There is a need for the appointment of extra members to the High Court because of the great backlog of cases there and the great increase in the workload in a number of legal areas.
I intend to concentrate on one aspect and this is an aspect that the Minister of State has highlighted in his opening remarks as being one of the reasons for our needing this legislation. He referred to the fact that there has been a very large increase in the volume of family law work coming before the courts. This is something of which I am aware from my personal involvement in such cases. In so far as the appointment of two additional High Court judges is concerned, this may speed up the manner in which such cases are dealt with and to that extent I welcome the Bill.
Like preceding Court Acts the Bill is effectively a remedial measure to deal with a problem, to some extent to deal with it piecemeal, though this is no fault of the Minister or of the Government and neither is it any fault of the previous administration because despite the existence of a large number of various committees who down through the years have considered different aspects of the courts structures and have made recommendations for changes, there has not been a comprehensive re-examination in this area since the foundation of the State. Effectively we have the same courts system today as we have had since 1922. Indeed, the system that we commenced with in 1922 was effectively the system which existed prior to the establishment of the Free State. There is a need now in so far as the law is administered in a number of areas to have a fundamental re-examination of the manner in which our courts work. This is required more in the area of family law than in any other area.
The position is that the various courts operating within our system are administering family law. The District Court has some jurisdiction in this area as have also the Circuit Court and the High Court. We have an overlapping court structure that lacks co-ordination and which is wasteful financially in so far as one often finds judges at different levels in the courts dealing with family problems involving the same people but not being in a position to deal with such problems in a comprehensive way since different courts have different powers. The time has come to reconsider that situation. A number of bodies have been set up for the purpose of reviewing the courts structure. The Committee on Court Practice and Procedure produced a large number of reports and recommended many significant changes in the jurisdictional basis on which the courts operate. The Courts Act, 1980, which was passed last May sought to implement the recommendations of that committee.
Some speakers in this debate have said that the content of that Act is to be welcomed. When much of the content of that Act comes into force in May 1982 it will greatly increase the jurisdiction of the lower courts and bring them into touch with the realities of inflation and the need to provide a more efficient court system. So far as the Courts Act, 1980 will have the effect of conferring family law jurisdiction on the District Court to deal with custody cases and so far as it intends to deprive the High Court of substantial family law jurisdiction, it is a recipe for disaster. I urge the Minister to think very seriously about amending the Courts Act, 1980, before it comes into force next May in so far as it affects family law.
The Courts Act, 1980, will deprive the High Court of jurisdiction in a number of areas of family law in which the Judiciary in that court over the past 15 years have acquired a tremendous degree of expertise and knowledge. In seeking to deprive that court of this jurisdiction this Act is conferring it in part on the Circuit Court, which it is fair to say, without being in any way disrespectful to the members of that court, is a court in which there have been very few family actions heard. The judges in the Circuit Court have had very little real experience in the family law area. If this Act is not amended, the Circuit Court from May 1982 will be inundated with family law proceedings and will be ill-equipped to deal with them.
There is a similar difficulty in relation to the District Court in so far as this Act, in depriving the High Court of the jurisdiction and competence to deal with custody cases, disputes about custody of children between married couples, will confer this jurisdiction on the District Court in addition to the Circuit Court. The District Court at the moment has very limited family law jurisdiction. I do not believe the physical structures of the District Court are able to deal with custody cases. The present family law jurisdiction of the District Court is essentially to deal with maintenance applications by spouses or with barring orders — an application normally brought by battered wives to have their husbands barred from their homes. In the District Court this can only be done for a period of 12 months.
