Family Courts and Free Civil Legal Aid: Motion.

Mrs. Robinson

I move:

That Seanad Éireann calls on the Government to establish a system of family courts and to introduce a comprehensive scheme of free civil legal aid and advice to ensure equality of access by all citizens to legal advice and remedies.

I should like to begin by thanking the Leader of the House for arranging for this motion to be taken this morning and I should also like to thank the Minister for being present for the debate. We have had some cross words recently, but I hope that today we will find a very substantial element of common ground and I would hope that this debate would spur the Government on to bring in quickly some radical change in the family court structure and to introduce a comprehensive scheme of civil legal aid and advice.

This is one of the most important subjects that the Seanad has debated, certainly in the nine years in which I have been a Member of the Seanad. I look forward, as the mover of the motion, to the contributions that will be made by other Senators and by the Minister himself. We have an opportunity of examining the present position and of making our views known as to whether we think it is adequate, whether it is providing a proper forum, a proper method for resolving family problems, and whether there is access to that method and to the courts themselves so as to provide real justice and equality before the law. The subject matter of the motion is the need for two basic reforms in family law, the two pillars on which a genuine and just family law can be based—a change in the court structure to provide for a unified family court system and a comprehensive system of civil legal aid and advice.

I propose, first, to deal with the need for family courts. It is urgent that we introduce a unified family court system to replace the fragmented and complex system of jurisdiction operated by the various courts at the moment. Although there have been some significant improvements in the remedies available in the area of family law, notably in the two Acts of 1976, the Family Law (Maintenance of Spouses and Children) Act and the Family Home Protection Act, the problem really is that the structure of the legal machinery for dealing with family disputes needs to be overhauled and, in a way, the more we improve on the remedies but leave the structure as it is the more we create, or are in danger of creating, paper rights and not real help for people with serious family problems which require some legal solution and the illusion that we are giving them remedies to help them in this area.

The existing court structures and procedures have three basic inbuilt defects: they are over-complex, over-expensive and negative in their approach to resolving family conflicts. What we need is a new, positive approach which places much more emphasis on conciliation and back-up supports rather than on a contest between the parties in court proceedings. The system we have inherited is an accusatorial system which basically requires the two parties to come into court to contest the issue and present evidence in conflict. This system has admirable factors. It is an admirable framework for cases in the area of torts, in the area of contracts, in the criminal law, but it is not at all suitable for considering family conflicts and for providing the machinery needed to resolve deep family disputes.

Let us look in some detail at the defects in the existing system. First, the judicial process works in isolation from the other support services for the family. Lawyers are trained to approach family law problems and think of legal solutions in isolation from all other supports and services that may be available. This is one of the real problems in that family disputes which come into a solicitor's office cannot be dealt with in isolation.

When I come to deal with civil legal aid I will make the point that, because people cannot get access to advice early enough, very often these family disputes, by the time they come to the solicitor's office, are too late to be helped in a positive and constructive way. It is a matter of picking up the pieces and providing remedies which are too late to be of real help to the parties and merely helping them in some way to have a so-called legal resolution of their problem.

What is needed is a judicial process which is integrated with the other community family support services. These would include marriage counselling, conciliation, medical and psychiatric examinations, child care welfare services, and legal advice services. At present, whatever interlinking there is is at best haphazard, and at worst nonexistent. It may depend very much on the individual judge. One of the problems at the moment is that individual judges are making great efforts within the existing system to call for specialist reports, expert back-up advice, social reports on the whole family situation, but it is operating on an individual and haphazard basis. Certain people may be lucky. They may be lucky in the judge. They may be lucky in the time the court can give to the case. They may be lucky in the way in which their problem is handled. But a very significant number of people who have their cases before the courts do not have the benefit of this kind of interlinking with the other family support services.

A great deal of the problem has to do with the approach to law teaching, the conditioning of judges themselves and their lack of training and preparation to handle family law matters. I will come to that separately. It is worth nothing at this stage that before 1970 no course in family law was taught in any of our law schools. You can take it that anybody who graduated before 1970 did not have the benefit of a course in family law. I believe that the courses which now exist, and which are extremely good courses in the law schools, are making a great difference already to the perception and to the orientation of younger lawyers. This will work its way up through the system. It is also creating, I hope, an undeniable pressure for change. There is more being written about the inadequacy of the present system. There is more limited research going on into the inadequacy.

If we take that defect, that the judicial process operates in isolation, that it is not linked with the other Community support services, I believe an essential component of the family court structure would be an initial sifting process designed to identify disputes which may benefit from a nonlegal approach rather than from dragging the parties into a court in an attempt to see whether there is a legal remedy, as such, for the problem. It may be that they should be pointed in the direction of informed professional advice about other kinds of family support and not necessarily get involved in a legal procedure at all.

The second defect in the present system is the fragmentation of jurisdiction in family matters. I believe this very substantially aggravates the expense, the delay, the inconsistency and certainly the confusion to people who have to seek a remedy for a family dispute. Family problems which occur and which require legal solutions seldom occur in isolation. They are frequently problems which require different remedies and, at times, the unfortunate parties have to seek these different remedies in different courts. If they want maintenance, then they can go to the District Court or to the High Court, but if they want custody of the children, they must go either to the High Court or to the Circuit Court. If they want a judicial separation, they must go to the High Court.

This has been very well summed up by Alan Shatter in his book "Family Law in the Republic of Ireland" where at page 21 he says:

There is no logic or policy behind the way in which jurisdiction to entertain different types of proceedings is distributed throughout the judicial hierarchy. Family conflicts, particularly those that arise as a consequence of marital breakdown, frequently require the legal solution of a variety of issues, e.g. questions concerning maintenance, the matrimonial home, the right to live apart, guardianship and custody of children, may all need to be determined. At present different legal remedies often have to be sought in different courts, each matter be examined in isolation rather than as a part of the family controversy.

He goes on to show that, although the District Court is the court that is most accessible to people—for reasons of being less expensive, with less cumbersome procedure people can more easily get into it—it has the narrowest range of jurisdiction in areas of family law. All too often the remedy on paper requires proceedings in the High Court. But tell them that in a working class area in Dublin and you will get a big laugh, because it is not a remedy that is open and accessible to them. In reality they are denied a remedy under our system.

There are three advantages of a unified family court system, a family court structure, including within it an appeal structure. First of all, it would save time and expense for litigants. Secondly, the court would be able to look at the whole dispute situation and make a number of separate orders or decisions affecting that whole situation. These might pertain to the question of separation, maintenance, custody, ownership of the matrimonial home. The whole lot would be before the same court and the court would be able to examine the situation and call for whatever support was needed from the other backup services, whatever kind of report might be necessary, a psychiatric report, a child report, or whatever it might be. The third advantage is that the decisions are more likely to be consistent. One of the harrowing problems under the present system is a lack of consistency. Parties may succeed in part of seeking their solution and then find their way blocked in another court at another level of jurisdiction and may therefore be extremely frustrated.

Apart from needing a unified court structure to avoid this immense fragmentation in jurisdiction which involves the litigants in great expense, in confusion over the remedies, and in lack of a unified and consistent approach by the court, another basic defect in the present system is in the internal procedure of the courts as they are operating at the moment. We need a radical change in this procedure for family disputes, because the traditional, formalised, adversorial procedure is unsuited for family disputes. It is more likely to generate a bitterness and recrimination between the parties if they have to start alleging so-called matrimonial offences, and if they have to start fighting bitterly in this way.

This is probably most noticeable in cases where there are children involved, where you have two adults contesting in an adversorial way, giving rise to great bitterness and recrimination. Somehow at times the actual best interests and welfare of the child may get lost in this proceeding. I am well aware that under the Guardianship of Infants Act 1964 it is clearly stated that in any proceedings affecting the custody of a child the welfare of the child is the paramount consideration, but the procedure does not necessarily make this easy to ensure. It may be that, because of the formalised adversorial system, the judge must receive the evidence offered by the parties and whatever they bring into court is what he must then try to make a decision on, and make a ruling on.

