there is an allegation of domestic violence, including psychological abuse, coercive control and physical violence. It is a substantial area. Where there are court orders to say that it is a result of physical violence, that may be screened out. We screen clients before we even do the mediation but most cases where there are domestic violence allegations can be mediated. Some 25% of the 50 cases we have addressed so far included domestic violence allegations. We are not on our own in this dialogue. It is happening in other countries which are trying to figure out how we do it best.
Drugs and alcohol are the two most significant issues that I see in the Circuit Court and the District Court, and the other problems flow from that, including domestic violence. The mediator to whom Mr. Ó hUallacháin refers is a mediator who is doing a really bad job, who allows a power imbalance to happen and a dominant personality to in any way bully or control the process. I am probably being a bit hard on Mr. Ó hUallacháin but the context probably justifies what he said. The context is that in Ireland, we developed family mediation that is unique and different to any other jurisdiction that I looked at. We began in the 1980s with a Catholic ethos, coming from the background of Accord, and we developed a form of family therapy mediation unique to this country. We do some great stuff. This was incredible in the 1980s. No other country started off a state family mediation service. We did it in Ireland. It was incredibly innovative but it has not evolved enough.
What Mr. Ó hUallacháin probably feels is the norm, a process with two people being in the same room at the same time with a single mediator doing a form of family therapy allowing them to vent and address issues, is not the norm. Our process is bi-gender and it is co-mediation. There are male and female mediators so that men do not feel that women are all over the process. There are separate mediations which we call parallel mediation. When people are in conflict, one initially works with them separately. We see them within ten days and try to get the first parenting agreement within another ten days. That first parenting agreement is six weeks long because everybody stays in the fight or flight space and in those six weeks we try to tease out a test run. Before they get to the end of the six weeks, we take them into a three-month period, then into a six-month period, then to here. Each agreement evolves with the family. Where there are domestic violence allegations, we try to figure it out. Five of the 50 cases involved domestic violence allegations. There were subsequently proceedings and an application was made. Four made undertakings through the mediation process to the court where the judge accepted those undertakings. An undertaking is where a person swears, on oath to the judge, to the same effect as a protection order or safety order.
I do not want to cause controversy. This was a point in a submission last week and we all took it as a given. It may sound self-evident. If an alternative point of view is brought forward to the committee, it is important for our benefit and for our report that it is fleshed out and we understand the two different points of view. I am not looking for a dispute or discord on that.
My next question is for Treoir. It relates to the discussion around shared parenting. I raised the lack of contact centres last week. At the previous meeting, I mentioned my knowledge of a service in my community that was limited to child protection referrals. It no longer takes referrals from the family courts where there is not a child protection issue due to a lack of resources. It is a beautiful, excellent facility. Weighing both considerations up in my mind - and my belief that it looks like an excellent facility - I have come across people who have stated that to try to engage with children in an environment such as that is unnatural and difficult. I am not talking about child protection issues because that is a discrete category. More generally, where a contact centre might be used, and a person believes that he or she is being observed and notes are being gathered, what is the view of the witnesses on it? Are they worth pursuing despite that they might not be the most natural way of engagement? Have our guests any other observations on the value of contact centres?
Mr. Damien Peelo:
It is a good question that we address in the broader submission. There is a lack of nationally available contact centres. It is an unnatural setting because of the facts that the Deputy described. It is part of a suite of opportunities that can allow a non-resident parent to start to engage with his or her child again in a safe environment but it needs to be able to extend into other services. There is a significant dearth of available, safe contact centres and points for parents. This has caused significant problems and stress. There is a lack of appropriate people available to be at that supervised place for issues that do not relate to child protection. Contact centres need more resources now and in the longer term as people move out of that and into shared parenting arrangements.
Ms Mary Roche:
When people get involved in this system, especially poorer people or people with literacy issues, it is very daunting. As the Deputy said, they are suspicious of the State and the agencies, so it adds trauma. A service that works would be properly resourced, professional at every level, and child and family-centred to support people to get resolutions. It has to be resourced. Communities and childcare have to be funded. The labour market has to be accessible to women who are parenting on their own. Fathers have to have access to their children. It is a whole suite of issues relating to properly resourced and funded public services.
Dr. Carol Coulter:
It is very inadequate. Supervised access can be a nightmare for parents whose children are in care. Of course, not all access is supervised; it can be at a relative's house or even going home for weekends. There is considerable variation in the conclusions especially when a family is going to be reunified. That happens much more frequently in our childcare system than in the UK. After a period in care, children may go home and they will lead up to that with weekends. I am not talking about that. Where the CFA is organising access and there can be logistical difficulties, access can take place in basically an office. It is not always appropriate. If it is supervised, people are being observed and if the final order has not been made - the final order will be many months after an interim care order is sought - they feel that everything they do with their child will come up as evidence in the ongoing child-protection proceedings. Contact centres, as they have been described, would be a significant improvement on what exists for people in the child-protection system compared with what they often experience now.