Such District Court proceedings normally last from one hour to two hours and rarely take longer than that. Custody cases can run for two or three days in some instances. It is unusual for a fully fought custody case to take less than a full days' hearing. I do not believe that the work the District Court presently deals with, which will be increased in other areas by the Courts Act, 1980, will enable that court to deal properly with custody cases. The physical structures of those courts do not permit them to deal with family law in a proper fashion. Many courts lack any real consultation facilities. Some of them operate out of rugby clubs or dance halls. In my constituency the Rathfarnham District Court is effectively a court composed of one room where there are no consultation facilities available. If a person has a family law case and he or she wishes to consult a solicitor outside the court while other cases are going on, that person has no choice but to stand in the main street of Rathfarnham or stand in the public lavatories which adjoin the court. Many consultations in trying to resolve family problems have taken place in those lavatories. That is a disgraceful situation and it will be exacerbated by the Courts Act, 1981.
I believe the intention of the Courts Act, 1981, was to remove some of the pressures which exist on the High Court. The appointment of two additional judges in the Bill we are discussing today will to some extent remove that pressure and, I believe, will render the transfer of custody jurisdiction to the District Court unnecessary. I am not casting any doubts on the integrity of the district justices, but they do not have the experience to deal with this type of litigation. They have never dealt with this. There is however a great deal of experience and expertise in the High Court.
I believe tremendous problems will be created by transferring this jurisdiction out of the High Court and placing it in the District Court. I believe one of the motivating factors in having the Courts Act, 1981, passed was that the previous Minister felt that, if this transfer of jurisdiction took place, it would reduce the cost of such family proceedings. However, I believe that will not be the reality. I believe that, irrespective of whether custody cases are dealt with in the High Court or in the District Court, a similar amount of work will have to be done by lawyers. I believe this transfer of jurisdiction could increase the costs for litigants because district justices have no experience of dealing with these cases. I believe that when this Act comes into force a great many of the people involved will appeal to the Circuit Court for a further full hearing before that court. At the moment it is unusual for custody cases to appeal to the Supreme Court from the High Court. I believe that, instead of the matter being dealt with as speedily and as inexpensively as possible, those cases will straddle the District Court and the Circuit Court and take even longer than they take at the moment. This will end up being more costly for the people involved.
I believe the intention behind the Courts Act, 1981, in dealing with family law was wrong, although much of what was contained in that Act, as far as it affects other areas of civil law, was right and possibly should have been done years earlier. I am not in any way critical of such matters. But the provisions in relation to family law indicate a lack of understanding of the manner in which family law problems are dealt with and of their effects. The recommendations of the Committee on Court Practice and Procedure, which were the guiding hand behind that Act, were indicative of the fact that the members of that committee did not appreciate the implications of what they were suggesting.
I urge the Minister to look seriously, as I believe the Government are committed to do, at establishing as quickly as possible a unified court structure to deal with family cases. There is no reason why these problems should straddle three different courts. There is no reason why we cannot set up a unified family court at the level of the High Court which deals with all family matters. There is no logic in the area of family law in dividing cases between three different courts. I believe the Government are committed to the establishment of a family court structure. I hope we will have a unified system of family courts. For constitutional reasons it would have to have the status of a High Court. Each court should be situated in an area where the Circuit Court operates at present. That would not cost additional finance but would have the merit that it would save the State funds in that it would remove much of the overlapping and inconsistencies of the present system. It would produce a more coherent and unified system of justice.
In this regard one must refer to the other committees that have some jurisdiction to make comments on the reform of the court system. The Law Reform Commission were established by an Act in 1975 and they came into operation in 1976. In that year the commission published a programme for law reform. The programme stated that in examining various aspects of family law the commission "will consider the question of the best type of judicial or court structure or structures appropriate to deal with different matters which fall under the general heading of family law". That was said by the commission in 1976. We are now in 1981 but the Law Reform Commission have not produced even a working paper to deal with this aspect of the problem. That is not the fault of this administration or the previous administration. It is the fault of the Law Reform Commission.