The problem is a basic one, and it is that resolving family disputes is much more than vindicating rights. It is a welfare function. It must take into account the welfare of the parties and in particular of any children who are involved. Therefore, I believe that the whole approach must be a very different type of approach from the present one. If it is necessary to reform the procedure, then I also believe that in a similar way it is necessary to reform some of the remedies which depend on the commission of offences, which at times require adjudication by a jury to decide whether or not a party has committed a matrimonial offence and which side will win ultimately in the particular proceedings. I would agree with Alan Shatter and others who called for the abolition of juries in these cases. It is an appropriate function.

Another defect in the present system, another need if we are to have reform in our approach to family law, is in the training of the judges who will sit in a unified family court system. They require special preparation for a particular function which is different from the common law jurisdiction exercised by the court. They need preparation and training in psychology and in family welfare problems. In the limited practice I personally have had in family law areas, I have at times despaired at the attitude of the judge who simply does not understand what the basic problem is, because he has not been on the breadline himself. He has not got a knowledge of the deep problems of the parties before him. He does not speak the same language. He does not have the same terms of reference. He just does not understand, and the parties leave the court wondering why they were ever there in the first place. The proceedings have not been the slightest bit relevant to the problem they have and the judge is not prepared and trained for the job he is expected to perform. The procedure does not help him. The remedies do not help him. The whole thing is wrongly orientated.

I believe the approach to establishing a unified court structure should first of all accept that you need a comprehensive family court system to deal with the following matters, to deal with nullity of marriage, judicial separation, custody of children, affiliation proceedings, maintenance and alimony, family property, provision for children on death, and permission to marry. The type of structure which is necessary is one where you would have a family court composed of permanent family court judges. There would probably be a necessity for a family court of this sort located in Dublin, maybe several of these courts located in Dublin, and provision for a family court going on circuit—or maybe more than one family court going on circuit —in the way the Hight Court goes on circuit at the moment. The court should be extremely accessible. We should get rid of these very formalised procedures, these petitions for nullity which exist for the moment with highly antique language used by the petitioner, the pleadings used for judicial separation which effectively prevent any individual from going into court without the assistance of a barrister and solicitor, and getting involved in this very formalised procedure which has a built in delay.

An essential component of this kind of court structure would be a formal conciliation service. There should be a conciliation board and a conciliation service, and conciliation should be a requirement in any family dispute to be handled by the court. There should be a preliminary stage which would be handled in an expert way, letting people know the kind of family support services which would be available. The emphasis should be on trying to reach agreement at that conciliation stage in the best interests of the parties, and helping them with, if you like, a welfare orientation rather than emphasising the question of so-called legal rights, or so-called legal remedies. If we have this kind of formalised service there should be special training for this and it should involve professional expertise and also ordinary community involvement.

I have to turn now to the other part of the motion, that is, the call for the introduction of a comprehensive scheme of civil legal aid and advice. The timing of this is very appropriate, because we are waiting as patiently as possible for the publication of the Pringle Report on civil legal aid and advice. We have to bear in mind that this committee took almost four years to bring out its report. I would urge the Minister to try to create another type of record, a speed record in taking decisions on and implementing the recommendations of the report.

At this stage, I do not have to spend time arguing the need for civil legal aid and advice. I would hope that this is accepted. I should like to refer to the 1978 Report which gives some useful pointers to the dimension of the problem. FLAC point out that:

Access to the law is the most fundamental aspect of any legal right and yet it is this access that is being withheld from so many people by reason of the fact that they cannot afford to pay for legal services. It was the recognition of this situation that stimulated the establishment of FLAC in 1969. FLAC posed for itself the attainment of the following two objectives:

(1) To highlight the need for a comprehensive state scheme of legal aid in civil and criminal matters and thus force the state to acknowledge its responsibilities in this respect.

(2) To provide legal aid and assistance free of charge to those who could not otherwise afford to consult a solicitor.

Now nine years and 22,421 cases later FLAC continues to provide a free legal aid service and the Government continues to fail to meet is responsibilities.

So it is fair to say that successive Governments have failed to introduce a basic justice in our society, civil legal aid.

The total number of cases seen by FLAC between 31 October 1976 and 1 November 1977 was 6,203. FLAC operate 16 centres and a significant number of these are, of course, located in Dublin. This means that there is a whole area of unmet legal needs in rural areas, in small towns, in larger towns where there is not any FLAC centre. Even in Dublin in the areas where there are FLAC centres, the FLAC centres have to confine themselves to people in the local area. The Coolock community centre have had great problems of people coming from all over the city to try to get advice there because of the unmet legal needs that exist. It is extremely important, therefore, that the Government take a quick decision and implement the need for civil legal aid.

It is equally important that the Minister does not fall for what appears to be a view which I am afraid was evident in the brief reference in the Fianna Fáil manifesto to the question of civil legal aid. I hope the Minister will not create a kind of artificial category where civil legal aid might be introduced, and introduce it in family law problems. I believe this is quite unreal. The breakdown of figures in the FLAC report shows that an immense number of problems relate to landlord and tenant, relate to property generally, relate to social welfare, and are not, as such, family law problems. This would create a further discrimination within the existing injustice. I fully support the plea by FLAC not to confine civil legal aid to family law matters.

As to the type of civil legal aid, again time does not permit me to go into too much detail on this, but I very much support the approach adopted by FLAC in this report of the need for community legal advice centres which reach out to the community, and which are available, therefore, in every local community, that there is a community legal centre providing not just legal advice in a narrow sense, but legal advice and other supports for the people in that community. It is important that community centres of that sort are prepared to take test cases where necessary. There is an insufficient perception of the need for proper standards in the implementation of our social welfare code.

On another occasion I raised the question of benefits under the supplementary welfare allowance. I do not believe that people are getting their proper rights in the matter. I do not believe that there is a proper perception of their rights, of the rules of natural justice, of the implicit standards to be observed once you create rights for people in relation to social welfare, that have to be safeguarded both at the initial hearing and also on appeal. There are a number of other areas in landlord and tenant law where, because people have not been able to afford to bring legal proceedings, maladministration or denial of justice has been tolerated for years. There is also a need for the bringing of test cases by these neighbourhood law centres where a problem is recurring and where it is necessary to bring a test case and stop a type of injustice or establish a particular standard in the implementation of the social welfare code or any other aspect of the law.

I will stop now in order to give full scope to other Senators to contribute. I shall be here for the duration of the debate and I look forward to hearing what other Senators have to say on the problem. We cannot say that we have even begun to genuinely reform family law until we create these two pillars, a unified family court system and the availability of civil legal aid and advice.

Mr. Molony

I formally second the motion. Fianna Fáil believe:

that the concepts of justice and fairness, of the dignity of the individual and of equality before the law which permeate and are enshrined in Bunreacht na hÉireann are very relevant to the political and legal needs of the community. In particular, (1) the existing legal aid system in criminal cases will be improved and extended; (2) legal aid will be extended to civil cases where this is necessary. (3) New informal and less institutionalised procedures and tribunals will be established in relation to family law and child offenders which will have expert remedial and social back-up services at their disposal, as well as informal Consumer Tribunals.

That is contained in the epistle of the Soldiers of Destiny to the people of Ireland last June.

Mr. Brennan

The manifesto, the Senator means.

Mr. Molony

The manifesto. The Minister has been in office for eight months and I hope at the end of this debate he will be able to report to us on the progress he has made in putting this stated policy of Fianna Fáil into effect. It is the policy of all parties in this House and in the Dáil and I am pleased he has given time for discussion of this motion because it is a very important matter.

Senator Robinson has outlined in considerable detail the type of family tribunals or courts which would be proper. I support, in general terms, the ideas she has and I look forward to hearing the Minister's ideas on them also.