I have previously raised the issue of contact centres. As our guests may be aware, Tusla and the Courts Service have batted the matter back and forth whenever I raise it with them. Each states that the other is responsible and nobody seems to want ownership of who should pay for these contact centres. While I do not need to elaborate on it, my experience with people contacting me is very similar to that of Deputy Clare Daly regarding the section 47 investigations. People feel there are a lack of regulation on the experts involved and a lack of transparency. There is that inequality to which some of our guests referred in their presentations.
I was not aware that mutual recognition of arrangements will be affected by Brexit, which comes into absolutely everything. This week, we have been debating essential legislation in anticipation of a hard Brexit. Should the legislation we are dealing with in the Dáil this week and in the Seanad next week provide for mutual recognition of arrangements in family courts in the event of a hard Brexit?
My final question arises on foot of the point the Treoir representatives made. Deputy O'Callaghan asked about the potential implications. Do our other guests agree with a change to the law that would provide for automatic guardianship rights?
Dr. Carol Coulter:
We have not given the matter much consideration because it does not arise frequently. However, only last week one of our reporters attended a case where the placement had broken down and a young child was in care having previously been in the care of the mother. While I am not sure if the father was able because the court had not a chance to look at it, he was certainly willing to take responsibility. However, because he was not a guardian, the court did not have the legal basis to consider the father's position. Due to the fact that he fell just outside the threshold for legal aid, he was not legally represented and the issue of guardianship was not pursued as it should and could have been in the District Court by a lawyer representing him there and then. That is clearly one instance where that gap was very detrimental to the welfare of the child as well as to the rights of the father.
Ms Maria Corbett:
The particular difficulty from the Irish perspective is with the requirement for a country to be an EU member. There is not much we can do with the UK now becoming a third country. There is the prospect that the EU regulation might be amended to allow third countries to engage so there may be something in the future. The representatives of the Bar of Ireland might like to deal with what might happen with how the courts may engage given their closeness under the common law. There is uncertainty as to what will happen to some of the arrangements we have at the moment. Whereas today we use specific legislation, we will need to go back to bilateral or other arrangements. With some of the High Court cases on secure care - the special care orders where we place children from Ireland in the UK - there is a sense maybe there of the places not being available.
There is uncertainty. Children may be placed using other legislation, wardship and bilateral arrangements going back to what we had before the EU regulation. We are raising the matter because the EU regulation has many safeguards in place and has a clear structure. We are going from a position of clarity to uncertainty. From a legislative perspective, I am not sure what can be done in the immediate future. However, we can come back to the Deputy on that.
Dr. Ruth Barrington:
Our difficulty with the provisions of the Child and Family Relationships Act is that automatic guardianship is provided for if the unmarried father has lived with the mother of the child for three months before the child is born. At a very practical level, many young couples with low incomes who have a child have never lived together because they have no place to live together; she is with her family and he is with his family. As a result, there is no question of that applying. Even if they lived together, there is no formal registration of that guardianship because they can only be established through a statutory registration which is the property of one or both parents, but is not a public document; it is not a public record. At a more fundamental level, we have a problem with that provision because, essentially, the criterion for guardianship is the relationship between the mother and the father - the three months cohabitation - not the relationship of the father to the child as would be the case if they were married. We believe this is a deep injustice which should be rectified.
In the normal course of events, guardianship for unmarried fathers should kick in if they sign the birth register. People may ask questions about domestic violence. Domestic violence exists for married couples as well as for unmarried couples. That should not be a criterion for denying a father guardianship rights over the child. If there is abuse of those rights, then of course they should be removed, but the assumption should be that the father is the guardian of his child whether married or unmarried. Treoir would like to see the law changed to recognise that right of unmarried fathers.
Dr. Róisín O'Shea:
I can speak for the researchers with whom I work. We support Treoir's proposition that registration of the birth certificate should be automatic. We also agree that the rights should not be based on the relationship between the parents, but it is the right of the parent who produces the child, who creates the child.
Dr. Róisín O'Shea:
As researchers, we support Treoir's position. We need that legislative change to have automatic guardianship. It may deter the mothers from putting the father's name on the birth certificate, but that is another argument.
FRCs are operated by Tusla and are under its wing. The Kilkenny FRC trialled contact on its own initiative. There are 120 FRCs in the country and they have a little leeway to do their own thing to a certain extent. The Newpark Close FRC in Kilkenny trialled operating as a contact centre which meant that staff had to volunteer to come in on weekends or after hours to act as a point of contact. The 120 FRCs have the facilities to operate as contact centres. They also took part in a pilot with Barnardos and some of them were contact centres.
Returning to my original point, let us take existing State resources and look at the 120 Tusla buildings. We could figure it out if it is a question of funding staff who are on salary to stay a bit longer. Arc Mediation has a 57-page handbook for a model we want to give to the State and roll out in the 120 FRCs in 2020. That way, State-offered mediation, not private mediation, can sit in the middle of the resources available within the centres, which are extraordinary and have everything a family needs. It will also link to the courts to provide enforcement. The Mediation Act does that.
