I will lead off and our vice chairperson, Ms Helen Coughlan, will then come in with a couple of practical examples. The Law Society of Ireland welcomes the opportunity to add its voice to the calls for reform and to contribute positively towards it. Everybody is more or less agreed that the current family law system is broken and not working properly and that we need to reform it immediately. There seems to be a great degree of unanimity about having a specialist, not separate, cadre or division of the courts to deal with family law cases. The Law Society of Ireland set out what we believe should happen in our detailed 2014 paper and our submission today. None of this is news to anybody here or anyone involved in family law. All of the groups represented here have been calling for action for almost 20 years, since the Law Reform Commission published its report on the family law courts.
The first thing we want to raise is the issue arising from the problems with security on 20 December in the Dublin Circuit Family Law court. Somebody was able to compromise the security of a courtroom and there were issues arising. That highlighted the complete inadequacy of the Dublin Circuit Family Law Court. There is also a significant issue with the childcare courts in the old Bridewell, our Victorian criminal courts. Parents and children who are attending public law cases, where Tusla is bringing an application to have a child taken into care, have to go to a Victorian prison where the acoustics make it very difficult to hear and the environment and atmosphere are completely unsuitable for adults and, even more so, children, should they be present. The physical premises of the courts need to change, as does the structure of the courts. The Law Society of Ireland agrees that if the specialist court system proposed was taken up, it would not require a constitutional referendum to be held.
The other issue the Law Society of Ireland has is with the Children and Family Relationships Act 2015 which gave effect to the change to Article 42A of the Constitution. It was greatly welcomed by the Law Society of Ireland and is being implemented by our members in the District Court and the Circuit Court throughout the country. The difficulty is that no resources were allocated to give effect to hearing the voice of the child. We have Rolls Royce legislation with no resources attached to it. District Court judges are attempting to hear the voice of the child without the assistance of any expert and without any great funding from the Courts Service. A recent regulation, about which the Law Society of Ireland has a concern, fixes the cost of an expert report on hearing the voice and welfare of the child under section 32 of the 2015 Act at €250 or €300. That will mean that experts will not produce these reports. They typically involve at least four visits to the family and the parents to determine what will happen. As the person who produces a report will be cross-examined in court, there may also be attendance at court and, in addition, the expert will have to produce the report, into which at least 20 hours will have to go. People will not do that. The current system is that judges in the District Court may hear the voice of the child in person.
The facilities for that are completely inadequate. The training is on a patchwork basis. It also means that the judges are taken from their normal work. From a resource point of view, therefore, it is not efficient at all.
The Law Society states that a specialist division of family law courts and judges would greatly assist in dealing with family law cases more efficiently as it would be likely that the same judges would be available to deal with cases which appear regularly before the courts and a greater degree of consistency would be established. It has been noted elsewhere that judges should not be confined to this speciality but should be general judges who could be assigned to family law but would not necessarily spend all their judicial career in family law. However, they would have to be trained and spend sufficient time there as well.
More focus should be placed on settling cases earlier in the process. Obviously, an exception is domestic violence where cases may not able to be settled or may not be suitable for alternative dispute resolution, ADR. Active intervention in family law cases by judges, not by county registrars who are currently the court officials who deal with it or other officials, with an emphasis on resolution in ADR could result in significant savings of time resources for all concerned. ADR obviously happens before people get to court as well because of the new Mediation Act and the provisions in the Family Law (Divorce) Act.
The Legal Aid Board appears to be chronically underfunded. It is not economically possible for solicitors to make a living from the private practitioner scheme relating to the Legal Aid Board. That has led to a flight of solicitors from the District Court where it currently operates.
One of the questions we were asked was about a dedicated court system and whether it would remedy the issues. A dedicated family law court structure throughout the country would fix many of the problems at present, but only if it was properly resourced. The family law court system must be integrated with ADR and the Legal Aid Board would have to be involved, with the courthouses providing facilities not only for courts but also for ADR and the Legal Aid Board. Proper premises would have to be provided in the family law courts. If it was simply a case of creating a family law division within existing structures, a referendum would not be required. Equally, changes to the District Court and Circuit Court would require some consideration. We have proposed alternatives to this model but from a practical point of view and to move this forward, given the consensus regarding the specialist courts, we fully support the calls for a specialist court and would like to see that implemented sooner rather than later.
The issue of costs also arises and we have set out our views in that regard. The best way to deal with the issue of costs and whether cost orders could be used to punish bad behaviour is to encourage settlement at every opportunity, increase the case management and have a cost order potentially as a punishment for those who insist on going ahead with their cases when a very fair offer has been made by the other side and they are unlikely to do better in court. However, where people persist in proceeding, which uses up valuable court time and increases costs on both sides, there should be some sanction available to the court. There is something called a Calderbank letter which effectively means that one sets out one's position in writing, and that can be used subsequently for an order for costs. That should be considered but it should be done on a case-by-case basis.
We again call for consistent judicial supervision of cases to ensure that alternative dispute resolution is considered before one goes to court and, when one goes to court, at the start of the court process and at every stage along the court process so it is dealt with by a judge and there is more active case management. We believe that would be a far more efficient use of resources and would also lead to cases being resolved much earlier for the parties in the majority of cases. Some cases are simply too acute to settle, but very active judicial case management would work.
Legal aid has not kept abreast of developments in the complexity of the law, the needs of the clients or what is involved to defend and represent a client. The resourcing of legal aid is very important.
My final point on behalf of the Law Society relates to the rights of fathers. The Law Society family and child law committee is composed of people who do this work every day of the week and are in a variety of courts. We represent the solicitors who act for parents whose children may be taken into care, people who act for the health board and people who deal with divorce and separation every day in the District Court. We have a wide variety of people who are in the courts. We have seen that the current access model does not necessarily work, particularly for fathers and definitely not for children. We probably need to do some research on how access currently works in the court. The model of every second weekend with an overnight on a Wednesday is perhaps the standard default access for fathers in many cases. Where there are accommodation problems, particularly in Dublin, access is a genuine issue and real hardship is caused for children and families as a result.
In summary, there should be action on this. There has been plenty of discussion up to now, but a change is needed. The change can be introduced by legislation, but legislation alone is no good. There must be resources to back up whatever changes are made. Ms Coughlan will deal with some practical examples of the problems.