The problem with family law generally is that people do not seem to realise the extent of the problems that arise in Ireland, the number of cases that, if legal aid were available, would go before the courts and the number of cases which would go before a less formal court than the existing court system that we have, if such courts were available. As Senator Robinson pointed out, there was no course for lawyers in Dublin prior to 1970 in family law. There seems to be a total lack of concern in the universities and law schools for matters of that nature. We must face it, family law consisted basically of property and contractual rights, and children's only contact with the law that related to them was when they broke it and were regarded as criminals and juvenile delinquents. The social concern that a community with a social conscience might have thought of did not exist in our legal system. In spite of all the pressures that have been brought and the small improvements that have taken place in our legal system we are still very far from having a legal system, a substantive law and court system, that is equipped to deal with the type of family problems we have here. Credit should be given to the Free Legal Advice Centres because they brought the attention of the Department of Justice, of political parties and of the community to the problems that existed for people who could not get access to justice, who were denied rights given to them under the Constitution.

In 1969 the Free Legal Advice Centres were opened and they had three or four centres in Dublin. Their objectives were to urge the Government to introduce a system of civil legal aid and a proper system of criminal legal aid. They also agreed to provide an interim service. Their third aim was to research and report on legal matters that related to the type of problems they dealt with. I had the privilege of being chairman of the Free Legal Advice Centres for most of 1972 and during that time we had a crisis of conscience in FLAC. We felt that the fact that we were providing a service was, in effect, allowing the Government off the hook and to say that if someone wants legal aid they can go to FLAC. We felt that if the Government did not undertake their responsibilities we would close down the centres.

I ceased to be chairman in 1972 and I took an interest in the 1973 general election and I am pleased to say that following that two things happened which ought to be put on the records of this House. First, the Government, through the Minister for Justice, arranged the payment to £5,000 grant to FLAC. That increase has continued over the years and is still in existence. Secondly, the Government established the Pringle Committee which after a long time has now reported on this whole question of legal aid to the Department of Justice. I would have thought that the Minister would have seen fit to release that report so that the public generally could see it and comment on it before the Minister sets about changing existing laws. I want the Minister to consider the immediate publication of that report. It is wrong that reports of committees set up here to consider matters as important as this are allowed to lie in a Department. This is a report which the Department sought, which they now have and should publish even though the Government may not agree with all that is in it. Other people should be given an opportunity of considering its contents and the chance to offer recommendations.

I am concerned that the Free Legal Advice Centres have gone too far in that they have dealt with a massive 22,500 cases, a great number of which are either matrimonial associated cases or concerned with children. If the Free Legal Advice Centres had pulled out a couple of years ago pressure would have been put on the Government and the result would have been the introduction of a system of civil legal aid. This has not happened. I look forward to what the Minister has to say and to what developments take place in this whole area over the next few months. It is a major part of the Minister's function to consider social reform in the area of family law, and priority should have been given to this. It is not good enough that we have heard nothing after a period of eight months.

I should like to support Senator Robinson on the question of family tribunals. In our law schools, family law was not taught because academic lawyers felt that law basically consisted of contract, property rights, rights in tort and so on. There was not a consciousness that the law should apply to the community, that it should have a social content. We all seem to be in agreement that the present system is too formal. I urge the Minister to consider when establishing these informal courts which he referred to in the manifesto, to forget about the existing court system altogether. There is no reason why it should enter into it at all. There is no reason why those who sit as arbitrators or whatever in that court or tribunal should be lawyers. It is desirable that they should have some legal training but they do not have to be lawyers because if one is dealing with a matrimonial problem it is not, as Senator Robinson pointed out—Mr. Shatter did so in his book also—for an accusatorial system, instead what is wanted is an inquisitorial, investigation to see what has gone wrong. Frequently, what goes wrong in a marriage has nothing to do with a difficulty arising between the partners such as adultery. There is a root cause to all these problems.

Some of them arise because of social insecurity of one form or another, unemployment, lack of decent housing, general insecurity in life. Any system set up to try to buttress the present family law or to try to create a good code of family law must bear in mind that the primary purpose of any new Bill or any new establishment that is set up is not just to tidy up the law but to provide an answer to some very serious social problems which we have.

It is important that this court should have available to it sociological services that are necessary. It should have the qualified personnel. As Senator Robinson pointed out, and as FLAC pointed out four or five years ago in a comprehensive report, that is necessary if we are going to review our matrimonial laws. There is a lot of talk about divorce and annulment and so on but we very seldom seem to get to the root cause and ask: why have we got so many family problems here? Why are there so many marriages breaking down? Even though the figures for annulments and applications to the courts for formal separation have increased dramatically, they are only the tip of the iceberg. According to the FLAC report 22,500 cases were dealt with by FLAC and the number of those concerned with matrimonial law is staggering. I do not believe that people involved in Government, political parties, are sufficiently well aware of the extent of this problem. As Senator Robinson has pointed out, the FLAC centres are only in Dublin, Cork and Galway. The Coolock community law centre is concerned only with what goes on in that community. If we gave people access to justice we would be horrified at the extent of the problem we have here with regard to broken marriages. I urge the Minister, when considering the changes he is going to make in this area, to get on to his colleagues in the Department of Health, Social Welfare and the Environment and show them the extent of the problem we are talking about. He should see what can be done to buttress, rather than undermine, the institution of marriage. A lot of other Senators want to contribute on this and rather than go into immense detail I will just like to leave it at that and formally second the motion.

Minister for Justice (Mr. G. Collins)

There is, I believe, a general acceptance of the need to improve a number of aspects of the operation of the courts, particularly in relation to the general area of family law and in relation to young offenders. Certainly we in Fianna Fáil are fully conscious of the need for change in this area, and in our election manifesto, issued before the last general election, we promised that new, informal and less institutionalised procedures and tribunals would be established in relation to family law and child offenders which would have expert remedial and social back-up services at their disposal". That was what we promised, and at a later stage I will remind Senator Molony of what the Government, which his party was involved in promised.

At the same time I am conscious of the fact that the question of establishing family courts raises many serious issues, and a recommendation that they be established is not as easy to implement as might appear at first sight. The concept of a family court stems from experience in the United States of America. The main attributes of the systems established there, as outlined in the Principles of Family Law by S. M. Cretney, are: (i) the court has exhaustive jurisdiction over all matters affecting the family. Thus the family court normally hears cases of juvenile delinquency, child neglect and cruelty, affiliation, divorce, nullity and separation, maintainence, domestic assaults, adoption, guardianship and custody, and property disputes. (ii) It is multidisciplinary both in its decision-taking function and in support facilities. Hence, although lawyers, normally specially trained and experienced, are amongst the judges, so are child psychiatrists, social workers and others with relevant skills. Furthermore the court is not limited to the facts put before it by the parties or their advisers. Proper investigation is made by trained support staff into all the relevant circumstances. (iii) The court is located in a comfortable and wellappointed building, whose furnishings emphasise the conciliar, rather than the forensic, attributes of the procedure. (iv) In general, the emphasis is on making guidance available to those who have family problems. Even if the family relationship is such that divorce or other drastic remedy is the only appropriate solution, the family court aims to help those involved to sort their way through the multiple and confusing sources of aid and assistance. The court sees its role to be as much a therapeutic agency as a judicial institution.

In England the most comprehensive proposals for a family court yet published are those made in the Report of the Committee on One-Parent Families, known as the Finer Report (1974) The Finer Committee state, however, that their approach owes little to American experience or writings, or to any preconceived attachment to the notions of a "family court", but that they have been guided pragmatically by specific considerations emerging from their study of the matrimonial law and courts in England—par. 4.282.

The main principles of the structure it envisaged are: (1) the family court would be a judicial institution applying a comprehensive code of legal principles in family cases; (2) that the court's work would be organised so as to provide the best possible facilities for conciliation; professionally trained staff would be available to assist both the court and the parties; (3) the court would work in close relationship with the social security authorities in the assessment of need and liability; (4) the court would organise its procedures, sittings and administrative services and arrangements with a view to gaining the confidence and maximising the convenience of the citizens who appear before it.

It is interesting to note the reference by the English Law Commission in its Report on Matrimonial Proceedings in Magistrates' Courts (1976) to the Finer Committee's recommendation on the establishment of a family court. The Law Commission, in remarking that the question of a family court was beyond its—the Law Commission's— terms of reference, went on to say:

We merely observe that the formidable, economic, administrative and practical difficulties in the way of establishing such a court were clearly demonstrated by the Secretary of State for Social Services in the House of Commons debate on the Finer Committee's Report. She concluded by saying that the Government could see no prospect of accepting the recommendation for family courts.