Mr. Seán Ó hUallacháin:
The Brexit issue has come up for consideration and is causing some disquiet. In reply to Deputy Ó Laoghaire, it is not necessary for it to be in the legislation currently going through the Oireachtas. Without getting too technical - because it gets very technical - there is a 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, known as the 1996 convention. The UK will continue to apply that convention but, within the EU, Brussels II bis takes precedence. If the UK is no longer in the EU, it will arguably not apply Brussels II legislation but it will apply the 1996 convention. That will resolve many of the immediate issues until some form of bilateral arrangement between the UK and EU emerges.
It is not a cause for alarm bells. It is a concern rather than a cause for alarm. The issue might become more serious as the years roll on if the UK will not apply decisions of the ECJ and there may be a greater divergence. There will probably be no great divergence for the first few months or maybe even years after Brexit between what will happen under the 1996 convention and Brussels II bis. A divergence could emerge over time and cause a particular difficulty, more for this jurisdiction due to our close proximity and historical connections to the UK.
Mention was made of the transfer mechanism under Article 15 of Brussels II bis and the fact that jurisdiction lies with the habitual residence of the child but it can be otherwise in exceptional circumstances and there could be a transfer to a better placed court if conditions are met. The 1996 convention will work out fine in the short term. Following the UK's withdrawal, some parts of Brussels II bis will not apply.
There is a 1980 convention for child abduction cases which is the other convention that was referred to. It deals with the civil aspects of international child abduction. There is again a broad similarity but there is something called a non-return order which ends the case under that convention whereas, under Brussels II bis, the court of the country where the child is residing must send the papers to the court of the country the child has been removed from and the second court can order the return of the child. That is again a minority issue but the 1980 convention has that provision.
There are issues. The Department of Justice and Equality has examined this and there is a hope that, in the short term, any divergence will not be significant immediately, but, over time, divergence could emerge. A connection has been built up because each jurisdiction has judges who deal in this area who do not wait to talk to each other by megaphone. They phone and email each other. There is direct contact between the judges with responsibility for this in each jurisdiction. They have conferences and get to know each other so there is good rapport, particularly between Irish and UK judges when they can speak English to one another. In the immediate term, good sense will probably prevail among the judiciary on both sides. That is the importance of contact and connection rather than megaphone diplomacy.
A residual area where there could be problems is the enforcement of maintenance. As I understand it, and I am subject to correction on this, there is not an avalanche of maintenance orders. I would have thought the figure was higher but it may be 250 to 300 per year. We are talking about approximately 20 or 25 a month. There will be a short-term, immediate problem if the UK leaves the EU on 29 March but, as I understand it - again subject to correction - the Department of Justice and Equality is considering some form of statutory instrument which will resolve that. It may not be there on 29 March but it will be there in May or June.
We will get over these issues. Perhaps the committee will invite us back in a year or two, or there may have to be other legislation. For the moment, it will not be plain sailing and there are concerns, but they can be dealt with in the short term.
There are two other indicators on this. We have to vacate the room in less than three quarters of an hour to allow another committee to take over. I ask Mr. Peelo and Ms Baldwin to respond to Deputy Ó Laoghaire.
Mr. Damien Peelo:
Mr. Ó hUallacháin mentioned the maintenance issue and I also want to speak briefly about the Good Friday Agreement, which aspires to have parity of rights for citizens on both parts of the island which needs to be protected. It is not currently enforceable that an unmarried father in Northern Ireland has automatic guardianship rights to his child across the Border. We can see areas where there is not parity of rights depending on where one lives on this island.
Ms Rachel Baldwin:
There needs to be more in-depth talks about guardianship. To clarify, the father will only have automatic rights if the couple has lived together for 12 months, including three months after the child is born. There will be issues if automatic guardianship comes about. Issues may arise in cases where a father is not involved, and does not wish to be involved, with the child. There will be complications, for example, getting a passport for the chid or if the child has medical issues and the father cannot be tracked down. One can bring an application to dispense with consent, for example, a passport, but there would be a problem in serving that if it is not known where the father is.
There are some practical issues. I do not disagree with Treoir's position on that but there are practical difficulties.
I agree with Deputy Clare Daly that this is depressing. I said last week that it feels as though we are living in the Dark Ages. We have heard the presentations but it could be 50 years ago. It is hard to believe this is going on in this day and age. I cannot imagine what that is like for the families and children who have to go through that trauma.
We could spend the morning talking about various different issues. We are living in the Dark Ages. Why are we still in that position? Why are we not up there with other countries? A part of me knows the answer but another part of me would like to hear some of the witnesses' opinions as to why we are stuck in this awful place.
The area Dr. O'Shea is talking about is one in which I have a strong and specific interest. I work with families on addiction issues and the related trauma. We do not work with the person suffering from addiction, only their families, and we can prevent a family going down the route of courts through the work we do in empowerment.
