Maria Byrne (Fine Gael)
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I welcome the Minister, Deputy McEntee, to the House. The debate on the Bill is to adjourn at 5.30 p.m., if not previously concluded.

Michael McDowell (Independent)
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I move amendment No. 1:

In page 10, between lines 16 and 17, to insert the following: “(3) The provisions of this Act relating to the Family District Court shall not come into operation unless a resolution approving the making of an order in that behalf under subsection (2) has been previously approved by each House of the Oireachtas.”.

I welcome the Minister here today. To begin, I wish to emphasise that although I am a member of the barristers' profession, I am not a family lawyer in the conventional sense. I have done some family law in my time. I found it to be most challenging, emotionally committing and difficult work. I admire those who specialise in it, the work they do and the way in which the courts function in respect of family disputes. The second matter I wish to emphasise is that I am not approaching this from a conservative point of view. I strongly believe that a separate family law jurisdiction and divisions in each of the courts is the right way to go.Family law disputes should not be dealt with in backrooms in courthouses where people have spent the whole day waiting for TV licence spongers, dangerous driving cases and criminal cases, for example, to be dealt with. There is an overwhelming argument to be made for dignity, specialisation and compassion for those involved in family law disputes.

I am a passionate believer in mediation. For any family law case, except divorce proceedings, which are constitutionally required to be dealt with in court rather than as a private matter between the parties, mediation should be done. Going to court in family law cases is often stressful, often expensive and potentially hugely damaging to the parties involved, often without any particularly beneficial outcome. In the last analysis, the great majority of these disputes should be dealt with by agreement and reasonable compromise between the parties involved in family law breakdown proceedings.

The reason I tabled amendment No. 1 is not stick-in-the-mud stuff. It is not designed to obstruct the legislation. I looked at the legislation and realised that if I spent a week tabling 100 amendments, the same point I want to make through amendment No. 1 could be made, which is that there is a very serious question mark over the extent of the jurisdiction it is proposed to confer on the District Court in family law matters. In that regard, I am mindful of what the Bar Council stated by way of its concerns with the Bill. I refer to courts that operate traditionally - not necessarily in family law matters - in a summary way, have a significant caseload and cannot spend a week or two weeks looking at one individual case. When it comes to a family law case in which there are a variety of issues, such as custody, maintenance and division of family property issues, it simply is not possible or desirable that it be dealt with in a summary manner. The standard of judicial involvement and judicial engagement and the availability of State resources to enable excellence in the judicial function should be the same in all family law cases in one sense. Why should a less well-off family get different treatment as to custody, maintenance or division of family assets or whatever from a family that is better off or has bigger assets and where the parties to the marriage have substantial private fortunes? It does not seem to be a good idea that there should be, to go back to the days of my childhood, first-, second- and third-class carriages in the train. Everybody is entitled to a first-class service from the State when their case comes to court.

In its submission, the Bar Council said it was primarily concerned with one aspect of the Bill. It has genuine concerns about the reorganisation of the jurisdiction of family law proceedings such that most of the divorce and judicial separation proceedings will be heard and disposed of in the family District Court. The Bar Council does not think this is in the best interest of families who find themselves interacting with the family justice system and believes it will create a two-tier family system. It made the point that although the proposal to have most of the divorce and judicial separation proceedings disposed of in the District Court is undoubtedly well intentioned from the point view of reducing costs and the like, it fears that, far from serving the interests of families, the allocations of those often complex and challenging cases to the District Court, a court of summary jurisdiction, is likely to have the unintended effect of disadvantaging the very persons whose interests most acutely require to be defended.

If there is a very wealthy family living in a very wealthy tree-lined suburb in Dublin and there are family law differences between them, the parties to that marriage are usually in a far better position, in a huge number of ways, than a family who is at the edge and at the bottom of the social ladder, with limited resources and limited options. The dispute as to who gets the trophy home in Dublin 4 or Dublin 6 is one kind of dispute but the dispute as to what happens to a family that cannot afford any accommodation at all in its present circumstances is quite different.

The Bar Council’s concerns in this respect deserve to be considered. Without slavishly adopting its position, what I want to bring about and what this amendment is proposing to do is to create a period of time in which the Houses of the Oireachtas would consider, first, the points that the Bar Council made in respect of the family law jurisdiction being conferred in the District Court, second, whether the property valuations limits being contemplated for the District Court jurisdiction are or are not appropriate and, third, require clear proof that all of the necessary underpinnings to the family justice reform – this is a radical Bill in terms of family reform – are in place.

If we proceed with the commencement section as it now appears, a Minister – it may be this Minister or somebody else, who knows – can, by signing a statutory instrument, press the button and various bits of the Act come into operation. Although the commencement section allows for different aspects of the Act to come into effect in different places and for different purposes, and I acknowledge that should give some considerable degree of flexibility, before we engage in what is a fairly radical and dramatic transformation of the various courts’ jurisdictions, there should be an opportunity for the Members of both Houses to look at whether adequate facilities and adequate systems have in fact been provided before somebody says that the District Court is now in operation, it will operate in this or that premises in family law cases and asks if it is adequate. I would prefer for whoever occupies the position of the Minister for Justice to be under an obligation to come into the Houses and, before pressing the button to give the green light to this major transfer of jurisdiction to the District Court in family law cases, to prove to us to our satisfaction, as legislators. that the Minister and the Courts Service have put in place the resources, facilities and support staff and that the required number of district judges available to discharge this function are in office. We should put a positive obligation, in other words, on the Minister, before exercising this commencement power, to come before the Houses and say that this is radical and it will have serious effects but he or she has demonstrated to us that if the Act is commenced in two or three months’ time, there is, for example, an adequate family law court in Carrick-on-Shannon, the system is being operated to a satisfactory extent, the management proposals by the various senior judges in charge of the family divisions of the various courts have got all the resources necessary and that people whose disputes are put into the District Court are going to meet first-class facilities, have first-class availability of time to deal with their cases and will not be seen as people who are bundled into quick turnover summary procedure where their cases receive less consideration than they would if they were more well-to-do or operating in a more serious court.That is what this amendment is about. Rather than challenge the fundamental principle of the Bill, I just want to put in a safeguard to ensure that the high-minded ambition of the Bill to deliver a first-class service will in fact be delivered on before somebody says the District Court, which is a court of summary jurisdiction in most respects, is to take over the adjudication of very complex and far-reaching family law disputes. Those who are at the lower end of the socioeconomic ladder are the most vulnerable to poor quality administration of justice. Those who are in Shrewsbury Road or wherever are in a far better position to deal with the legal process than people who are at the very fringes of our society.

Sharon Keogan (Independent)
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I support Senator McDowell's amendments. It is important to keep the aspect of the remit of the family court in the Oireachtas for accountability purposes. It is crucial in reviewing this legislation that we acknowledge the countless family law practitioners and the Bar Council, who have stated that this proposal to add divorces, judicial separations and cohabitation applications to the workload of busy district judges would lead to a greater delay and more interim hearings, which would add to an eventual legal cost. The chair of the Council of the Bar of Ireland says that the Bar of Ireland is not aware of any concerns expressed by those involved in the family justice system about the allocation of jurisdiction between courts. This seems to be a solution in search of a problem. Transferring cases from the Circuit Court to the already busy District Court poses a significant risk. This risk extends beyond delays in judicial separations and divorce cases. It may also result in delays in other civil and family law matters, including domestic violence, guardianship, custody, access, maintenance and child care cases.

Additionally, Safe Ireland, a group which represents women and children's safety and well-being, is very concerned that the unintended consequences of this dramatic rise in monetary values, together with the significant expansion in the types of cases which may be heard by the family District Court, will result in the new family district courts being overwhelmed with work. They are concerned there will be no net improvement and possibly even a deterioration in the current challenging family law system. The jurisdiction of the family District Court will encompass the large majority of family law cases of all types when this law is passed. If this legislation creates greater workload for the courts system, it may mean in practice even more delay and attendant distress and uncertainty for women and children awaiting hearings on urgent family law matters involving children. This is an outcome which is good for no one, including Courts Service staff and judges.

Helen McEntee (Meath East, Fine Gael)
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I thank the Senator for his overall support for the objective here, which is radical change. I do think it is needed and necessary. To the Senator's point, we have a situation where family law matters are often put at the end of a list. They are not reached by the end of the day and the next sitting is months later. As public representatives, all of us have countless people coming to us saying they cannot get a hearing to deal with the issues they want to deal with. We need to make sure we can address that while addressing other issues as well.