In their work programme published in 1976 the Law Reform Commission stated they regarded family law as a priority area for reform. In a recent question to the Taoiseach, to which I got a very detailed reply, I asked him to list what matters were now being considered by the Law Reform Commission for the purpose of introducing new legislation or reform. In an answer on 20 October 1981, the Taoiseach listed approximately 23 different areas of law that the commission are supposed to be examining at present. Some of them were presumably referred to the commission by previous Attorneys General and some were taken up by the commission on their own initiative. In the 23 areas listed there is no reference to a family law court structure. What has happened to the programme originally put forward by the Law Reform Commission? Do they intend to do any work in this area? I know this is not the function of the Minister of State, but I hope this matter will be clarified.
In the context of court jurisdiction, as in the context of family law reform generally, we have a major problem, namely, that the Law Reform Commission have become one of the greatest impediments to law reform, which is a contradiction in terms. When the commission were established they were welcomed by all sides on the basis that they would provide a very real input and would act as a catalyst to much badly-needed law reform. Since their establishment in 1976, I believe the Law Reform Commission have failed abysmally. Possibly some of the failure is not the fault of the commission. To some extent they have become a form of political dustbin in that the previous Government willy-nilly referred all sorts of areas of law to them to produce reports when they themselves had no policies or opinions on the problems that existed and what law reforms were required. To some extent the commission have had areas of law referred to them for reform that were not purely lawyers' law. To some extent the commission have been asked to do things they are not capable of doing, to make political judgments on social decisions in dealing with questions of law reform.
I find it extraordinary that the Law Reform Commission have managed to produce only one final report in five and a half years. They have produced a number of working papers but in the context of the work done by them and of the great intentions and hopes for the commission they have now been seen to be incapable of carrying out the tasks originally assigned to them. Effectively it is the function of the Attorney General as opposed to the Minister of State, but I urge the Government to have another look at the Law Reform Commission and see what reforming legislation might be introduced to deal with the problems that appear to exist with the commission.
On the evidence of the manner the commission have operated, I do not believe they are capable of dealing with the question of the best type of court structure that should be used in the area of family law. Despite their declared intent to do so, the commission have apparently, quietly and without announcement, dropped that as one of the areas of law they will review. We should deal with this area. Possibly it should be dealt with in the context of the committee that is to be set up which I hope will be an all-party committee, despite what I have been reading in the press. That committee will deal with the problems of family law and family life, particularly in the area of marriage. This matter should not be left to the Law Reform Commission because I do not believe they are capable of dealing with it. The final report the commission produced contained all sorts of extraordinary recommendations for reforming an area of family law on which the commission previously produced a working paper. The major part of the recommendations were rejected, quite rightly, by the former Minister. He flew one or two kites suggesting he might accept them but ultimately they were rejected. That is indicative of the failure of the Law Reform Commission to deal properly with family law problems.
The other two committees that made comments relevant to the court system in dealing with family law include the task force on child care which is a report to the Department of Health in which there are recommendations for changing the District Court structure so far as it affects children's cases and law relating to children, in particular cases brought against children where the criminal law is involved and care proceedings where children have to be taken into care. I urge the Minister not to create more overlapping court structures or to have a series of different types of court. If we are to have a family court, which I hope we will, part of the duties of that court should be to deal with the various matters of law relating to children, which were referred to in the report of the task force.
In welcoming the Bill in the context of the appointment of new judges to the High Court, it is still the position that to become a member of the Judiciary in the High Court — and here I disagree with my colleague, Deputy Birmingham — the legislation specifies that the person must have been a practising barrister of at least ten years standing. There are few other qualifications attached to it. If we are talking about the possibility of establishing a unified family court system, I draw the attention of the Minister of State to a report by a working party which was set up in the Department of Health in 1976 on non-accidental injuries to children which looked at the question of the courts system. It made the recommendation that judges appointed to courts responsible for children's cases should have some training in the area of family problems and child care. If we bring in a family court structure I hope a similar requirement will be applied to it.