For example, one woman had left her home because of her son's violence. She came to us and as a result of her getting a good understanding of how to cope with it, she has now moved back in. It is amazing what one can do. I am sure Dr. O'Shea is aware of that.
I am also aware of, say, bad therapists and bad mediators.
I wanted to question Dr. O'Shea on that. How is that prevented? One must be so careful on all of that. If women, or men, are coming to Dr. O'Shea about domestic violence around which there is so much shame, is there something in place to address that the great work that she is doing?
Dr. Róisín O'Shea:
This is such a serious matter that sometimes one has to laugh because otherwise one would cry all day long. I would cry every day I go into a courtroom if I did not have a good sense of humour to keep my head space right.
First, I will tackle the mediation question. I totally agree with Senator Black. There is probably a lot of bad mediation going on. It is probably why Mr. Ó hUallacháin has a fairly negative view of some of the mediation. He could be right. I will give him that.
As for how we fix that, we need the mediation council. Let me put it this way. Senator Black could go out, stick a plaque on the wall and call herself a mediator right now. It is like the wild west. Auctioneers used be in the same space. I am sorry, Deputy Wallace. Was he ever an auctioneer?
Dr. Róisín O'Shea:
Basically, right now, anybody can stick a plaque on the wall and call himself or herself a mediator because there is nothing to say otherwise. The Mediation Act sets the groundwork for where we are in this space but a mediation council is needed. Someone who is thinking about using mediation, particularly coming from a conflict space the Senator is talking about, needs to know the competency of a mediator, the training standards of the mediator, and that there is a complaints procedure and that there is somewhere the person can go if the mediator does a bad job. If they meet Mr. Ó hUallacháin's mediator, the one that allowed the bullying, in all seriousness, they need to have a forum where they can make a complaint about the negligent behaviour of that mediator. It is important.
I will go back to what I said at the start. The earliest intervention possible - Senator Black hit the nail on the head - is exactly how we should be thinking. If families know that the State has support systems, they will think they will go to this mediator immediately. In the State sector, they go to the FRC, and the mediator starts working with them and sees addiction problems or mental health problems. Mental health is popping up in many of the cases I am working with. Then that mediator can reach out within the FRC and organise for that family, parent or child to get that support in the centre's rainbow of resources. I love the way Senator Black phrased it. When one helps people that early, it stops the conflict beginning to get legs and walk.
One of the pieces here is that we all know that people do not want to be in conflict. What I would disagree on is that once people get into the war zone of the court system - I did myself - one goes to war, one is encouraged to stay at war and one will keep fighting. I did; I will hold my hand up. What we have to do is try.
This discussion is about reforming the family law courts. I reiterate that we are starting the conversation at the wrong place. We start with how do we keep people out of the family law courts and how do we keep them appropriate supports. It is early intervention.
Ms Maria Corbett:
I have two comments. First, Senator Black asked how can we do it better and how are we here. I refer back to where we started in the proceedings, which was the need for a specialist court. Most other jurisdictions have a specialist court for child protection. We talked about facilities and buildings. However, if we can put that aside for a minute and think about the management of the system, a unified common system approach in child and family cases, both private and public, would make a significant difference because common rules would be applicable in those courts. At present, the District Court comprises 24 separate districts with their own rules. Having multiple courts within them, these are 24 districts with their own set of rules. Good practice that may exist in one place is not transferred to another. A common set of rules operating across the system would make a big difference and would address some of the delays that we see. It is not necessary delay, but duplication. One will have a hearing on the same issue across the country. Continually, the issues are being re-litigated. Issues such as access to Garda DVDs in evidence and how to deal with hearsay evidence are constantly re-litigated because it is operating at the District Court level.
If there was a common unified court system, cases could be moved from the District Court to a higher court when necessary. In the work that the child care law project did on complex cases, one could clearly see that the District Court was not equipped, both in terms of its rules in terms of discovery and other rules. It did not have the time. Those cases should have brought up. I am thinking, in particular, of cases relating to child sexual abuse allegations or other cases where many experts are brought in and assessments are needed. I suppose one aspect is to go back to that. The unified approach with a flexibility within the court structure would make a significant difference.
The other point is slightly separate. We have talked a lot about early intervention preventing people getting to court but in the child protection area, getting children from care back home is important. One of the examples of good practice in other jurisdictions is a family drug and alcohol court. The idea is that often if a child goes into care, the core issue in the family is an addiction issue, and the likelihood of reunification is not strong. To improve the likelihood of reunification, one works with the parent on his or her addiction issues. A different model is introduced. It is more a therapeutic-judicial model where the judge and the parent engage on the parent's addiction with the goal of getting the child back home. I merely bring that to the committee's attention.
Mr. Seán Ó hUallacháin:
In response to Senator Black, it is not entirely depressing nor are we in the Dark Ages. There are aspects of the system - I use the word "system" as the Chairman has said - but it is a vast system covering the whole country and covering all ranges of people's lives. That is what makes the family system somewhat different, perhaps even from the criminal system. One gets involved in every aspect of the person's life, not only the child-related issues but also the person's financial, company law, pension and housing issues. As was said earlier, a holistic approach is required.