The overall objective of the Bill is that a separate court would remove those challenges, that we will have sittings only dealing with family law at all jurisdictions, that there will be judges specifically trained in and focused only on family law who are not dealing with fines, road traffic incidents, petty theft or crimes, and that family law gets the focus it deserves and works for the families as it is supposed to. There are fantastic people working in our family justice system across the legal practitioners, and judges who are specialising in this area already. By putting in place these structures, we can do much more to make it a more family-friendly environment.

I have engaged directly with the Bar Council and the Law Society, and with many of the organisations that deal with victims of domestic and sexual violence. Many of those families have that issue to deal with as well as a separation. I have taken on board their considerations specifically around jurisdiction. It is absolutely not the intention of the Bill that all cases would be heard automatically at the District Court. Opening up the jurisdictions means that the simpler, less complex, non-contentious cases could be determined at the lowest court.

To the Senator's point that there was a two-tier system and that people will not get the best service, at the moment people are saying to me that these cases are costing them a fortune and could be dealt with in a much easier, quicker manner. It should be available to those people to access the costs at the lower level and in the District Court where matters can be resolved in a much easier way. There is nothing in this to prevent simpler cases from going to the District Court, or for more complex cases to go to the Circuit Court or High Court. If it is decided by the judge or legal practitioners that a case needs to be moved or can be dealt with at a more appropriate level, that can be taken into consideration.

The concern is that this is not clear enough in the legislation. While I had hoped to have amendments on this Stage, they are not ready yet. I am working on amendments to make it absolutely clear that the jurisdictions and the objective here does not mean that every single case will start in the District Court. There are cases that can go directly to the High Court or to the other courts. It is important that if a case starts in the High Court and it is more appropriate to the District Court, the decision can be taken with the agreement of the practitioners but also the judges and, vice versa, if it starts in the District Court but needs to be dealt with in the High Court, that can be taken into consideration also.

It is important to note that the family District Court will have dedicated trained specialist judges. They will not have all of the other issues to deal with as well so there will not be the massive backlog that we currently have. I fully understand the concern about how we know everything will be up and running when we enact this. We need to apply the same logic to this as we do to any other legislation. Last year I enacted the Criminal Justice (Miscellaneous Provisions) Bill, one of the elements of which was the introduction of civil orders. These are really important to make sure that where there are stalking behaviours, they can be stopped at the earliest stage possible without having to reach the criminal threshold. While that legislation was enacted last year, the commencement order was not signed until September because I wanted to make sure that the courts were ready, and the structures were available so that when it was commenced people would be able to go directly to the courts. The same will apply here.

The work has already started to make sure we have the ability to put in place new family courts at District, Circuit and High Court level. Some 30 new judges have been allocated to all jurisdictions over the last two years. The budget this year, €11.1 million, will allow for continued expansion of staff not just to support those judges but to allow for stage 2 of the judicial planning working group, where 20 more judges will be added at all levels. That expansion will allow us then to make sure we have the Judiciary and supports in place to be able to put these separate jurisdictions up and running. As well as that, there is investment into the modernisation programme, making sure it is not just the individuals and staffing but that our systems are operating effectively as well as making sure we have investment in the overall infrastructure and buildings. That work is under way. The objective here is not to put everything into the District Court. Where that clarification is needed I will be bringing amendments on the next Stage to make it absolutely clear. It is not the case that this would be enacted where we do not have the people, the Judiciary, and the structures in place to respond to it. I have made it very clear to those involved that this will not be stood up until we know that we can respond in the most adequate way possible. I do not think it is necessary to add another layer whereby this Bill passes and then a Minister has to come back to get approval, essentially, to stand the Bill up and move things along.All the building blocks are being put in place to make sure we will have the ability to stand this up by having the resources, investment and people in place.

It is for those reasons that I cannot accept the amendment, but I understand why it was put forward. I am absolutely confident the amendments I will bring forward will clarify the concerns that have been raised directly with me. As stated, the building blocks and resources are being put in place to ensure this will not be stood up until we are certain we will have the desired effect. Families are in a difficult scenario and this is often the most difficult time in a person's life. Where issues can be resolved in a straightforward way, I want that to be able to happen such that it will not cost them a fortune whereby they end up much worse off. Where it is challenging and complex, I want them to be still able to access the High Court and go through the same system they currently have available to them.

The Senator mentioned mediation. Another objective here is that where it is possible to remove cases from the courts, that mediation will be available to people. I am bringing forward amendments today to make clear, where there are domestic violence cases or where abuse is happening in a relationship, that no one will be forced, whether directed by the judge or before that, to go into mediation where it is clearly not appropriate.

Michael McDowell (Independent)
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I welcome the Minister's assurance that she sees that a policy of just shunting cases into the District Court is not appropriate, and her indication that she intends to bring amendments on the next Stage of this legislation to that effect and make sure it will not be used as an economic dumping ground for a great volume of court work.

I fully take the point that if two people have decided on a consensual divorce, there is no reason for them to go to the Four Courts and engage the activities of a High Court judge if there is no genuine concern, for instance, about the children in the family or if there is no requirement for much intervention by the courts or much caution about the result as far as the courts are concerned. I fully take the point that such parties should have a summary procedure whereby they can just get what they have agreed put into effect cheaply, efficiently and locally, if that can be done.

I also take the point the Minister made about parties to domestic violence and the like being forced into mediation. It would be a big mistake if the legislation were to shoehorn people in those circumstances into informal arrangements where they had to confront each other again without any real protection. I do a fair amount of mediation - I was involved in mediation all morning - and if parties do not want to be there, not only is it pointless, it could also be seriously damaging.

That said, I do not know precisely what types of amendments the Minister has in mind. This Bill dates from 2022. It has only reached Committee Stage in this House today. I am not criticising the Minister at all for being willing to amend her own Bill in the way she is proposing and in the way she has outlined she intends to do on Report Stage, but one thing that has to be borne in mind is that Report Stage is usually not the best point at which to consider something complex because a backward and forward exchange of views is not possible unless the House agrees to recommit a particular amendment to committee for the purpose of dealing with it.

The Minister talked about purpose-built courthouse facilities and so on. I have noticed over the past 40 or nearly 50 years the hole in the ground beside the Four Courts where the family law building has been scheduled to be built. I am especially conscious of that hole in the ground because when getting it vacated, there was no compulsory purchase order power in the courts and Dublin City Council was not exactly helpful in getting the site. There was one doss-house in the middle of it, which had been used by drug addicts and drinkers for about 15 years, in my recollection. It is now all clear and should be available for construction soon, which I hope will happen.

On a general point, our system of justice is good when it works well, but one thing it does not do well is act with speed. In the American or British courts, people who have been accused of serious crimes would have been convicted by a jury and put into jail in the space of time that they would still be on the waiting list in our prosecutorial system. There are fierce delays in simple District Court cases now in the context of civil and criminal matters. Matters are put onto lists six months, one year or 18 months away. We cannot be complacent about the delays in our system.

To go back to the point I want to emphasise, I am glad the Minister is going to put down amendments to deal with some of the concerns the proponents of this amendment have raised. I would like to see those amendments, obviously, but we will see them in due course. The point remains that if someone does not have resources and is at the bottom of the social and economic ladder, the consequences of imperfection in the courts system as regards family law disputes are more pronounced than they would be he or she did have resources, and I would hate the system to be such that the wealthier a person was, the greater would be the chance that he or she would get a first-class system in a superior court. Nothing is as tragic as parents who are divided as to access or custody of their children, and there are not two classes of children. There is only one class of child and there is only one class of parent, too, in those circumstances.

For that reason, it is reasonable to demand that positive proof be put before this House and the Lower House that the reform of the system has been accompanied by the allocation of resources sufficient to make the administration of justice not a two-tier matter but a single standard of excellence before we allow any Minister - it could be anybody - to press the button and give a green light to what could otherwise be an unwise increase in the volume and, therefore, a diminution in the time and resources available to family law cases by reason of vesting a greatly enlarged jurisdiction in the District Court.