This Bill by providing two new judges will provide some relief in the courts, particularly in the criminal and civil areas. In the area of family law it is a holding operation and is merely continuing what we have, although it may be speeded up. I hope the Courts Act, 1981 passed last May, will be amended to remove the custody jurisdiction it intends to transfer to the District Court from that court and reinstate it in the High Court. There is much merit in the Circuit Court having additional jurisdiction pending the provision of some family court structure because it will make justice in the courts available to people living outside Dublin who do not have easy access to the High Court. It is essential that High Court jurisdiction be reinstated. If it is not, there may well be sound reasons for suggesting that the 1981 Act is unconstitutional having regard to Article 34 of the Constitution which confers on that court unlimited jurisdiction in dealing with all matters.
The fact that this is a problem has been highlighted by the Family Law (Protection of Spouses and Children) Act, 1981 which was passed on 21 June and came into force on 21 July. This legislation was intended to increase the protection available for battered wives. It amended the Family Law (Maintenance of Spouses and Children) Act, 1976 and in so doing conferred jurisdiction explicitly on both the District Court and the Circuit Court to make barring orders to protect battered wives and husbands. It enabled the court to exclude from the family home any spouse whose behaviour had a detrimental effect on the safety and welfare of the other spouse or children. The flaw in the 1981 Act is that it contains no reference to the High Court having jurisdiction which it formerly had under section 72 of the 1976 Act. The effect has been that many High Court Judges take the view that they do not have power to make barring orders to provide protection for battered wives. Some judges refuse to make these orders and try to make alternative ones which do not afford the protection the 1981 Act intended to make available. I had hoped that this difficulty would have been dealt with in this Bill. It is a matter that requires to be dealt with urgently. The Minister should introduce legislation to deal with it together with matters arising out of the Courts Act, 1981.
Another problem in relation to High Court jurisdiction is the manner in which these cases are dealt with. Family law cases are held in private. There are many such cases going through the courts. In 1980 approximately 1,000 family law actions were instituted in the High Court. From July 1979 to July 1980 there were 2,500. The vast majority were disputes between husbands and wives whose marriages had irretrievably broken down. There were also cases of disputes about children being placed for adoption or adoptive parents seeking to have adoption orders finalised. The general public are totally unaware of the manner in which these cases are dealt with by the courts, of the volume of cases and the problems attached to such cases in so far as the manner in which they are dealt with and the judgments delivered often highlight deficiencies and inadequacies in the statute law. Family law matters, marital problems and adoption problems should be dealt with in private and the parties involved should have an assurance that in no circumstances will their difficulties become public knowledge or will they be identified. In no circumstances should we allow the type of scurrilous court reporting which appears in some journals in countries outside this country.
There is need for balance. We need to provide, not only to the public but to the legal profession, information concerning the type of decisions reached and the manner in which cases are dealt with. When we read the newspapers we can see that High Court cases are reported in different areas of law from road traffic cases to constitutional cases but family law is rarely reported. It is one of the biggest areas of law going through the courts. The public have a right to know what is happening in this area. The manner in which the privacy rule has developed has made life more comfortable for members of the house in so far as there is little publicity attached to the judgments delivered and the manner in which the law operates. This means there is little public demand for law reform because the only people who understand the inadequacies of the system are those in the courts. They are so involved in solving their own problems that they cannot be expected to start crusades for reform to deal with inadequate laws particularly after their proceedings have been resolved. We need to develop a system where judgments delivered in family cases can be made available to court reporters in a manner in which there is no possibility of the identity of the parties being made known but, at the same time, the public know what is happening. The healthy effect of this can be seen in the one or two cases which have become public knowledge. We all know the outrage and uproar which resulted from the McL adoption case some years ago when the result of that case and the judgments delivered were published in the press while maintaining the anonymity of the parties involved. The need for law reform became apparent because of the publication as a result of which so much pressure was put on the Government of the day that, even if they had not the will to introduce reforming legislation, they would have had to do so. I believe that Government had the will. Nevertheless I have no doubt that the great public reaction to that case forced into this House a legislative measure that otherwise would have taken a good deal longer to come before it.