There are problems but they are mainly down to resources because the system operates on close to a shoestring. I appreciate we had a bad recession ten years ago but I would have thought that at this stage we could consider investing more money in it.
We all seem to agree specialist judges with specialist training are needed. It is the one need that seems to be agreed. However, one need not necessarily spend all one's money on a new panoply of courts, judges and registrars. One needs the personnel but one has an existing structure which works quite well. In terms of the District Court, it has its rules. The Circuit Court has its rules. The reason we have a High Court is that it will define the law. Life is dynamic. The family law system is no different. One will not be able to write the rule book for all occasions. It is good to write the rule book but one must have cases going up to a High Court or even beyond so that it can state what happens in this area. For example, the Oireachtas passed legislation in 2010 governing civil partnership and cohabitation.
The problem with the cohabitation legislation - and if Ms Nuala Jackson was allowed to speak she would agree - is that there has been no analysis by the higher courts of what is to be done and how one applies the sections of that Act in deciding what type of compensatory maintenance or property adjustment order should be made if the court finds there is cohabitation and a financial dependency. That is a problem for the Circuit Court and for practitioners. While most cases might happen at lower court level, one needs the higher courts to set the law, and the structure historically works. Otherwise, all the District Courts and Circuit Courts will come at it differently. We have that structure. It is not so much a case of if something is not broken one does not fix it as that one does not necessarily have to reinvent the wheel. I am not saying that a tweak is required. It requires substantial resources and it is necessary to write new rules and train people. However, it can be done with resources within the existing structure.
In fairness to the personnel of the Courts Service and judges at all levels, most of them work very hard to provide some service. It is difficult with the burden that is placed on them. That is particularly true of judges and civil servants in the District Court. The burden placed on them is enormous and, with no disrespect to the Oireachtas, the Oireachtas keeps giving them more functions. If one is going to give people more functions, one has to provide more resources.
With regard to mediation, we all agree that we need to weed out bad mediators. At last we have a Mediation Act. As Dr. O'Shea said, there is now movement towards the establishment of the mediation council, which will produce codes of conduct for mediators. That will go some way towards resolving that issue.
I respectfully ask everyone to keep their contribution short. I do not want members to be left out. I will call Ms Mary Roche, Ms Rachel Baldwin and Dr. Coulter, who has said it will be very brief.
Ms Mary Roche:
Senator Black said it is depressing and asked how we got here. We referred to the recommendations of the 1994 Law Reform Commission report. It is 25 years later and there have been massive societal changes and everybody knows that. Some 12% of our population are immigrants. We have a walk-in service and women who do not speak English come to us for assistance with forms and so forth. Society has changed, for the better in many respects, and people are much freer. Marriage is going out of fashion to an extent. People have children by different partners. We have this at one level but, on the other side, there is a family law system that has changed very little, although we acknowledge that the legislation has improved. Then there is the issue that the system and families are not being resourced. Public services are in disarray. This shambolic system is what one has as a result.
Ms Rachel Baldwin:
On the question the Senator put to Dr. O'Shea regarding mediation and her personal knowledge and background, Mr. Ó hUallacháin got some pushback earlier but, in fairness, he would not deal with the day-to-day stuff of the District Court, as I do. I do not have the facts and figures that Dr. O'Shea perhaps needs, but I can speak about the domestic violence applications I deal with daily. I can only speak for myself but the threshold for obtaining one of those orders is fear. If fear exists and an order follows, such cases are not appropriate for mediation.
Dr. Carol Coulter:
We have seen lists of more than 120 cases in one day. In theory, the length of the court day is six hours, so it is not necessary to be a mathematician to work that out as three minutes per case. The crowding in some places is unbelievable. That is not universal and, in Dublin, it certainly works much better. It is just cannot be possible to devote adequate attention to all of the cases, even if many of them are adjournments, for mention and other technical things that have to be done.
There is a need in the District Court for resources to be put into case management so cases can be planned, people know when they are coming up, and they know the documents they must have and the reports that must be in. In a handful of courts around the country, judges attempt to do that, but they are in a minority. That goes back to the first question the Senator asked, as to why we are here. Family law has been the poor relation of the legal system for far too long. It does not involve crime, which gets headlines in the newspapers, or money and commercial transactions, by and large, and those cases, rather than the welfare of families, have been prioritised in our court system through the decades.
It is more than 20 years since the Courts Service's special committee, headed by the former Chief Justice, Susan Denham, recommended a family court, which means not a physical structure but an organisational structure. That would allow for coherence, specialist judges, as we keep saying, and case management. It would mean that if a decision is made about the hearsay evidence from a child in a District Court, or preferably if it is made by the High Court as to how it happens, one will not be going back to a situation where every time the issue arises in Donegal, Limerick, Dublin and so forth there are a couple of days devoted to arguing about it all over again. That type of coherence must be brought into the system. It has been sought repeatedly. I understand the heads of a Bill are lurking or are in preparation. I appeal to all the members, as legislators, to push the Minister and the Department of Justice and Equality to bring forward what is in process in the Department and ensure it is enacted as quickly as possible.