Helen McEntee (Meath East, Fine Gael)
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At the moment, despite the work of the wonderful people who work in family law, the system does not work for people. Families are waiting too long and seeing cases adjourned because it is not a family-friendly environment and the system was not built for these difficult situations or even for the less complex cases. Thankfully, we are starting to see the effect of the additional judges and the investment in our courts. Only in the past year, the number of District Court and Circuit Court sittings has risen, as has that of criminal prosecution outcomes. Likewise, in family law, the number of cases that have been finalised has increased by about 10% in that short space of time. With the greater number of staff our Judiciary has and also the 20 on top of that, I am confident that we will start to see progress on working through the backlogs and that it will provide space for these courts to be established in order that there will be judges who deal solely with and are focused on family law cases. That is what families deserve.

In respect of Hammond Lane, I am pleased that during the summer - I think in July - we were in the courts to move it on to the next stage.It has planning permission, and I am pleased that we are making progress. I hope we will start to see building at the big hole in the ground I pass every day when I go home from Dublin. It is a fabulous structure. Let us consider circumstances where families are currently located in buildings that were never meant to be courts, where people who are going through difficult times are facing one another and have to negotiate in corridors and out on the street. It is not appropriate. It is not where any of that should happening. I want to see this legislation passed and I want to make sure that when it is enacted, the resources, structures, infrastructure and funding will be available. That is why this work has been happening well before the legislation is enacted.

I agree that it has taken longer than I would have liked even to get to this point. We are not just starting to work on the amendments I had hoped to have for Committee Stage, we have been working on them. To get to the Senator's point, it is complex. It is not straightforward. Even providing that clarification has been more complex than we expected. However, I am determined to ensure that those who are working in the family law space are confident and happy that they will be able to do their jobs to the best of their ability and above all, that families affected by separation and in instances where there is abuse are protected and supported every step of the way.

Michael McDowell (Independent)
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On the construction of a major family law complex in Dublin, I do not know whether one will be sufficient. Half of the population lives in the greater Dublin area. However, even if it is built, my memory of the Criminal Courts of Justice at Parkgate Street is that is was done on a public-private partnership, PPP, basis. Although people in the Department of Public Expenditure, NDP Delivery and Reform were sometimes dubious about the PPP basis of that building, it was built on time and within budget and is being serviced by the provider for a limited period before it becomes State property. Without being in any way flippant, we do not have to go much further than the children's hospital to realise what can go wrong when we allow non-PPP project management to take over major building projects of this kind. If the Minister is moving on to planning permission for the Dublin family courts complex, I urge her to learn a lesson from the children's hospital situation and ensure she has contractor who will deliver the whole thing on time, with all snags, maintenance and the functioning of the courts being their problem for a limited period, rather than find herself in the position in which the Government has found itself in respect of the children's hospital project.

Maria Byrne (Fine Gael)
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Is the Senator pressing the amendment?

Michael McDowell (Independent)
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I am.

Maria Byrne (Fine Gael)
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Amendments Nos. 2, 10, 26, 33, 39, 54 to 56, inclusive, 59, 64 to 68, inclusive, 79 to 82, inclusive, and 107 to 111, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Helen McEntee (Meath East, Fine Gael)
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These are technical drafting amendments. Amendment No. 2 takes account of the change of title and responsibilities of the relevant Minister since the Bill was published from Minister for Public Expenditure and Reform to Minister for Public Expenditure, National Development Plan Delivery and Reform. Amendment No. 10 and others seek to address minor editing matters and punctuation.

Maria Byrne (Fine Gael)
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Amendment No. 3 in the name of Senator Ward is next. Amendments Nos. 3 to 8, inclusive, are related and may be discussed together by agreement.

Barry Ward (Fine Gael)
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I move amendment No. 3:

In page 14, line 3, to delete “a primary” and substitute “the paramount”.

This amendment relates to section 8 of the Bill, which sets out the guiding principles for Part 2. In section 8(2), it refers to the principle in subsection(1) and section 8(2)(a) refers to "proceedings of which the welfare of a child is involved or likely to be affected by the outcome ensuring that the best interests of the child are of primary consideration in the conduct of proceedings.". That is all very well but, to my mind, it conflicts with the constitutional framework set down in Article 42A4 of the Constitution which refers to it not being a primary consideration but the paramount consideration. I wonder if the Minister would consider whether this section does not conform with its constitutional overlord, if I can put it that way, or the primacy of the Constitution in that regard. Article 42A states that the considerations in cases just like this, the interest of the child should be paramount. It should not be a primary consideration, but paramount and that is why I am seeking to amend "primary" to "paramount".

Helen McEntee (Meath East, Fine Gael)
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I will respond to this and the other amendments as well. I thank the Senator for his amendment. At the outset, I am fully supportive of the objective and the intention to ensure the welfare of children is not in any way at risk of being overlooked throughout this Bill or in any family law proceedings. As he has rightly mentioned, Article 42A of the Constitution provides that "the best interest of the child shall be the paramount consideration" in the resolution of all proceedings brought by the State for the purpose to protect the safety and welfare of a child or concerning adoption, guardianship, custody of or access to any child. The relevant family law instruments, including the Guardianship of Infants Act 1964, Child Care Act 1991, and adoption legislation already provide for the court to regard the best interests as the paramount consideration when deciding questions arising in proceedings under those Acts.

The specific mention of and focus on "paramount" is for the outcome of the proceedings. What we are referencing here is in relation to the conduct of the proceedings within the court. Providing for the best interest of the child to be a primary consideration in the conduct of the proceedings as a guiding principle for the courts and legal practitioners and indeed for the parties in a case does not displace any existing legislative provisions providing for the best interests of the child to be paramount in the overall outcome of the proceedings.

A similar provision is made in those guiding principles that are directed at the parties to proceedings. It is again thinking, in particular, of domestic violence cases or where consideration needs to be taken of the mother or indeed the father in those circumstances that one does not override the other. In the conduct of the proceedings, it is appropriate to ensure it is the primary consideration for children here as opposed to the particular emphasis on the paramount consideration. The two of them work because we are talking about the overall outcome as opposed to the conduct of the family law proceedings. It is for those reasons I do not propose to accept the amendment.

Amendments Nos. 4 and 7 insert additional wording to make clear that in certain circumstances, which I referenced earlier, alternative dispute resolution, including mediation, may not be an appropriate dispute resolution mechanism. Section 8 of the Bill provides for guiding principles that the courts, legal practitioners and parties to proceedings should have regard to the conduct of legal proceedings. These include the encouragement and facilitation of alternative dispute resolution mechanisms, such as in mediation cases where there may be domestic violence, in particular, and where these are not suitable for mediation. A number of advocacy organisations such as Women's Aid, Safe Ireland and a number of other individuals I have met with have requested that the Bill include wording along the lines of that provided in this amendment so that victims of domestic violence will never find themselves in a situation where mediation is used to further the abuse they are suffering. It is obviously a very valuable tool, as we have discussed earlier, but we have to recognise these kinds of situations.

Amendment No. 5 is a short addition inserting "and accessible" following "user-friendly" in the guiding principles. This is in line with the principle that the courts should be available to all those who need the intervention of a court to determine their legal status. I have listened to various stakeholders again who have advocated that the guiding principles should reflect that proceedings in the family courts should be accessible to all users, including those with disabilities, those experiencing additional barriers or disadvantage, and in response I am proposing the insertion of "and accessible" in the guiding principles.

Amendments Nos. 6 and 8 have similarly been inserted to respond to points made to me by stakeholders in dealing with domestic violence and child safety. These amendments focus on matters the guiding principles require the parties to proceedings to have regard to, including regard to the best interest of any child connected with the case and the safety of a child in those circumstances. This is again consistent with the overall aims of the guiding principles.

Maria Byrne (Fine Gael)
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How stands the amendment Senator Ward?

Barry Ward (Fine Gael)
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I have heard what the Minister has said and I am conscious of the other amendments she has made, so in the circumstances I will withdraw it.

Maria Byrne (Fine Gael)
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Amendments No. 9, 38 and 53 are related and may be discussed together by agreement.

Helen McEntee (Meath East, Fine Gael)
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These are a series of amendments that reflect issues raised by stakeholder groups working with those affected by domestic violence. The amendments make provision to ensure that when considering the suspension of proceedings to enable mediation or other alternative dispute resolution mechanisms to occur, the court is required to endeavour to ensure that its suspension does not negatively affect the safety of any party to the proceedings or to a child to whom the proceedings relate. This is again consistent with the amendments we have just made to the guiding principles which recognise that in certain cases such as those involving domestic violence, mediation is not considered appropriate and the court should of course take account of this.