In creating family courts a basic problem which has to be resolved is how to reconcile the conflicting policies of, on the one hand, providing quick, informal and inexpensive proceedings and, on the other hand, of providing a forum which will be capable of examining in minute detail and in a comprehensive fashion the causes of marital discord. This conflict is apparent in any analyses of family courts which have been made in other jurisdictions.

Another issue which requires resolution is whether proceedings in family courts shall retain the present fault-based criteria or instead replace them by "no fault" standards which would not seek to allocate blame to either spouse for the break-up of the relationship.

These are but two examples of the complex issues involved in creating family courts. Very careful and detailed studies of all factors involved are obviously essential. These are matters on which the Government will be getting detailed advice from the Law Reform Commission, and I shall also be getting advice from the Committee on Court Practice and Procedure. The Law Reform Commission have included in paragraph 12 of their First Programme the following:

In examining the various aspects of family law, the Commission will consider the best type of judicial or court structure or structures appropriate to deal with the different matters which fall under the general heading of family law.

I recently made a couple of new appointments to the courts committee to replace members who, because of elevation to the bench or for some other reason, were no longer able to act in the role for which they were originally appointed. The committee is now in a position to continue with its very valuable work. The co-ordination of the work of the committee and the commission will be facilitated by the fact that the president of the commission, Mr. Justice Walsh, is also chairman of the committee.

It is right that I should repeat what I said recently, in reply to a Parliamentary Question on the subject of family courts, and that is that while I believe that improvements in the areas I have mentioned are both necessary and feasible, and while I have the fullest confidence in both the commission and the courts committee not only to produce carefully-thought-out recommendations but to do so without any avoidable delay, it is nevertheless necessary to bear in mind that the matters being dealt with are complex and that, therefore, changes must take time.

With regard to the administration of family law, the Government accept the desirability of improving, where possible, court and court office accommodation so as to make it more suitable for the particular needs of family law cases. Plans are already well advanced for providing the courts in Dublin with additional accommodation of that sort in rented premises adjacent to the Four Courts. The accommodation incorporates specially designed chambers for the hearing of cases by the High Court and the District Court, consultation rooms, separate waiting rooms for the parties involved in the hearing, and an interviewing room where applicants for maintenance orders, and so on, can be interviewed in private by court officers.

I had hoped that this new accommodation would have been ready before now but certain unforeseen difficulties, outside the control of the State, arose which held up the project. However, I am glad to say that work on the fitting out of the accommodation has now commenced and the target date for completion of the work is next May.

Provision for accommodation of this sort has also been incorporated in the plans for the restoration of the courthouse in Waterford, and every effort is being made to see what may be possible in that regard at other venues. A special section has been created in the Metropolitan District Court Office to cater exclusively for family law matters. This section is at present housed near the Four Courts and will be moved to the new accommodation to which I have already referred. I might add that the extra work generated for other court officers by the recent family law legislation is taken into account in assessing the staffing requirements of those offices.

With regard to the question of the introduction of a civil legal aid and advice scheme, Senators are, no doubt, aware that I have received the report of the Pringle Committee. The report, which is long and detailed, has been with the printers since Christmas and should be available for presentation to both Houses of the Oireachtas within the next few weeks. I am annoyed that it has taken the printers so long to print it and I have asked them to get it out soon. In the meantime, I am proceeding with my examination of the report with a view to submitting proposals to the Government as soon as possible. In this context, I shall be dealing with the question of legal aid for particular types of cases, including family law cases, as an interim measure. Senators will appreciate that pending presentation of the report to both Houses which, as I have said, should take place very shortly, it would not be appropriate to discuss the contents of the report at this stage.

The introduction of a scheme of legal aid and advice in civil matters is a complex matter. There is evidence of this in the fact that the Pringle Report runs to over 300 pages of typescript. However, I think it would be useful if I were to point to some of the matters giving rise to this complexity. I shall mention just a few.

Firstly, there is the question of assessment of individual legal aid applications. In this respect civil legal aid differs significantly from criminal legal aid. In criminal cases an accused person is brought before the court and faced with specific charges—he has no choice in the matter. In considering an application for legal aid the court has to decide two basic issues— firstly, whether the applicant's means are insufficient to enable him to obtain the services of a solicitor and, where necessary, a barrister, and, secondly, whether the charges are sufficiently serious to warrant the granting of legal aid. In civil cases, however, assessment of an application for legal aid is more involved. In this instance consideration has to be given as to whether the applicant, be he plaintiff or defendant, has reasonable grounds for taking or defending the proceedings, as the case may be. This involves a detailed examination of all the facts in order to determine whether the applicant has a case in law, the likelihood of success and so on. This assessment must, of necessity, be carried out prior to court proceedings and, for obvious reasons, cannot be carried out by the court which is to hear the case. This, in turn, leads to the question of setting up an independent administrative structure to make such assessment. The important thing to bear in mind is that civil legal aid could not be introduced simply by extending the scope of the existing criminal legal aid scheme.

Some difficult issues arise out of the award of costs and damages. Clearly, any costs recovered should be used to offset the cost to public funds of providing legal aid. However, since costs recovered rarely cover the total outlay on legal aid, consideration will have to be given to the extent to which a person in receipt of legal aid, who is successful in proceedings and is awarded damages, should be expected to contribute from such damages towards the cost incurred from public funds in bringing his case to court.

A matter of major importance is the question of a means test and the contributions to be paid by legally-aided parties. At what level of income, for example, should applicants for legal aid be expected to contribute towards the service provided? What income assessment machinery is necessary and how should contributions be related to income and to the cost of proceedings? The Pringle Report naturally deals with these issues but that obviously does not absolve the Government from the task of making its own decisions on them.

The resolutions of these and other complex matters will not, and I stress this, be used as an excuse for putting the decisions regarding legal aid on the long finger.

Mrs. Robinson

Good.

Mr. G. Collins

I mention them simply to indicate that there are complexities which would have to be carefully thought through if we are to end up with a just and workable scheme which I think is what everybody in this House and this Oireachtas and the country wants.

I would like to thank the proposer of the motion for the way in which it was proposed. I would also like to say that I accept fully, when the proposer says that having the motion put by her party on the Clár for this House should act as a spur to the Government to fulfil its election manifesto commitments. I can accept that in good faith from the Senator. My party are fully conscious of our obligations in this regard and we are quite prepared to do what we have to do as quickly as we can.

Senator Molony is back and I am glad because he had difficulty in recognising the document which he read from at the beginning of his contribution. That was the Fianna Fáil election manifesto. I am glad the Senator had it because now at least he knows what we said we would do. In return, I shall let the good Senator know what his party in Government in conjunction with the Labour Party proposed to do if they returned to power after 5 July 1977.

A notice was published in newspapers by the National Coalition which stated:

We will introduce informal family courts to resolve marital differences, children problems, etc., and subsidise legal aid for this purpose.

Mr. Molony

If I may, the only comment I would make is that the National Coalition had a better record in the area of family law than any Government ever had in the history of this State.

An Leas-Chathaoirleach

The Senator is not in order.

Mr. Keating

I want to approach this from a different angle from that chosen by previous speakers because, interestingly, all of them have been members of the legal profession, either its barrister or its solicitor branch. They speak with a degree of expertise therefore that I obviously do not possess. Let me say first what I think is inappropriate for me to do. I fully accept, and I think any reasonable person must fully accept, that a scheme of this sort, to be effective and simultaneously manageable and to be an efficient user of public funds, is difficult to design. Obviously, it is not impossible to design one because the same difficulties enumerated by the Minister apply also in other areas. Society in this and other countries has developed mechanisms and, in some instances quite quickly, for dealing with the sort of difficulties the Minister lists.

We could play a game—I noted it when last the Minister was here—of sticking fingers in each other's eyes on a party political basis. It is true— Senator Robinson said it and I will repeat it—that the record of the Coalition Government on this issue was not satisfactory to many of us who were in that Government as it was not satisfactory to many people in the community. It is also true that in the previous 16 years when many of these problems were pressing and were there to be seen by those who were concerned about finding solutions to them, the record of the Fianna Fáil Government for a much longer time was not good either. We are not having an auction as to whose record was better if we have a stim of sense. We are not playing that sort of idiotic, party political game. The Ard-Fheis is over for the moment and we have none of them upcoming, and so we are trying to talk about it seriously.