I will be brief. Mr. Ó hUllacháin spoke about the site in Hammond Lane. I believe the OPW paid approximately €4 million for it some 20 years ago. Does he know why it was stalled? Has he ever challenged the Government about it?
I will ask a number of questions together as otherwise we will never get out of here. Mr. Ó hUllacháin spoke about the need for increased funding for the Legal Aid Board to make it fit for purpose. Everybody agrees with that, but has a cost analysis been carried out on it? What exact amount would be required to make it fit for purpose?
Dr. Coulter spoke about in cameraproceedings. I am aware she does much work in that area. She made the point that currently the potential fines are scaring people from covering the proceedings. Has she any easy fixes as to how the system should work to bring about more positive outcomes? There has been much talk about fathers' poor representation or poor outcomes. Is thein camerasituation impeding that? Conor O'Mahony was jumping up and down last week about the chilling effect of the in camerasystem. There probably are no easy fixes, but what are Dr. Coulter's thoughts on it?
Mr. Seán Ó hUallacháin:
The short answer is that I believe Hammond Lane has been stalled due to finance. While it was purchased 20 years ago by the OPW, it came into the ownership of the Courts Service in 2015 or 2016. Family lawyers in the childcare area were prevailed upon to move into the Bridewell courts as a temporary measure, much against their better inclination, because they were told they would be in Hammond Lane by 2021 or 2022 at the latest. That is the line that was sold. We did not believe it but we bought into it.
It moved on and, as I understand it, planning and building estimates have been obtained. I have heard headline figures, but I do not know how accurate they are. The figure is €80 million, but as it is said this is not enough, it is back to the drawing board. We have made representations on the issue directly to the Courts Service, but we have not gone beyond that. We have tried to deal with it in a positive way and I hope it will happen. We have not gone shouting and roaring, but that is where we must go next in lobbying the relevant Ministers. It is a vacant site and if it is only finance that is stopping it - I do not want to overstep my position - surely the money could be found somewhere to build what would be a very important structure. It would be the facility for family law in the Dublin area for a long time to come, a century at least, but the project has definitely stalled, as there has been no progress. This means that the other buildings which were starved of funding in the recession and in anticipation of the Hammond Lane building being constructed are getting worse, particularly in terms of overcrowding. We are at crisis point in respect of the Hammond Lane building.
I do not have figures for the Deputy for the civil Legal Aid Board as we have not carried out a cost analysis, but it is clear that the solicitors and administrative staff of the Legal Aid Board cannot cope with the current volume. As somebody mentioned, the income threshold in order to qualify is quite low and must be looked at.
Dr. Carol Coulter:
On the point made by Dr. Conor O'Mahony, the in camerarule correctly is in place to protect the privacy of people who are dealing with extremely sensitive and difficult matters. However, it has been interpreted, particularly by the Child and Family Agency, in an overly strict way in terms of access to information, particularly the kind of information from specialist research institutions such as universities. The Act introduced in 2007 specifically allowed a number of nominated bodies to attend family law courts and report on family law cases, subject to the anonymity provision. That did not extend outside the courts, for example, such that if any work needed to be done of a research nature involving children in care specifically, it was not covered by the legislation. There is certainly room to look at how bona fide researchers, subject to a set of protocols and controls to ensure there would be no invasion of the privacy of the families and children concerned, could have better access to families and children in order to inform us all on how practice might be improved.
Dr. Barrington spoke about unmarried fathers having no rights, but they do in Northern Ireland. I presume it is the same in other European countries. What is the current state of affairs in that regard? She has said fathers' guardianship rights should kick in when they sign the birth register and argues that persons who are not married are being discriminated against. Do we require legislation to automatically fix this problem or is there a quicker way of doing it? Dr. Coulter spoke about pushing Ministers to go places, but if the delegates believe their job is frustrating, they should come here for a while. Things happen very slowly and the Department of Justice and Equality is one of the slower parts. Could work be done without legislation? We should bring forward legislation where it is required, but what improvements could be made without legislation?
Many weaknesses in the system have been pointed out, while the contributions have been very informative. We are learning more about this issue and will produce a report. As there are so many problems in so many areas, what advice would the delegates provide for us as legislators on how things could be parcelled up? This area is so diverse and there are so many parts it is a bit mad. How much could we do without legislation?
There has been mention of introducing specialist judges and better training. Surely there are some judges who are better at the job than others. Could they be identified? They could concentrate on the area more if the delegates want to see specialist judges. That would be in preference to waiting for this wonderful process to be put in place. Could we do things in that area to bypass the long wait for everything to be perfect?