Maria Byrne (Fine Gael)
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Amendments Nos. 11 to 14 inclusive, 27 to 32, inclusive, 34 to 37, inclusive, 40, 41, 57, 58 and 60 to 63, inclusive, are related and may be discussed together by agreement.

Helen McEntee (Meath East, Fine Gael)
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These are a number of largely technical amendments to ensure appropriate consultation between judges but also the Courts Service. We are inserting amendment No. 11 as a new subsection to section 10 of the Courts (Supplemental Provisions) Act 1961, which sets down the functions of the principal judge of the Family High Court and takes account of the statutory functions of the Courts Service and how these contribute to the effective functioning of the courts.

Section 5 of the Courts Service Act 1998 provides that the Courts Service has the following statutory function: manage the courts; provide support services for judges; provide information on the courts system to the public; provide, manage and maintain court buildings; and provide facilities for users of the court to perform such other functions as are conferred on it by any other enactment. These functions are particularly relevant to the distribution and allocation of court business and consultation between the judges and the Courts Service is desirable to support the effective operation of the family courts. It is really important that when this is enacted, there is adequate engagement between the Courts Service and the Judiciary as well as all of the resources that are required to make this work.

Current work on the implementation of the recommendations of the judicial planning working group envisages the role of the Courts Service being more prominent in such matters in the future. The inserted section 11(3)(c) makes it clear that the engagement envisaged shall not be in interference with judicial functions or independence.Other amendments relate to requirements for consultation by the principal judge of the court, with the president of the court and the Courts Service with regard to practice directions. This is aimed at ensuring the practice and procedure in the family courts does not, insofar as possible, diverge from such practice and procedure in the courts more generally. Also, where practice directions are made, the aim is that such directions would not negatively impact the Courts Service in carrying out its functions. Further amendments relate to the requirement for consultation with not only the president of the court but also the Courts Service when determining when the family High Court or Circuit Court shall sit, and the places for holding sittings of the family Circuit Court and the family District Court.

Maria Byrne (Fine Gael)
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Amendments Nos. 15, 23, 42, 50, 69 and 77 are related and may be discussed together. Is that agreed? Agreed.

Helen McEntee (Meath East, Fine Gael)
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In section 15 I am providing for expressions of interest in an assignment as principal judge of the family High Court to be made to the president of the High Court by either existing ordinary judges of the High Court and-or from persons who are to be appointed to the High Court.

While the published Bill provides, at section 16(4) for such persons to express an interest to the president of the High Court for assignment as a judge of the family High Court, there are no specific provisions for expressions of interest to be assigned as the principal judge of the family division of the High Court jurisdiction included. I am of the view that there should be a distinct process for assignment as principal judge given the additional statutory functions that a principal judge of the family High Court will have over and above those of other judges of the family High Court.

In addition, and modelled on a similar provision in the Judicial Appointments Commission Act, provision is being made for an expression of interest to be forwarded, by the person interested, only to the president of the court and not to any other person. There is also a similar amendment in respect of assignment of the judge of the family High Court. It stipulates by whom and to whom an expression of interest in an assignment as a judge to the family High Court should be made. This provision for an expression of interest in assignment as a judge of the family High Court to be made only to the president of the court and not to any other person. This provision is aimed at ensuring that those judges with a genuine interest in an assignment to the family High Court engage directly with the president of the Court in expressing interest in that assignment, and do not do so through a third party. There were similar amendments proposed in respect of assignment as principal judge and judge to the family Circuit Court and to the family District Court.

Maria Byrne (Fine Gael)
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Amendments Nos. 16 to 22, inclusive, 24, 25, 43 to 49, inclusive, 51, 52, 70 to 76, inclusive, 78 and 83 are related and may be discussed together by agreement. Is that agreed? Agreed.

Helen McEntee (Meath East, Fine Gael)
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This is a technical amendment inserting the word “ordinary" before "judge of the High Court" in order to be consistent with how such judges are referred to generally in statute. There are a number of similar drafting amendments throughout the Bill.

Maria Byrne (Fine Gael)
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Before I go on to the next section, I welcome Deputy Coveney and his guests to the Gallery. I hope they enjoy their visit today.

Barry Ward (Fine Gael)
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The Acting Chairperson acknowledged Deputy Coveney, who is in the Gallery. I would like to do so too. I also acknowledge councillor Jack White from Carrigaline, who is a councillor on Cork County Council. I know he has done great work recently with regard to the Occupied Territories Bill which is before this House at the moment. He may have been forgiven for coming into the Chamber thinking it was story time with Senator Maria Byrne for the last 20 minutes, but I am glad we are moving on to discuss some of the issues that are in the Bill.

Gerry Horkan (Fianna Fail)
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We have discussed so much already. We are dealing with it. It is not Senator Byrne's fault.

Barry Ward (Fine Gael)
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I noted my opposition to section 68. The proposed section 68 within the Bill at the moment relates to family law proceedings where concurrent jurisdictions are conferred on the Family High Court, Family Circuit Court and Family District Court. It restricts an application from commencing family law proceedings in the High Court, unless there is a special reason for doing so. I am also conscious of what the Minister said with regard to amendments that are coming on Report Stages. I will not labour the point, but the impetus for imposing the limitations is unclear and it may well be dealt with in due course. However, it would also be the case that any information that we have about these cases has started in the High Court or data from the Courts Service or information from practitioners. I am not a family law practitioner either. I have benefitted from speaking to Paul McCarthy SC, Sara Phelan SC, Tabitha Wood BL, who will become senior counsel next week and Deirdre Browne BL, all of whom are family practitioners and have advised me that there is no basis for suspecting that the High Court is being misused in any way or that litigation is started in the High Court vexatiously. Of course, there are also mechanisms in existence to allow a judge of the High Court to remit the matter down to Circuit Court if he or she feels that this is the appropriate thing to do. Those procedures exist. That backs up the reason I am opposed to this section.

The High Court's constitutional status as a court of a full original jurisdiction is also important because it creates precedent for all kinds of other cases. We have done a lot of work in the family law reporting area to allow the High Court to report on decisions from family cases to therefore guide future courts with regard to how they should operate. If the High Court is no longer the court of first instance for many family proceedings, then where complex cases involving things such as judicial separation and divorce, cohabitation proceedings, etc., the danger is that fewer written judgments lead to the creation of fewer clear precedents in each of those areas, which would not arise, for example, from the Circuit Court. There is an argument that it is not in the public interest to have a situation where the flow of case law from the High Court as a constitutional court regarding decisions on family law matters therefore is a bad thing. As I said, I will not labour the point because the Minister said that this is something that may be dealt with on Report Stage, but I wanted to flag it at that point in the context of section 68.

Michael McDowell (Independent)
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I support what Senator Ward has said.It seems to me that the jurisprudence of the Irish courts system depends on people being able to work out what is being decided in cases, the reasons that are being given and the policies that are being adopted in case law. If everything is shunted down a peg on the ladder, there will, as Senator Ward says, be fewer and fewer written decisions. On a point which is of some significance, the Court of Appeal's jurisdiction will , in effect, be abolished, except in most extraordinary cases, and the question of getting the Supreme Court to consider fundamental questions of family law will be that bit more difficult as well. It is not as if I want to see cases dealt with in the highest available jurisdiction but if we look at the effect of moving everything down a peg, it is to make the principles of Irish family law jurisprudence more and more inaccessible because we will not have written judgments. District Court judges have enough to do without spending as much time as High Court judges are frequently required to on lengthy analyses of case law issues that are put before them and putting their reasoning as to why they agree or disagree with the submissions of one side or the other on the record.

Obviously it is not desirable that every case ends up in a lengthy written decision but we should be cautious about what we are doing. People find that the law is a bit of a mystery and if people cannot write textbooks to explain what section such-and-such is actually interpreted as meaning and the reasons for it are X or Y, then it becomes more and more opaque. People will go to a lawyer only to be told that they may or may not be able to read it in a textbook, but the lawyer will be able to tell them what will happen and the poor old clients are stuck with interpretations that practitioners put on what individual judges are likely or not likely to do. I am with Senator Ward on this.