Nobody's record is good. That is a fact of our society. The problem is serious. That is another fact of our society. I was very interested in what Senator Molony and Senator Robinson said about FLAC. We have got to an extraordinary situation in the country when, over a decade, there have been 22,500 cases dealt with by a voluntary organisation. That built up a very small base in 1969. In the last full year, up to 1 November 1977 it was running at an annual rate of 6,250. If you took that over a decade you would be talking—if it had been at the same rate as it was in the last full year over the whole decade of its existence—of about 60,000-odd cases. It is really a measure of the lack of seriousness of all of us as legislators that this has been allowed to develop in this way. The people doing it are high-minded people. Perhaps high-mindedness is a common commodity. We are all great solvers of problems verbally. Late at night we solve everything. But here are people who are not just high-minded but who have devoted a great deal of time and practical effort to this cause, a most remarkable piece of voluntary activity which, to some extent, and I think this is necessary, restores one's faith in the legal profession because so many legal people have behaved so well and so altruistically. This has not been a characteristic of the legal profession. I will refer to that later. But in this instance it is interesting to see that 43 per cent of those 22,500 cases, on the breakdown given in the most recent FLAC report, are in the area of family law.

This surprises nobody because we see the evolution of society. We see that the image of the law is changing. In my view not just the image but the role of law is necessarily changing and changing quite rapidly. I wonder if we realise at the level of a Seanad, the level of respectability, the level of this sort of discussion, just how much alienation, how much sense of profound distrust and hostility exists towards legal institutions and law in general among the young, particularly among the working class young. I do not say that with any pleasure at all. I profoundly believe in law and in the upholding of law but that, in the end, has to be done by commitment to it and not in an authoritarian way. The extent of alienation—it is a catch-phrase, but it is a real thing—in our society now is terrifying. The world is becoming a very difficult place to govern. The law used to be simplistically authoritarian and enforced. Working-class people had not many illusions about it. It was about property: it was about keeping them in their place and they distrusted and disliked it. They believed it was not for them and they felt that they had no access to it and that if they did by accident raise enough money to get access, they would not get justice even if they got law. I do not describe any of those things with pleasure. I am saying that is the way it was and that is the way, to a remarkable extent, it still is and because it is so, it is desperately serious and it becomes more serious every year because the pace of change and the extent of alienation increase. But so do the demands of ordinary people as education improves, as the central democracy improves, but not as an abstract statement in a constitution or some other document but as a sense of reality, ordinary people feel that they have rights much more extensively than they felt they had them half-a-century ago. Also, the rules of life, all the rules, are continuing to become more complex and we are much less an insulated society than we were. All the forms of communication in the world bring the mores of other places to us with increasing rapidity, so that the culture shock and the future shock—these are cliches but they describe real things— are producing more serious effects all the time.

Let us say a word about money, because it is a real preoccupation. I think if there was a reason why we did as little as we did in our period of office it was because the argument was: it is a desperately difficult time; it is the worst recession for half-a-century; this is going to be very dear and so we cannot afford to do it. It is not a good argument in moral terms or perhaps political terms, but it is a very good argument in practical terms. Let us make this money argument. The techniques are not going to be particularly easy but are perfectly possible. Of course, if you identify a problem and get some reasonable experts to work on it, they produce answers. I shall not try because I believe in expertise and I believe in those who understand the legal system and who have demonstrated their goodwill many times, such as the FLAC people, coming up with the answers. I do not think it is for me to say do, x, y or z: that would be talking off the top of my head. I do not understand either the necessities or the limitations and the difficulties sufficiently well to make practical suggestions. I know the problem is technically solvable; so does everybody else. But if we turn to the money, can you afford it? What is the big argument? I would not presume to say what happens at a meeting of the present Government, but I recall meetings of another Government—and I would attribute the same basic benevolence and desire to solve problems, the desire to do well, to the present Government that was exhibited in our time—when the answer always was: of course nobody objects to the idea but look at what it costs. It is a real answer for a poor country, a real difficulty.

Let me put it this way to the Minister and indeed in general to those who argue against the cost aspect. The extent to which alienation is producing all sorts of family difficulties whether between spouses or whether in regard to children or whatever, is hard to quantify in terms of what it costs society, but it is a very large cost. If you do your arithmetic over a half-a-year or a year and, perhaps if you do it over five years, you are not simply saying: "We would add to the budget £x to structure this Bill; we all agree that it is a necessary thing but the structuring of it is too expensive." That is not the whole of the arithmetic. The other part of the arithmetic is that you release yourself from other charges on the State, on the public purse, if you can get a system which can head off trouble, which can prevent breakdown and, most especially, do whatever can be done in regard to the spouses which stops the development of a significant portion of a young generation who are hostile to society and who are basically destructive. It is not so easy to quantify what an alienated and socially destructive young person costs society. But it is a perfectly real sum of money nonetheless which can be put on the other side of the equation in regard to assessing the cost of setting up a system of this kind, because if one comes back to the fundamental users' argument, access—I am, in fact, in what I have to say, and I have not a great deal more to say, making the plea from the point of view of a total non-expert, but someone who has functioned as a Deputy and functioned in the political world—the need, I think, is obvious. The sense of injustice that people feel because others can afford something which they cannot, is obvious. I do not think anybody will argue about that.

The intensity of upheavals in the area of the family and the destruction this is producing in our society for the young is obvious. The argument specifically in regard to family courts is an argument for a changing role for law which is not just a regulatory role but, if I borrow a word from another area of human activity, also a therapeutic role.

An Leas-Chathaoirleach

I would like to inform the Senator that he has two minutes.

Mr. Keating

I shall finish with this one plea. The plea is the following: I think all speakers have rightly said that it is not a party political issue, because nobody argues about the need. None of us has a good record in the past so there is no point in swopping our inadequacies down the decades: we all have those inadequacies. The task is, therefore, to do something as quickly as possible which is as practical and realistic and as effective as possible at the most reasonable cost, because this should not be, any more than any other service to the public at large, a hole in the ground to throw money into.

Coupled with the assurance to the Minister that this side of the House will, I believe, see reforms in realistic and practical light and when they are worthy of support we will certainly support them and we will not take it in a partisan way, I wonder if one might raise the question whether the whole structure of law as it currently exists is much too expensive on society. My own belief is that it is obstructive and much too dear in relation to the service given, and I feel that in the streamlining of many aspects of the law savings might be engendered which, if we take it up in a practical way, which hopefully would be by reform—and this is where the Coalition did have a good record and were trying to do things—would go a long way to offset the cost. The whole question of fundamental reform of the law in general, of its efficiency and of its social cost, is raised by this issue. It is not for immediate solution but it can make a contribution to savings which would offset the very real costs that must accrue in this area if equity is to be achieved.

Mr. Brennan

This motion which calls for family courts and civil legal aid is in line with the Fianna Fáil manifesto and with the commitments given in that particular document. I, for one, as I am sure all the Senators do, welcome this public debate on this particular matter in this House as it affords us an opportunity of emphasising our understanding of the need for a more sympathetic, a more humane and a less degrading way of dealing with the many family problems which still exist in our society and appear to be increasing at the pace of modern society. It is to the shame of all of us as a society, as a people, that we have not managed over the generations to grapple fully with the plethora of social, personal and legal problems which face families in this country: young offenders, cruelty to children, adoption, marital breakdowns, separation, custody, property disputes—the list is endless. It is sad to see, for example, a young wife with children having to drag her husband through the District Court seeking maintenance money for the upkeep of what is left of the family with no effort, in my view, by the court at real understanding or reconciliation and with little or no back-up of professional services, either remedial or social. This is one reason why family courts are important—to remove personal, difficult cases from the strictly cold legal world into, in the words of our own manifesto, a new, informal and less institutionalised structure. I appreciate, as do many other Senators, that there are many intricate legal obstacles, as the Minister has pointed out, in the way of these new courts, but I would encourage the Minister to tackle these intricacies and complexities bravely and urgently.