Dr. Ruth Barrington:
The Deputy asked if something could be done without legislation. A start could be made in one area. When Deputy Burton was the Minister with responsibility for social welfare, she oversaw the passing of the Civil Registration Act 2014 that provided for the father to be named on every birth certificate. The legislation was passed, but the provision has not been commenced. I understand the General Registry Office has argued it does not have the resources to do it, but this is the last country in western Europe without the requirement that the father's name be on the birth certificate of a child. In a very concrete way, a step could be taken to recognise the rights of all fathers with respect to their children. We argue we should go a step further, but that would require legislation. I am referring to making the person registered as the father of a child his or her automatic guardian, unless there are circumstances that suggest he is unfit to be such a guardian. Steps could be taken without legislation, but ultimately some new legislation would be required. This is the place where such initiatives must be taken. I know about the backlog and difficulties, but clearly other legal steps must be taken to improve the functioning of family court services.
Mr. Seán Ó hUallacháin:
I appreciate that things can move slowly, but sometimes that is for a good reason, while at other times it is not. Much could be done with the family law system that would not require legislation. To a large extent, that is the undercurrent of the Bar Council of Ireland's submission. There is a requirement for the Government to decide to spend money on this, but, unfortunately, in the world in which we live, money is always tight. Nevertheless, it needs to happen. Without boring the committee, I again argue that the facility on Hammond Lane must be built now, not in five or ten years. It would not just comprise courts as it would also have family-friendly spaces, spaces for mediation and the Legal Aid Board. It would have areas for social workers, as well as play areas and cafés. It would be a properly functioning environment and must be built.
In Dublin and perhaps Cork the presidents of the various courts more or less identify areas and judges self-select. As a result, we tend to get judges who want to work in particular areas. I am not saying I would be any better, but there is a need for training for the people concerned. It is not that they are bad in themselves, as most of them are very good at what they do, but resources must be applied to provide specialist training. The judges must be left in an area for two years, whether it be under the 80:20 rule mentioned by Dr. O'Shea or 100% of the time. That would bring consistency, which is key in my experience of litigation. If the practitioners know where judges are going, they can advise their clients accordingly.
Unless the judge is not applying the law, such that one has to appeal, there is a much more streamlined approach, there are fewer time delays and there are fewer trials running to see what a particular judge will do with this topic. That can be done without money but one does need training. Training takes time and money but the Hammond Lane building must be built.
Beyond that, it is difficult to know. I do not want to be Dublin-centric or Cork-centric but once one leaves Dublin and Cork, it is a much bigger issue that probably requires far more extensive analysis of whether existing court buildings could be used more efficiently for courts and mediation services or whether time and money must be spent building new buildings. I hope this would not be necessary and that the money could be spent on existing facilities, whose use and the personnel within them could be maximised. In Dublin and Cork, this could all be done very fast if the Hammond Lane building is built. I appreciate that would involve a time lag. Outside Dublin and Cork, it would probably be slower but it would not have to take forever. It might take a year but it could be got up and running. The legislative changes, if necessary, can follow.
Dr. Róisín O'Shea:
The members are politicians and know that public pressure brings about change. When it reaches a certain point, it results in motivation. The members here are not mainstream. As Deputy Wallace stated, a great amount of effort could be put in but if the larger parties cannot be convinced to come with one, the work will be much more difficult. What has happened is that the legislation has actually progressed faster than our systems have moved on.
We must commend the extraordinary work done by the former Minister, Alan Shatter. He introduced incredible changes. At the end of May, I will be presenting in Canada on domestic violence in the District Court. When I was there last year, the attendees said they could not believe the legislative changes in Ireland, including same-sex divorce. We have jumped and jumped. Our politicians are actually doing a good job. Does anybody normally say that? It is the truth. A good job is being done here on the family law legislation that is needed. What is happening is that the core systems — those big systems — take time to change.
Let me outline the sea change we have to see. I am not criticising the legal profession because it has a key role but it is a very old institution. The public is very used to the idea of going to legal professionals when they get into trouble. Where did I go first when my marriage ended? To a solicitor. Why? It was because I automatically believed that is where one goes. Why did I stay with the solicitor? It was because I thought I felt protected. Why did I feel protected? I am referring to what brought me here. Let us not point fingers at judges, solicitors or barristers but at ourselves fairly and squarely and to the consequences if we, as a society, do not start having a conversation about what is best for our children and us and where we should go, and if we cannot figure out the approach on early intervention. We and those who also gave testimony should try to set out a very short checklist of what we believe politicians could do right now. I am on the board of the Mediators' Institute of Ireland. I convinced it to put up half the money to co-fund with the Irish Research Council research on child-inclusive mediation. I got both to agree and they came up the money. It will start this week. The researcher is Madeline Tracey from Waterford Institute of Technology. She was a successful candidate. Senator Black asked earlier why we are here. We are here because we are not doing enough research. I support what Dr. Coulter was saying in that we need more data coming out of the courts to inform what we are doing. We need to use those data and also examine what is happening elsewhere. As Dr. Ó hUallacháin said, we do not need to reinvent the wheel. Maybe we need to identify more closely what politicians can do here.