Helen McEntee (Meath East, Fine Gael)
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I too acknowledge Councillor White and Deputy Coveney. I hope they have a good trip.

I am absolutely cognisant of why the Senator is opposing the section but obviously, as I have clearly stated, the intention is not that we would send everybody to the District Court. I am very conscious of the need to respect the full and original jurisdiction of the High Court on all matters but I am also very conscious of the need to ensure that cases are dealt with at the most appropriate level. The Senator is right that not every case needs a full and lengthy written statement but there some cases that will need one and that is why ensuring that the jurisdiction applies to the District, Circuit and High Courts does not automatically mean that every case will start in the District Court and that is certainly not my intention. There are certainly cases that are straightforward and not complex that can be decided on with little cost to those involved and that is really the objective here.

In terms of the €1 million figure that was put on it, a farm of land and a house in any part of the country might be worth €1 million but that does not mean that a person has €1 million in cash or has access to that. Obviously, if one looks at house prices in certain parts of Dublin, what might seem like modest properties could still cost up to €1 million. It is to make sure that people are not negatively impacted because of where they are living or the cost of the property or land they own.

Again, I will bring forward amendments to make it absolutely clear that it is not the case that every family law matter will start in the District Court. The more complex cases will be able to start in the High Court, as is the case now. This is being brought forward to make sure we have a family justice system that works for everybody, for those involved in the more complex cases but also those involved in cases that are more straightforward and can be dealt more appropriately at District Court level. The District Court should be able, once we have these systems up and running with specialist judges and specialist court sittings dealing only with family law, to deal with these in a quick and efficient manner.

Michael McDowell (Independent)
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Arising out of what the Minister has just stated, I point out that if one has a Circuit Court or District Court jurisdiction it is local in principle. Where I come from in Ranelagh in Dublin, there are lanes with very modest cottages on them. One can watch "Cheap Irish Homes" on television and there are some houses within 200 or 300 yards of where I live which, if they were anywhere else in Ireland, would be the subject of an item on that programme. There is one particular lane where the houses are so old that one has to bend down to get one's head under the hall door lintel and yet they are all apparently worth more than €500,000. On the other hand, a family in Laois or Offaly could get a very substantial house for that kind of money and have plenty of bedrooms and all the rest of it. Some houses in Dublin where one could not swing a cat will have enormous value. I raise the issue to ask whether it is sensible, if we are dividing jurisdiction into local circuits and districts regionally, to have a national property value because we are dealing with very different things. For €500,000 one will get very fine houses outside of Dublin but in certain parts of Dublin one will find very few houses for that price and some would feature on "Cheap Irish Homes" if they were located in a field somewhere else. It raises the question as to whether it is wise to say that the Circuit Court family jurisdiction in Galway or Roscommon, for instance, effectively deals with far bigger and better houses than it does in Dublin. The same applies to the District Court. Maybe that is something the Minister could consider between now and Report Stage. If we are going to divide the country geographically, is it wise to say that the same property price thresholds apply regardless of where the property is situated? It just does not make sense. To buy a mews site in Dublin 4 or Dublin 5 will cost €500,000 whereas buying the same amount of land in rural Ireland could cost €50,000 or €80,000. There is a fundamental problem with fixing land and property values for jurisdiction on a national basis when there is such dramatic variation between regions. On the basis of a photograph of a house, are we saying that a case in Dublin can only be dealt with in a higher court but can be dealt with in the District Court in another part of the country? There is something strange about that.

Helen McEntee (Meath East, Fine Gael)
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The question being put to me on this point is why it has been set at €1 million, why it is so high for the District Court and it is for that exact reason. The fact is that someone may be in a more modest house but, because of the location, it is worth more. That does not mean the person has more disposable income or any greater ability than a person in a house that is twice the size in a different part of the country. By putting this in place at this level, the question for me is why we are going so high for something that should be more straightforward in the District Court but it is to account for the people who are in that situation, looking at it from the other side. Obviously, for anything beyond that, cases will go into the Circuit Court and the High Court, where inevitably it becomes more complex. This is very much to take into consideration the fact that there are discrepancies there and that just because someone has a home and a farm that is worth €1 million does not mean he or she has as much disposable income as someone else who might have something valued at €1 million.

Michael McDowell (Independent)
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On that point, I do not know how it works out. If there is going to be a property division order or a pension fund division order, is there a monetary limit on what the District Court can do or is it purely land that has these monetary values that we are dealing with?

Helen McEntee (Meath East, Fine Gael)
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It is overall.

Barry Ward (Fine Gael)
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I will be brief. Section 69 essentially confers an unlimited jurisdiction, monetarily, on the District Court. It specifically states that where there is consent, that is, where the court is satisfied that an agreement has been reached between the parties and they have consented to proceedings being in the District Court, the family District Court, without limit as to monetary jurisdiction, can deal with the matter. My difficulty with this is that it presupposes that if the matter is agreed, it is, therefore, simple, but that is not necessarily the case. If we think of cases involving divorce, separation or cohabitation agreements, for example, consent can be arrived at but only after a very long and protracted period which means that the case will not start in the District Court and will probably start somewhere else. I acknowledge the benefit for certain parties who have agreed at the time they come to the steps of the court and have already decided exactly how things are going to go. There may well be a benefit to them but the reality is that in the vast majority of cases, that agreement comes later on in the day. It comes after the case has been initiated and therefore, it seems to me that there is little enough benefit to litigants in this provision in section 69 because they are going to have to go to another court in the first instance anyway.

There is another danger that arises. Again, just because a case is on consent does not mean it is straightforward. The consideration of orders within a case can take a considerable period of time so even where the parties have reached agreement, the judge dealing with the matter has to examine those agreements and be satisfied that they are right for the spouse and the children, potentially, if they are involved as well. It could still involve a very lengthy consideration, even in a consent case. It could still involve some very complex matters. An agreement reached by the parties may not necessarily hold and it could end up in a hearing in any event. There are just too many moving parts in some cases for it to be appropriate for them to start in the District Court.

The other difficulty that I foresee in relation to this is that the District Court would have very great difficulty in enforcing the orders that it makes if, subsequently, agreement or operation of the agreed parameters of a separation, divorce or cohabitation agreement were to break down. The additional issue is that the District Court is already chock-a-block. It is extremely busy, and the notion that a District Court judge will have time, even in a dedicated family District Court, to apply himself or herself to sometimes very lengthy considerations and then also deal with a busy list is problematic. That is why I am suggesting that the section be removed or opposed.

Helen McEntee (Meath East, Fine Gael)
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Again, I hope to bring clarity that it is not the case, even taking into account the monetary situation, that everything will have to start there. Essentially, it will be a matter for the judge to be satisfied that the parties are in the right place, irrespective of the monetary position. I appreciate and understand the reason for the Senator's opposition to the section but I hope to be able to bring further amendments to clarify the situation and alleviate some of the concerns raised by the Senator today.

Pat Casey (Fianna Fail)
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Amendments Nos. 84 to 86, inclusive, are related and may be discussed together by agreement.

Helen McEntee (Meath East, Fine Gael)
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This group of amendments propose to amended sections 70 and 71. Amendment No. 84 qualifies section 70, which provides for the sending forward of a case from the family District Court to the family Circuit Court where the circumstances of the proceedings make it appropriate to do so. The amendment provides that where section 72 applies, the case shall not be sent forward to the higher court. Section 72 restricts the power to transfer proceedings under sections 70 or 71 where the court has already granted a decree of judicial separation, divorce or dissolution of a civil partnership in relation to any orders by the court in question in relation to those proceedings.

Amendment No. 85 is a technical amendment inserting a cross-reference to the paragraph to be inserted by the following amendment.

Amendment No. 86 inserts an additional subsection into section 71. This is to stipulate that in family law cases that have already been commenced in the family Circuit Court and the issues before the court have been agreed between the parties while the case is being dealt with by the family Circuit Court, the court shall not send the proceedings to the District Court solely because the matters have been resolved, except where the parties to the case consent. The subsection is to provide additional clarity that the expansion of jurisdiction of the family District Court does not require cases that are already initiated in the family Circuit Court to be transferred downwards by virtue of agreement having been reached on the issue. The default position is that the case will remain to be determined in the initiating court unless the parties consent to a transfer to the lower court jurisdictions. It is considered unlikely that cases will be transferred in such circumstances but the subsection provides greater clarity for those involved in such cases.