There are many families in this country depending on the Minister in this regard and I know he will not let them down. Any system of family courts also requires, if it is to be in any way successful, as the American example given by the Minister shows, full back-up service of child psychiatrists, social workers, marriage counsellors and so on. I agree with Senator Robinson that there is a case for special highly-trained judges in this area.

The question of civil legal aid is, as I see it, divided into two parts. First, it is clear to me that family type court structures could only work effectively where civil legal aid was available to those in need, particularly in marital breakdown cases and in cases involving the custody of children. I am sure we can all think of a situation of a spouse seeking custody of children who is unable to afford the legal costs involved in such an action. Free civil legal aid in other non-family related matters requires much more thought and study. It should be available in cases where the means are totally inadequate and in cases which are personally important to an individual. I see assistance in this area as important but not as urgent or as immediately necessary as assitance in family related cases—I use that expression, family related cases in the broadest sense. I would include matters of social welfare, for example, in that category.

In speaking of legal aid, let me digress very slightly to express an opinion and a reservation which I have in regard to the operation of the present criminal legal aid system. The granting of this aid appears to be becoming more a matter of formal application and to be increasingly less concerned with the proper investigation of the means of the accused. I should like to be assured—not necessarily today—that in considering the introduction of any future civil legal aid, the present criminal aid was satisfactorily operating to the benefit of the accused and, perhaps more important, to the benefit of society at large.

I am delighted that the Minister raised the question of the conditions of courthouses. I do not think that I exaggerate when I say that the condition of our courthouses is disgraceful. They are unheated, uncomfortable, generally antiquated and, in the view of most people, generally unsuitable as courts of justice. I am relieved and delighted to hear of the Minister's determination to change and improve the conditions of Irish courthouses. I wish him well in these efforts, I know that as regards expenditure through the years, the renovation and construction of courthouses tended to be a low priority with most Governments.

Before I conclude I should like to pay tribute to FLAC which Senator Molony mentioned. I am not so upset about the fact that a voluntary organisation has to do work like this. It should move to the State as quickly as possible but through the years and the generations, indeed, voluntary organisations have stepped into the breach and resolved a number of problems. Indeed, but for voluntary efforts and organisations there would certainly be huge gaps in Irish society today. I could go so far as to say that political parties rely for their strength on voluntary effort. So, I do not underestimate the usefulness of voluntary effort, but in this particular case I agree that the effort should move to the State as quickly and expeditiously as possible.

I know the Minister intended to pay a special tribute to the members of the Pringle Committee. I take this opportunity of doing that for the Minister. I should also, while I am standing, say to the members of the Coalition that setting up the Pringle Committee was a useful and a far-seeing step and I am delighted that they had the foresight to take it. It was a good commitment on their behalf but, having put faith in that committee I would ask for a reasonable and responsible approach to what the committee produces, particularly in regard to the pace at which we can implement the reforms sought in this motion, the first steps which are necessary and so on. I make that appeal in good faith.

The Minister mentioned, and I should like to refer to them again, the advertisements which were placed in newspapers during the election campaign by the Coalition parties. They talked of subsidising legal aid for this purpose, "this purpose" being family courts. Unlike the Fianna Fáil manifesto which talks of introducing it they talk of subsidising it. This is the policy, I assume, of the Fine Gael Party. It is important that that is firmly on the record, that this is the policy of the people who have put this motion on the Order Paper; at least, that is what they had in their advertisements.

In conclusion, I am very enthusiastic about the advent of a more humane system, a humane method of dealing with the tragic family problems in our society, and I urge the Minister to overcome the many legal intricacies as quickly as possible and to provide such a system, which is badly needed.

Mr. Harte

May I preface my remarks by saying that even though a motion is put down in the names of a number of Senators it does not follow that all the points that we make will be consistent with those of the first speaker. Frankly, I missed some of the first speaker's thoughts. I propose to put forward some views mainly on how I think the family courts should function, not for the sake of being dogmatic about it, and not putting it in a dogmatic way, but in a way that will be a contribution to some aspect of the matter.

It is only natural that as the family unit is the basic unit of society, at this point everyone should want a more humane approach to dealing with the problems that are created through marriage relationships. For that reason we cannot ignore the question of what type of problem might go into the court. You can talk about a family court but there are things which, in fact, must go hand-in-hand with it, some sort of development in the legislation as well as having a family court. They are inextricably linked. Most people want to have a family and to be a member of a family. The present law assumes that within marriage women are not free, adult or equal. So, there is much missing in this area and there is a great need for protection.

There is no definite mention of the family in the Constitution. There is a reference in Article 41.3.1 which reads:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

Even if this sub-subsection were omitted it would not in any way alter the meaning of the section. It has been judicially observed that this part does not cover the unmarried mother and her child. Therefore, it confines itself to describing the family unit as based on the institution of marriage. The problem of having a family court is one thing but the law is inextricably linked with what you deal with. If you are going to talk about family courts, you must think in terms of updating the law as well. We urge a reappraisal of what the family unit means.

Dealing with the courts themselves, there is the view within our party that such courts should be based on the present court system, that is to say, the District Court, the Circuit Court and the High Court, with the Supreme Court as the final court of appeal. That is one viewpoint. Again it is held by many that the jurisdiction of this court should be limited to civil matters relating to the family, actions for maintenance, guardianship of infants, affiliation. Together with the criminal jurisdiction exercised by the present Children's Court, it would also include any criminal matters which can be properly said to arise out of human relationship within the family structure. We would also like to see the court system exercising jurisdiction over such matters as hire purchase, contracts entered into by a family, actions by landlords against tenants, and in respect of death, for example, the non-payment of an ESB bill. The civil and the criminal aspects could go hand in hand. The view is held by many of us that the cases should be dealt with in camera, and we feel that well-qualified social persons should be there as part of the court to deal with the social aspects of a case so that the court when coming to its decision would have regard to all the social aspects and implications.

The question of the powers of examination would be a consideration of ours, in the sense that the court could call and examine witnesses so as to satisfy itself regarding all the aspects of a case. Instead of having family courts at District, Circuit and High Court levels, we might consider having all cases dealt with by the District Court and where the District Court felt that it had not got the jurisdiction, it would get all the facts, investigate the case fully and send the papers forward to the appropriate court for the final decision. That would present some problems, for example, in the case where there might be a matter of maintenance. The District Court in that case could make an interim arrangement, pending the decision of the appropriate court, of course. We use the District Court as an illustration because we were talking about free legal aid. At the moment this presents many difficulties but with the District Court there is an advantage when financial considerations are a big factor. The hearings are informal and it is more accessible than the other courts. Those are the observations that I have to make. I do not know if I have contradicted something that might have been said earlier. I did not come here to contradict. I came here to try to make a contribution, not in a dogmatic way but just for the consideration of the House.

Mrs. Cassidy

It is encouraging to find that other Senators have been reading the Fianna Fáil manifesto and in so far as this motion calls upon the Government to implement the manifesto, why then it must be, and has been, sympathetically received by the Minister. Senator Molony put part of the manifesto on record. I quote:

The 1908 Children's Act will be amended to bring it into line with modern social thinking; the age of criminal responsibility will be reviewed and the criminal capacity of the child will be assessed at informal hearings;

From this it will be seen that the Government party are deeply concerned with the reform of existing legislation and with the enactment of new legislation in these important areas. During the period of office of the Coalition Government, certain enactments were passed in the area of family law, notably the Family Home Protection Act, 1976, and the Family Law (Maintenance of Spouses and Children) Act, 1976.

Some of the signatories to the motion may be in a position to have a special or particular knowledge as to why the job was left only partly done. It is clear from what the Minister said here this morning that the matter will be more effectively dealt with now by the Fianna Fáil Party in Government. It must be accepted though that, however much the Coalition may have been at fault when they were in Government, they are fully entitled now to urge this Government to implement the enlightened policies of the manifesto.