I thank Dr. O'Shea. This politician has but one remaining task, that is, to invite Dr. Coulter and Ms Corbett to decide which of them is to respond. Only a single sentence will be allowed because the advance guard of the next committee is here already. I have a job to wrap things up. Ms Corbett is to have the final word.
Ms Maria Corbett:
In its final report, the committee could ask what could be fixed only by a specialist family court. There are amendments to legislation, budgetary issues and infrastructural issues to be considered but some matters actually require a specialist family court to fix. The committee needs to divide up its considerations in that way. It is just a suggestion.
Ms Roche mentioned a form that is only used in Dublin and Cork. It gives guidelines. Reference was made to parental guidelines. Am I being naive in thinking judges could be given guidelines as to how they should become more child-focused given that everyone is in agreement that there is not enough emphasis on the child? Would it make sense?
I appreciate that another committee is about to start. I thank all the witnesses. Their submissions were very comprehensive.
I have two brief questions for Dr. Coulter that may have been answered. I spoke to Dr. Conor O'Mahony when he was here a couple of weeks ago. I remember studying family law in Trinity. I recall the issue of the in camerarule. Reference was made to a dedicated reporting body. I support that. How would it be structured? Who would run it? What would it entail? How could we make it workable? Would it be through the court system or Department? Would it involve separate legislation? I am interested in knowing the detail on the dedicated reporting body because we need to move on it. It is holding a lot of this back.
I have a separate point, on the Bar Council of Ireland. Reference was made to the High Court and how it deals with complexity. An individual who knows more about family law than I do said an excess of High Court time is spent on family law at times. Could the delegates comment on that? Is there a way of displacing many of the cases back more to court rules?
Dr. Carol Coulter:
At some point, I would be very happy to speak to the committee or any individual member about this in much more detail because it cannot really be answered in a couple of sentences. The experience of other countries has been that where the media are permitted to attend family law proceedings, which is the case in a large number of countries, there remains very little coverage and no comprehensive coverage of family law proceedings in a balanced way. This is because the media tend to focus on high-profile cases where, if permitted, they can identify the families if they have a particularly high profile or if they are celebrities. The bread and butter family law proceedings, which are what most people experience, never get reported by the media in general. Only a small selection of judgments are published; the vast majority of happenings are not necessarily covered. This relates to the issue of information, which was raised by Treoir. It means information is not readily available. I am happy there is now some international interest. The model has been developed through a series of accidents. A paper on this on our website describes how our project came into being.
It is able not only to publish reports so that cases from the general public are described on a website accessible to everybody but also to collect data that can be the raw material for research to examine trends and developments which we hope will lead to recommendations. As to what further mechanism might be used to ensure that can continue after the end of our project in two years' time and which only deals with child protection, I hope it would be an integral part of legislation providing for a family court in order that transparency could be assured within any new family court. Apart from anything else, the European Convention on Human Rights, and the jurisprudence from that, requires that there be accountability, particularly where the State is involved in family proceedings so that it is not allowed to take action in respect of families without people being aware of what is happening. I would be very happy to go into it in a lot more detail on another occasion with individual members of the committee.
Mr. Seán Ó hUallacháin:
Deputy Jack Chambers' question is very pertinent. I do not think the High Court is used excessively. The statistics in our submission, taken from the Courts Service report of 2017, would indicate that approximately 100 odd cases, excluding child abduction which is a separate category, come before the High Court every year. At the moment in Dublin, there are up to seven dedicated District Court judges and three Circuit Court judges doing exclusively family law every day. That is up to ten judges a day in Dublin in the lower courts dealing with family law alone. There is also a higher emphasis on that in Cork. Around the rest of the country the District and Circuit Courts apply time to it whenever they can, whenever their lists are structured accordingly. Circuit Court judges do occasionally hear appeals but in terms of time and case load, no-----
Mr. Seán Ó hUallacháin:
Not really. There was a time when I was a bit younger when people would bring custody applications to the High Court. That does not happen any more. They either form part of the judicial separation or divorce in the Circuit Court or they are brought as stand-alone applications in the District Court. Most of the cases in the High Court, with probably one or two honourable exceptions, merit being there, having regard to the issues involved, the complexity of the financial matters. It is very important that the High Court hears appropriate cases in order to set the legal precedent.
That is it. On behalf of the committee, I thank Dr. Carol Coulter and Ms Maria Corbett from the Child Care Law Reporting Project; Mr. Sean O'hUallacháin, Dr. Sarah Fennell, who had to leave a little earlier, and Ms Rachel Baldwin from the Bar Council of Ireland; Dr. Róisín O'Shea director of Arc Mediation; Dr. Ruth Barrington, Chairperson, Mr. Damien Peelo, chief executive officer and Ms Mary Roche, policy officer of Treoir. I wish each and every one of them the very best and thank them for their contributions.
The joint committee will adjourn until Wednesday, 13 March, when we will have the third of our hearings in respect of family law.