Barry Ward (Fine Gael)
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I had registered my opposition to sections 70, 71 and 72, which arise on foot of the need for the jurisdiction of the District Court to be expanded. I will not speak again, but it is convenient to come in now in relation to what the Minister said. If the Minister is not with me in terms of the issues that might arise from the enormous expansion of the District Court jurisdiction, then these sections are necessary. However, I would just sound a note of caution regarding the ability of the District Court, in the context of its time and existing case burden, to deal with this expansion and the massive number of cases that will come within its remit.

Barry Ward (Fine Gael)
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I have already registered my opposition to this. What section 76 proposes to do is to amend section 10 of the Family Home Protection Act 1976 and therefore to confer on the District Court a jurisdiction it does not have at present. The Family Home Protection Act is massively important legislation that transformed the status of women in relation to family law proceedings because before that, there was an extent to which the family home could be sold out from under them. While I am not saying that there is any move here not to, it is very important that we safeguard the provisions in that Act.

As I stated, the section gives a new jurisdiction to the District Court to deal with issues pertaining to the interests and rights of non-owning spouses in land. Of course, land does not just include the place where they are living. The rational for the expansion of this jurisdiction is a little unclear. The types of case that involve the Family Home Protection Act can be very complex in nature. For that reason, I would suggest that some of them would not be suitable for the District Court, both in terms of the length of time they would take and the fact that the issues involved that would not traditionally come before the District Court. They could include third parties such as financial institutions that might have a mortgage or some other kind of lien on a property which is a family home. Therefore, I wonder about the current allocation of jurisdiction and whether it is appropriate to overturn that if these matters are of such weighty consequence that they are going to take a large amount of time and involve a lot of complexity and whether it is appropriate to extend the jurisdiction of the District Court to include section 10 of the 1976 Act.

Helen McEntee (Meath East, Fine Gael)
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Again, it comes down to the overall objective that where a case is deemed not appropriate for the court that it goes to, whether that be the District Court or otherwise, a decision can be taken by the judge, with the agreement of the practitioners, that it would move to a different jurisdiction. Again, I hope to clarify that in future amendments.

Pat Casey (Fianna Fail)
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Amendments Nos. 87 to 106, inclusive, are related. Amendment No. 95 is a physical alternative to amendment No. 94. Amendments Nos. 87 to 106, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Barry Ward (Fine Gael)
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I move amendment No. 87:

In page 64, to delete lines 33 to 40.

This amendment relates to section 77(a), (b) and (c). It concerns the Family Law (Maintenance of Spouses and Children) Act 1976 and would amend it in a number of different respects, but would permit a District Court to make a separation agreement as a rule of court. Paragraph (c) confers jurisdiction on the District Court to make pension preservation orders in separation agreements. As with judicial separation and separation agreements, their enforcement can require consideration of very complex and lengthy financial and property issues. A separation agreement is a contract and is enforceable as such. Where a party is seeking to have such an agreement made a rule of court, it may be a harbinger of enforcement proceedings, which can be protracted and require a number of court appearances. Again, in the normal course, such matters would not come before the District Court for the very reason that they bring with them complexities and lengthy proceedings. The consequence of a District Court ruling on a separation agreement would be that the District Court would then also be the venue for enforcing that agreement where it breaks down or there is a breach of it, allegedly, by one side or the other. I again raise the issue that the District Court may not be the most appropriate forum, both for dealing with those matters that are lengthy and complex and those that are going to require future enforcement, which would normally be done by a higher court.

Helen McEntee (Meath East, Fine Gael)
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Again, the overall objective here is to make sure that where it is appropriate in the case of maintenance or other matters that a decision can be taken by the judge but also by the practitioners, where there is agreement. If it is to be at the District Court, that can be with the agreement of the practitioners, the people involved, and the judge. At the same time, if it is not appropriate, a decision in that regard can be taken as well. In terms of the jurisdiction for all three, the intention is not that everything would start in the District Court, in particular if it is not the appropriate place for it.

Barry Ward (Fine Gael)
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I move amendment No. 88:

In page 66, lines 29 and 30, to delete “Subject section 69 of the Family Courts Act 2022 and subsection (4),”.

If I may speak very briefly, this is a similar issue. However, the amendment relates specifically to the context of the land jurisdiction.

Gerry Horkan (Fianna Fail)
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Senator Ward cannot.

Barry Ward (Fine Gael)
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I know Senator Horkan will not interrupt again, as the Chair has allowed me to say a few words on the issue.

Gerry Horkan (Fianna Fail)
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Senator Ward still cannot speak to the amendment.

Barry Ward (Fine Gael)
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The amendment relates to section 78(2) and the proposed new section 8 being inserted into the 1981 Act. It again confers jurisdiction on the District Court to deal with property disputes up to a value of €1 million where the parties are formally engaged. This appears to be out of line with the District Court's monetary jurisdiction generally, which is €15,000. It is an enormous jump. Even the Circuit Court is limited to €75,000. Of the new proposed section 8-----

Pat Casey (Fianna Fail)
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I am sorry to interrupt the Senator but I have given him some flexibility.

Barry Ward (Fine Gael)
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Very good. The Minister understands the point I am making.

Pat Casey (Fianna Fail)
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How stands the amendment?

Barry Ward (Fine Gael)
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I have not heard from the Minister yet, but I will withdraw it any event because I know she is proposing to bring forward amendments on Report Stage.

Barry Ward (Fine Gael)
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I move amendment No. 89:

In page 66, to delete lines 33 to 38, and in page 67, to delete lines 1 to 22.

Barry Ward (Fine Gael)
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I move amendment No. 90:

In page 68, line 37, to delete “the Family District Court,”.

Barry Ward (Fine Gael)
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I move amendment No. 91:

In page 68, to delete line 40, and in page 69, to delete lines 1 to 28.

Barry Ward (Fine Gael)
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I move amendment No. 92:

In page 69, line 31, to delete “or Family District Court district”.

Barry Ward (Fine Gael)
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The Minister understands my position. The amendments I tabled were predicated on concerns about the capacity of the District Court to deal with the expanded jurisdiction that is being handed to it in this Bill. That is not to say the District Court is not important. I do not want to cast any aspersions on it. The District Court deals with a greater caseload than any other court in this jurisdiction. It goes through things at a rate of knots. District Court judges probably sit longer than any other judges in system. They deal with a huge volume of material but that is, in itself, the source of the problem because we have a situation where they already have an enormous volume of material.

What is proposed in the Bill, specifically section 80, is that a number of cases that would otherwise be dealt with in the Circuit Court or a higher court be shifted to the District Court lists. There are two really good reasons why that should not happen. The first is the caseload and the capacity of the District Court simply in terms of time to deal with those cases. The second relates to the capacity of the District Court when dealing with complex issues that might take time. They will not be reported on because there is not a precedence role for the District Court in terms of establishing case law and stare decisis but also in terms of the complexity of issues that are not appropriate for the setting of a District Court where there is a huge turnover of cases. The reality is judges are not vested with the time and resources to give the careful consideration that happens in a large number of family law cases in the Circuit Court and the High Court.

I sound a note of caution in regard to section 80 and its amendment to the 1989 Act, in terms of the expanded jurisdiction of the District Court. My fear is that it will create unintended consequences from the point of view of the burden it will place on those operating within the District Court and on the capacity of that court to render decisions in an efficient way, which is largely working at the moment.

That is not to say, by any stretch, that the system is perfect, but given the investment the Minister has put into increasing the number of Circuit Court judges, and what we saw in the budget yesterday in terms of Vote 24 and expanding the facilities available to the Courts Service with new registrars and new courtrooms, that will help the system work more efficiently than putting more cases into the District Court.

Helen McEntee (Meath East, Fine Gael)
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The objective of the Bill is that we would have separate family District Courts. They will not be dealing with all of the lists and cases they are dealing with now. The sole focus and attention of the judges appointed to the family courts at all levels, but in particular to the District Courts, will be family law, as it should be, not dealing with the backlogs they are currently addressing. The challenge at the moment is that there are judges who want to give this the time but they simply cannot because they are dealing with so many other issues. That is absolutely my intention.