I am sure the House would welcome, as I would, a specific definition of the term "comprehensive scheme of free civil legal aid". Do the proposers of the motion mean to imply that all civil litigation should be subsidised by the taxpayer? Would this not encourage people not to pay their debts, not to fulfil their contractual obligations, not to compensate those people they have wronged? Would this not encourage people to undertake imaginary or spurious actions in the knowledge that they would not be damnified in costs? In so far as this motion suggests that there is not existing at present equality of access by all citizens to legal advice and remedies, the motion is misleading and takes no account of the many practitioners who constantly give their services without any prior retainer and without any certainty of payment of any sort. Numerous examples can be given of the finest brains in the legal profession having given the professional services to penurious litigants with no other thought in mind than to vindicate their civil liberties. The approach in the manifesto is, I would suggest, a more reasoned one—that legal aid should be extended to civil cases where necessary—but it would be mischievous to suggest that it should be comprehensive in the sense of being all-embracing.

Mr. Cooney

It is quite clear from what we have heard in this debate so far that the question of the institution of family courts is a most complex one. It is clear too that the complexities arise because it is in this area of life that legal and social considerations become inter-meshed in a very complex way. We will have to clear our minds as to what precisely we want in a family court and to do that we have to consider what a court is.

A court is the forum where citizen confronts citizen or citizen confronts the State and has his legal remedies applied in accordance with the law of the land, whether the law be found in statute or in judicial precedent; that is what our courts are. The various headings were spelt out here as to what is included under the term family law. Nullity, guardianship, adoption, maintenance, family property, judicial separations; such things are included in family law; presumably these would be the matters that would come to be dealt with in what is termed loosely family courts. Having listened to the listing of these areas, to the type of problems in general terms which arise under them and the proposed solutions to those problems, it is clear that what many speakers have in mind are not so much courts of law as conciliation tribunals or family tribunals where the main input would be sociological rather than legal. This raises a dilemma because it would be very difficult to put into a tribunal, a court or a forum—we will call it a forum, which is a neutral word, for the moment—a discipline that would give equal status to these two considerations, sociological and legal. A decision would have to be made to come down on one side or the other. Is the tribunal to be based on conciliation and arbitration; or is it to be a court of law where a citizen can call for the law of the land to be applied in his favour, if the court decides that it is in his favour, having heard the facts of the case? If we do not make this distinction there is the danger that a forum is set up which is neither one thing nor the other. The person in charge of it presumably would be a lawyer. He would have to be a judge unless our Constitution is to be changed, and he would possibly have the assistance of assessors or experts, presumably trained in the science of sociology and either amateurs or professionals in the field. Decisions would have to be made as to whether the panel of people sitting in the judicial capacity were to act together by majority or whether the judicial person was to have the final say. All these considerations have to be decided on.

To make a point we will take an example of a husband and wife who are before this forum and that they have marital difficulties and are perhaps looking for a judicial separation. The forum says to the parties, "We do not want you to separate, we think it is in your interest to be reconciled and we are directing you now to go and take advice from a welfare officer, a social worker, clergyman, or from any social discipline you care to mention," and the other party says "No, I do not want anything like that. I want my legal rights under the law of the land. I am entitled to whatever legal remedy I am seeking under the law, I want you to hear the facts and decide whether I am entitled to it. If I am entitled to it I want it; if I am not entitled to it I want my case dismissed. I do not want a big brother coming in telling me how to run my life". In that sort of situation there is a potential conflict unless we distinguish what we mean by a family court. Is it to be a court of law, is it to be a court of sociology, or can you have both in the one forum? This is something about which I would have some doubt. It may be possible to devise compromises between the two potentially conflicting areas and one could have within the one forum a system that would provide law for the parties and at the same time attend to the sociological aspects of the conflict that has arisen.

It is a dilemma that will have to be resolved. That is the essential dilemma. The other matters, such as the nature of the proceedings, whether they are adversary or inquisitorial, whether the surroundings are formal or informal, whether the legal people wear wigs and gowns, suits or pullovers, are all essentially cosmetic things. The essential thing is to resolve the possible conflict between the sociological and legal aspects.

I am glad to hear from the Minister that the Committee on Court Practice and Procedure and the Law Reform Commission are involved in assisting to devise a solution to this problem of family courts. I have great confidence in both of those bodies. When I had the honour to serve as Minister I was very well served by the Committee on Court Practice and Procedure in relation to advice on the question of family home protection and maintenance of spouses and children. That committee have within their membership a wide expertise and a wide practical knowledge. I have no doubt that they will be able to advise the present Minister successfully in this area. There are many problems on which to advise us. The essential dilemma can be resolved.

There are further practical problems of administration. At what level is this court to be inserted in our judicial system? Is it to have a total jurisdiction? Senator Robinson suggested that it should have an omnibus jurisdiction. I think she is right in that, but if you give it total jurisdiction in this area you will then have to provide a large number of courts to deal with the entire country. It is essential in this area of family law that there be a speedy and ready access to a tribunal, and unless you have a large number of courts on circuit frequently you will not have that speedy and easy access and the end would not be achieved. That is a problem that will have to be resolved. Who is going to man the court? Is it going to be a judge with special training, and what sort of animal would he be? Would he be a half-baked judge or would he be a half-baked sociologist? Is he going to have people sitting with him from the community or from outside the community? If they are from the community how would the parties from the community with a case before this forum like their neighbour hearing the intimate details of their family life? If they are from outside the community they will have the disadvantage of not knowing the background of the community. These are all the conflicts and dilemmas that have to be resolved before this problem can be teased out satisfactorily.

I concede that there are injustices within the present system. Many of these injustices arise from the fact that legal aid is not available to people to enable them to seek their remedies within the present system. I would be satisfied that the level of compassion being brought to these cases by judges and by lawyers is at a high level, and it is a level of compassion with understanding and with intelligent appreciation of the social complexities involved. Lawyers do not live in castles removed from ordinary society. Their work, whether it be as solicitor or barrister, takes them into contact with all sorts of human problems on a regular basis. They are fully aware of the complexities of these problems and all the dimensions surrounding these problems even in areas of family law. People may be apprehensive of going to court and the majesty of the law intimidates some people who are not used to this milieu.

This will not be removed by a cosmetic exercise of armchairs and no wigs because any formal proceedings or even quasi-formal proceedings have a slightly intimidatory effect on the person who may be a stranger to them.

A lot of the injustices that exist in the area of family law at the moment could be removed by providing legal aid to enable people to go to the superior courts. There is no difficulty in any person going to the District Court. I endorse what Senator Cassidy said, that generally a person with a family law problem in the District Court will get legal advice without any question of funds being a precondition to it. I am not too sure that the same would be true of the higher court. The number of people who would be available to provide that advice to go to the higher courts would be fewer, because the expense involved by a country attorney in going to the High Court would be substantial and voluntary assistance would not be there to the same extent. It is important therefore that it would be available from the State in relation to family law in the higher courts. A lot of the injustices would be removed and that would give time for careful consideration of the problems to try to resolve some of the dilemmas to which I have referred.

I am very pleased to hear that the Pringle Committee have reported. When I took office there was no question whatever of any legal assistance in the civil field. It was being provided by FLAC on a purely voluntary basis. I considered that to be wrong and gave FLAC financial assistance while recognising that they were a temporary and limited measure in that area. From experience in other jurisdictions I was also aware that this question of legal aid in the civil sphere was immensely complex administratively and had immense financial implications. To try to resolve those I set up the committee under Mr. Justice Pringle and I want to pay tribute to those civic-minded citizens who generously gave their time voluntarily to serve on that committee. It grieved me from time to time during my years of office when this committee was subjected to implied, and in some cases explicit, criticism for the delay in making their report. There was a suggestion that I was interfering with them to slow them up—which was an insult to the status of the chairman and members of that committee—or that they themselves were lackadaisical in their approach. This is a serious injustice to a body of civic-minded citizens giving their time voluntarily.