To refer back to my discussion with Senator McDowell on the initial amendment, it is my intention that the courts will be supported and that they will have the appropriate resources so that the family judges in the District Court, Circuit Court and High Court will deal solely with these cases and not have to deal with all the other backlogs that currently exist. Also, the additional judges will not just be going to the family courts - we have had 30 so far and there are 20 more to come - they will be spread across the various jurisdictions. The criminal courts and other civil courts as well will have access to those new judges. Once this legislation is passed - and as soon as we have all the family judges in place - they will be able to focus solely on family law matters, which should take away some of the burden but also give them the time and space needed to deal with those cases.

I agree with Senator Ward that if it is not appropriate to hear a case in the Circuit Court, then it will should not be conducted there. I do not intend that this Bill would force cases to be heard that are not appropriate and that should not be dealt with in the District Court. The judge, practitioners or individuals involved could agree to move the jurisdiction if that is what they feel is most appropriate.

Barry Ward (Fine Gael)
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I move amendment No. 93:

In page 76, lines 22 and 23, to delete “Subject to the provisions of this section, the Family District Court (other than in respect of proceedings under Part IV),”.

Barry Ward (Fine Gael)
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I move amendment No. 94:

In page 76, to delete lines 29 to 40, and in page 77, to delete lines 1 to 15.

Barry Ward (Fine Gael)
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I move amendment No. 96:

In page 78, line 19, to delete “the Family District Court,”.

Barry Ward (Fine Gael)
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I move amendment No. 97:

In page 78, to delete lines 27 to 41, and in page 79, to delete lines 1 to 7.

Barry Ward (Fine Gael)
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I move amendment No. 98:

In page 79, line 9, to delete “the Family District Court and”.

Barry Ward (Fine Gael)
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I move amendment No. 99:

In page 79, lines 10 and 11, to delete “the Family District Court or”.

Barry Ward (Fine Gael)
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I move amendment No. 100:

In page 84, to delete line 38.

Barry Ward (Fine Gael)
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I move amendment No. 101:

In page 86, lines 21 to 24, to delete all words from and including “ ‘Family” in line 21, down to and including “Court;” in line 24.

Barry Ward (Fine Gael)
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I move amendment No. 102:

In page 86, line 26, to delete “the Family District Court,”.

Barry Ward (Fine Gael)
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I move amendment No. 103:

In page 87, to delete lines 7 to 35.

Barry Ward (Fine Gael)
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I move amendment No. 104:

In page 87, line 36, to delete “Family District Court and the”.

Barry Ward (Fine Gael)
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I move amendment No. 105:

In page 87, lines 37 and 38, to delete “Family District Court district or”.

Barry Ward (Fine Gael)
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I move amendment No. 106:

In page 88, to delete lines 36 to 39, and in page 89, to delete lines 1 to 23.

Barry Ward (Fine Gael)
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I wish to make one comment on the section. There is a sequence of measures that come in the last number of sections, culminating in this section 90. Again, with regard to experience, it has been said to me by practitioners in this area that there is a reason we have judges who operate at High Court, Circuit Court and District Court levels. They have different skill sets, experiences, backgrounds, etc., as it should be. However, I wonder about the wisdom, and maybe this is something the Minister will bear in mind in the context of any amendments she proposes to bring forward on Report Stage and notwithstanding the safeguards she has built into all of this part of the Bill, of essentially deciding that District Court judges become the new Circuit Court judges for family law and Circuit Court judges become the new High Court judges. I feel there is a move to essentially take all family law cases and move them down one court. There may well be an argument for that. There is obviously a potential cost saving in that. However, is there a concern that the baby gets thrown out with the bathwater and that the corresponding service the litigant gets in those cases - the husband, wife or parent of the child - is going to be diminished accordingly? The Minister might give consideration in her Report Stage amendments as to whether it is a wise thing to do in all the circumstances, without perhaps throwing everything out that is in this Bill because there is value in some of the provisions and notwithstanding what she said about new dedicated judges in each of those courts, to put into a court that is not used to it a jurisdiction that is potentially going to rebound on it in terms of the work it is going to end up having to do all of a sudden. Again, I cast no aspersions on the District Court in that regard but ask whether it is wise in all the circumstances.

Michael McDowell (Independent)
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I agree with Senator Ward. It did occur to me, but it was a Second Stage consideration, and this Bill has been two years on the waiting list to be considered on Committee Stage here. Maybe we would have been wiser to create a family court full stop with geographical divisions rather than having this wedding cake hierarchical system imitating the other jurisdictions. If we had simply just said there shall be a family court and family court judges with special training and all the rest of it who are not members of the District Court or Circuit Court, we might have had an easier way of dealing with all of these jurisdictional matters. The decision as to where particular cases went would not have to be decided by the complex legal arrangements we have here.

I do not know whether there is some constitutional objection to having a family court. As I recollect, the Constitution states that the High Court has full and original jurisdiction, but we can have courts of local and limited jurisdiction in addition to the High Court. I wonder whether it might have been easier in the first place just to have a family court that sits in various different parts of the country and not have to have the distinction between District Court and Circuit Court judges and-or family High Court judges. We could say that family High Court judges are ex officio members of the family court so that the court's jurisdiction could be dealt with in that way. Anyway, we are where we are I suppose is the answer to that. It is a bit late to voice this fundamental query. The next Government might consider that, whatever that is.

Helen McEntee (Meath East, Fine Gael)
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This amendment to section 97 inserts additional paragraphs to bring the provisions regarding the application of the in camera rule into line with section 40 of the Civil Liability and Courts Act 2004, as amended. This addresses an issue identified by the High Court in a family law case which concerned conduct in a case related to family law proceedings affecting the judicial complaints process. Prior to the amendment of the 2004 Act, a person who wished to make a complaint about the conduct of a judge would have to seek the permission of the judge against whom the complaint was to be made in order to submit such evidence to the judicial conducts complaint mechanism. This obviously addresses that.

Michael McDowell (Independent)
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I fully agree with the amendment the Minister has proposed. It is absurd that somebody who wanted to complain about how they were treated had to get the permission of somebody who they alleged had mistreated them to make a complaint in the judicial complaints process. I fully agree with that.

We should think about this provision and the rule with regard to contempt of court slightly more deeply. I am fully in favour of the allowing of bona fide representatives of the media into family law cases. That was done in 2004 when I was Minister for Justice. It is an important thing to have done. It had the effect, or should have had the effect, of making the process more transparent and dealing with allegations that the system was systematically biased one way or another or that men or women or whatever were getting a raw deal one way or the other.I fully understand the importance of these provisions.

My next point follows from the fact that family law matters are effectively secret. I am conscious of one particular circumstance and other Members may be aware of it too. It was suggested a number of years ago that RTÉ wanted to publish the behaviour of one or more practitioners in family law with regard to the extraction of fees from a client. It was suggested there was an element of getting the spouse of a man, or of a woman, to exercise a charge over the assets that could be recovered in family law proceedings to satisfy that practitioner’s costs. The Supreme Court was later to criticise some of the figures that it became aware were being charged by way of legal fees in family law cases, and some of the sums that were asked by way of a lump sum payment were grossly excessive. RTÉ wanted to publish a documentary to draw to the attention of the public what was being done under the rubric of contempt of court, on the one hand, and non-disclosure, on the other hand, but it was effectively told by court injunction not to even attempt to do so because it could amount to a contempt of court.

Before Report Stage, I would like the Minister to consider a section stating that nothing in this Act or in the law relating to contempt of court prevents bona fide journalism from investigating not merely the amount but the manner in which parties to family law litigation are effectively charged fees, as well as the scale of such fees. On one occasion, a Member of the other House told me of a man who was charged a colossal fee - I think it was €400,000 - in regard to a family law matter. The Deputy told me that when that was challenged and the individual threatened to go public, it suddenly disappeared down to €120,000 because of the threat of adverse publicity. I presume it is a tiny minority doing this but we should not afford them the opportunity to avail of the veil of secrecy in regard to family law matters to attempt to extract vast sums from people and prevent those people from coming forward to say in public what has happened to them. That is wrong. We should qualify the guarantees of non-disclosure to at least make it possible for somebody to go public if they have been hammered for costs as part of the family law process. I do not think there is anything wrong with that principle. If someone ended up being charged €400,000, threatened to go public and then saw the figure changed to €120,000, as I was told happened in that particular case, other people should not be able to avail of the threat of injunctions against broadcasters to cover up that situation.

I do not know exactly how it could be done. However, I believe there are circumstances in which people should have the right to go public about what has happened to them personally without infringing the necessary confidentiality that applies to the actual hearings before a court.

I have a second point which I will deal with under section 98.

Helen McEntee (Meath East, Fine Gael)
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I take on board what the Senator has said. There is a separate body of work that the family justice strategy is looking at and, as part of that strategy, a review is beginning this month of the in camera rule specific to family law proceedings. While the intention is perhaps not specific to the point referenced by the Senator, I think it is all one and the same. Where abuse continues to happen and the in camera rule stops that abuse from becoming public, whether it is domestic violence or other types of abuse in relationships, that then translates into the family courts. The feedback I am getting from many of the organisations and families is that the abuse is continuing because of the in camera rule and the inability to publicise this. There is a space for both of these to fit together, in particular as the review is starting this month, and then to see where it fits into this piece of work. We will certainly take it on board and come back to the Senator on it.

Michael McDowell (Independent)
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Thank you. I sometimes felt it was just ignored and that nobody was paying attention to it. It is a serious problem. If we accord secrecy to a process, we are effectively opening up the chequebook of clients and allowing other people to write in the amounts.

Michael McDowell (Independent)
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This section concerns the prohibition on publication or broadcast of certain matters. It is to penalise people who make public family law matters in a manner that could lead members of the public to identify the parties in proceedings. It is a huge protection to people and, if we like, part of the constitutional protection we give to the family. People are at their most vulnerable if they are party to family law disputes dealing with issues like adultery, cruelty or coercion - you name it. In particular, they are at their most vulnerable if the fact that such a claim has been made about them, or by them, gets into the public domain.

While I fully understand the need for this prohibition, I want to deal with two points. One is its geographical scope. If a person were malicious and gave the lowdown on a case to, say, Private Eye in London, is any offence committed in Ireland by Private Eye publishing that? Likewise, if it is uploaded onto the Internet somewhere by somebody maliciously, are we protecting a person in Ireland from such an abuse if the scope of publication as defined in section 98 is territorial, and if the public is the Irish public? If the portion of the public is a portion of the Irish public, are we actually protecting people adequately? It is a point I ask the Minister to ponder.

The second point is one that I believe deserves careful reconsideration. Page 101 of the Bill refers to somebody who is convicted of this offence. First, we should make it clear that somebody who tees up such a breach of other people’s rights should be liable to be investigated and convicted.The Minister will see that somebody who is convicted on indictment is liable to a fine of €50,000 or imprisonment for term not exceeding three years, or both. In choosing three rather than five years, what the Minister is actually saying is that the powers of An Garda Síochána to arrest somebody who has breached somebody else's rights absolutely egregiously and maliciously and caused a politician's family law case to be splashed all over everywhere, is limited. If the individual stays quiet, writes a letter to An Garda Síochána and says that he or she has nothing to say about this, then he or she is not capable of being arrested, there is no power of investigation and no power of search. There is nothing to find out exactly what happened. That is the point. The serious offence threshold applies to a warrant to search a premises. It also applies to the power to question somebody rather than be fobbed off with them saying, "I have nothing to say, talk to my solicitors", which flows from a maximum sentence of three rather than five years. I do not want people being unnecessarily arrested but I recall on one occasion that papers found their way into the hands of a newspaper. The Garda Commissioner told the then Attorney General - not me - that there was nothing he could do about it because he had no power of arrest, no power of search, no nothing. The result in that case was that women who, it was alleged in a Garda file, had availed of abortion in this State found that the Garda file on them had been handed to the media and they were doorstepped. The Garda Commissioner said there was nothing he could do about it because there was no offence and An Garda Síochána did not have the right to arrest.

In choosing three rather than five years, we are seriously curtailing the power to protect people and the power to punish people who deliberately pull the rug out from under people in public. I ask the Minister to consider whether it would be better to go for five years, with a simple amendment allowing search, arrest and interrogation of people. Otherwise, people will get away with an awful lot simply by saying, "Talk to my lawyers."

Helen McEntee (Meath East, Fine Gael)
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I am happy to look at that. My understanding is that the specific section on the penalties restates the provisions of section 40 of the Civil Liability and Courts Act 2004 and that is why it is here but I take the Senator's point. We want to make sure that what is in the Bill is effective and that it acts as a deterrent, as well as everything else. I will take on board what the Senator is saying and take it into consideration.

Michael McDowell (Independent)
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I am just saying it is toothless in its present form because of the three rather than five years provision. We should look at that again on Report Stage.

Jerry Buttimer (Fine Gael)
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Amendments Nos. 113 and 114 are related and may be discussed together by agreement.

Helen McEntee (Meath East, Fine Gael)
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These amendments are being proposed following consideration of representations made by stakeholders, particularly those who work with victims of domestic violence. The proposed new section 99 will restrict the ability of an applicant or respondent to personally cross-examine an applicant, respondent or a person under 18 unless the court considers it in the interests of justice to do so. Instead, provision is made for a legal representative to conduct the cross-examination, including a representative nominated by the court where a party has no legal representative available in court. A similar provision is included in section 16 of the Domestic Violence Act 2018 which is why proceedings under that Act are excluded from this amendment. There is an ancillary amendment, amendment No. 114, to the new section 11 to provide for legal aid in this situation. That amendment inserts an additional paragraph into section 28(5) of the Civil Legal Aid Act 1995 to provide for a person who, by virtue of the limitations on personal cross-examination contained in the inserted new section 99 of this Bill, requires a legal representative for the purposes of conducting cross-examination. The provision enables the person to avail of legal aid to provide a legal representative to conduct that cross-examination on his or her behalf.

The Domestic Violence Act 2018 contains corresponding provisions. Taking on board points raised in discussion with stakeholders, this is appropriate for dealing with cross-examination in certain cases. I am happy to include these amendments as I consider it consistent to the approach being taken to the protection of parties to proceedings set out in the amendments to the guiding principles. One of the first things that I discussed with a particular victim or survivor of domestic violence was how the abuse often continued into the courts, including the family courts. I want to make sure that no matter what we do in enacting this Bill that there is no way a perpetrator of violence and/or other forms of abuse can continue that abuse into the courts. That is the reason for these two amendments.

Barry Ward (Fine Gael)
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I welcome this amendment. It makes sense, is important and is consistent with instruments that the Minister has brought before the House in relation to the prosecution of sexual offences as well. It is a really important measure. However, I have one question in relation to the proposed section 99(4) and (5). It is really about a circumstance where a person has decided that he or she wishes to cross-examine the other party and the court has decided that it is not appropriate and, therefore, the person must have a legal representative do that. Again, I have no problem with that but I have a question about it. The amendment states that the court "shall appoint a legal representative". Subsection (5) states that the legal representative will be "chosen by the court". I just wonder about the constitutionality of that in terms of the access to justice issues that surround it. Although provision is made in the proposed new section 100 for legal aid, is it not something that is for the decision of the litigant as to who his or her legal representative will be, rather than the court? I am wondering whether the subsection that specifically states that the court will choose the legal representative might create other issues from the point of view of the right of the litigant to choose his or her representative.

Helen McEntee (Meath East, Fine Gael)
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I am happy to engage with the Senator on this. I take on board his point and will see if we can either provide further clarification or, if needs be, to amend it to respond to his point.

Jerry Buttimer (Fine Gael)
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When is it proposed to take Report Stage?

Gerry Horkan (Fianna Fail)
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Next Tuesday. I wish to thank the Minister for Justice, Deputy McEntee, and her officials for all the work that has gone into this. I spoke on this Bill on Second Stage in February in the presence of the current Taoiseach, who was covering for the Minister in the Department of Justice. I also thank him, but especially the Minister, for all the work. I also thank all the Senators who contributed a lot more to this afternoon's debate than I did. I was listening intently and learned a lot. I am not a practitioner in the courts but they are and they bring that very helpful expertise. I thank everyone. As Senator McDowell alluded to a number of times, this Bill is dated 2022. I will not delay it any further than the 30 seconds for which I have spoken now.

Michael McDowell (Independent)
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The Long Title of the Bill, which the Cathaoirleach read out so carefully, will have to be amended to include a reference to the Civil Legal Aid Act 1995.

Jerry Buttimer (Fine Gael)
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That can be dealt with on Report Stage. I am glad the Senator clarified that. I hope we did not miss it. I thank the Minister and Members.