From what the Minister has said in the debate so far, when we receive this report we will get some idea of the immense complexity of this question of civil legal aid. It could be open-ended financially, for one thing, and the administration could be immensely complex, for another. I look forward to the report being published and, more importantly, to it being implemented. I had indicated that it would be implemented subject to financial considerations but having regard to the Fianna Fáil manifesto and the ease with which money has been made available for things such as removal of car tax, having regard to the fact that £9.75 million released in capital taxation has been given in the budget, I foresee that there will be no financial limitations in deciding to implement fully the Pringle recommendation on legal aid. As a social matter it has a greater priority than relieving the wealthy and removing tax on cars. The Minister, when in Opposition, called for the introduction of a system of free legal aid in the civil sphere. The test now is was he posturing or was he in earnest? We will know when the report is published and when we have his views as to what he intends to do as regards its implementation.

Mr. Lanigan

I am not going to delay the House very long but I would like to agree in substance with the thoughts behind this motion. However, there are a few thoughts that I would like to throw out. The courtroom is not the place in which family matters should be dealt with. There is a certain element of legalistic jargon which goes on in courts and there is also an element in the court system which inhibits people. People go into court and into the courtroom atmosphere and they are not feeling at ease. If they are not feeling at ease in a human situation they cannot get their point of view across. Whatever the new system is going to be called, I do not think it should be called a court system. Whether you call it a tribunal or a court does not make much difference, but it should be taken away from the atmosphere of the courtroom. We are going to have family problems for many years to come whether we establish a new system or not. Until we have an ideal society these problems are going to exist and the complexities of modern society will aggravate that situation. As the pace of life increases women, men and their families come under more and more stress and because of this stress marriages and families can break up. At some stage there is a positive need for remedy whether in regard to formally breaking up the family unit, dividing the property or putting the child into care. These things should be dealt with as humanely as possible and they cannot be dealt with humanely in the courtroom atmosphere.

In the District Court family matters are dealt with in a back room, in which the district justice sits with the lawyers on both sides, and even though the matters are not being dealt with in public there is an inhibition on both parties in the case because they are sitting in front of the judge. They are in a formal atmosphere, and in a lot of cases settlements are made which would not be made if the formality were taken out of the situation. People tend to make a settlement so that they can get out of the courtroom as fast as possible, and that should not happen.

Senator Keating mentioned the alienation of young people and said that they felt that the court was never a place to which they could go to get justice. I wonder how much of this alienation is caused by public posturing. Young people can be alienated by suggestions that they are doing only what they should be doing because the State is against them.

There has been mention of social workers. There is a grave need in this country, as in every other country, for proper training of social workers. There are too many amateur do-gooders going around who are breaking up more marriages and families than they are helping. There should be very formal and long training for social workers. That somebody who cannot get into an Arts course in college feels a wish to be a social worker does not justify that person being sent to try to make peace within a home, or to get justice for the people in that home. That such people are well-meaning does not mean that they work well.

In many cases they are doing more harm than good. The Department of Justice should have a hard and fast look at this and in many cases they should withdraw some of these social workers from the type of work they are doing.

I will not delay the House, but I should like the word "courts" to be taken out of this motion. If a tribunal, or whatever, is to be set up, I would not like it to sit in the same area in which civil litigation takes place. The substantial thought behind the motion is something that Fianna Fáil will back totally and I am sure everybody in this House would wish the motion to go through.

Mr. Jago

I am not a member of the legal profession. I am a layman talking in this sphere. In the way the motion is worded I do not think I could support it, although I support what it intends to do. The way it is worded proposes to introduce a comprehensive scheme of free legal aid and then afterwards it says "equality of access by all citizens". The only way to have the two of them together is that all legal aid in civil cases must be free. I do not think that is what is intended. What is intended is that people should not be prevented from obtaining justice because they cannot afford to obtain that justice. If that is what is meant, I support the motion.

In dealing with this motion we are talking in the sphere of the Minister for Justice, and yet it is a social subject. I wonder could we look at the problem differently. In other words, you have a pyramid and the base of the pyramid is the social aspect. You have the problems and your first attempt is preventive. You are trying to prevent something. If a marriage appears to be breaking up you do everything possible to prevent that marriage breaking up. That is where you have the social aspect as a base. You have your social workers. You have mediation and conciliation. Therefore, you will have some structure which will start at that level first, and eventually at the top of the pyramid you have the irrevocable decision which must be arrived at only at the end of trying to do everything else that you can do to settle it in a social manner. Therefore, it is not really allying the social structure to a court. It is allying at the end some form of final decision, and a structure which would give that final decision to a social situation.

As far as legal aid is concerned, everybody should be able to get legal aid and not be prevented from doing so. But there are degrees. For example, recently the Fianna Fáil Government removed rates from dwellings. Therefore, if a person has been paying a rent to a landlord, and there is an element of rates in that rent, that landlord should reduce the rent by the amount of the rates. If a person is in poor circumstances and this has not been done, and the landlord refuses to do it, then that person should be able to get legal aid to force the landlord to come within the law.

At the other end of the scale you have people who are prevented from obtaining justice. I think I am right in citing this case to explain what I mean. I may not be legally correct. Say you have the Land Commission taking land by compulsory purchase order, the only access to justice people have is by arbitration and, following arbitration, if they are not satisfied they can only take that to the Supreme Court on a point of law which is so expensive that they cannot do it. This question of legal aid goes right down the scale. It is a bigger problem than it appears to be. Having said these few words I support what is behind the motion but I see that it is a very complex problem.

Miss Harney

Most of us would agree that institutions must evolve and adapt in order to survive. In the past, we have been very reluctant to suggest reforms. This has been particularly so in the area of family law and the whole question of the role of the family in our society.

I am delighted there is agreement on both sides of the House on this motion. We may have some reservations about the wording of the motion but our sentiments are all more or less the same. We are agreed that the reform of family law and the whole question of the role of the family in our society must become a top priority for any Government. I was particularly pleased that the new Government and the new Minister this morning made a commitment again to the establishment of a system of family courts and tribunals. I cannot overemphasise how important it is that we look at the tragedy of marital breakdown realistically and compassionately. Those of us who want to maintain the role of the family in our society must ensure that family courts and tribunals, informal ways of looking at the problem of family and marital problems, must be established immediately. It is not just a question of marital breakdowns. The whole problem of child offenders, and so on, must be looked at when we are discussing the establishment of such tribunals.

The important thing about these tribunals is that as Senator Cooney said, they will be informal ways of looking at the problem of marital breakdown. Senator Cooney raised a very interesting point—and, to some extent, I must agree with him—when he asked: are these courts and tribunals to be places where people can have their legal rights guaranteed and discovered, or are they psychological or sociological institutions to try to solve problems? It is my opinion that once a marriage has gone that far— once you bring a marriage to any form of court, be it informal or not—that marriage has broken down and the chances of the problem being solved by anyone are very remote indeed. That is not to say we should not aim at the ideal and the ideal is to try to stop these marriages from breaking down in the first place and, when they have broken down, try and reconcile the couple if that is possible.

There is increased public concern about matters affecting the rights of the individual and the family in our society. The increasing number of marital breakdowns over the past few years must be looked at seriously by the Government. It is not just enough to provide access to legal aid and try to have some sort of remedy. In the first place we must try to prevent these marriages from breaking down. The best way we can do this is by having a complete reorientation of our educational system and the attitudes on which it was based. I feel very strongly that our young people are not adequately prepared for marriage. The duty to prepare someone for marriage falls on parents, teachers, Church leaders and youth leaders. We cannot emphasise enough in this society of ours, particularly in present day conditions when people are getting married younger and younger every year, how important it is for them to be aware of what they are entering into.

The other problem raised by this motion is the question of free legal aid. I would again agree with Senator Cassidy and Senator Jago when they questioned whether it was to be a comprehensive free legal aid system under which everybody would receive free legal aid in civil cases. This is not feasible or practical, and we could not afford to do so anyway. Senator Cassidy said she agreed with the wording of the Fianna Fáil manifesto that, where necessary, people should have access to free legal aid. One of the things guaranteed in our Constitution is that everybody should have equality before the law. If we really mean that, obviously every citizen should have access to legal aid and advice.

Like Senator Brennan I, too, should like to pay tribute to the many voluntary workers, most of them students, many of them friends of mine, who work in many of the free legal aid centres in this city. I am aware of the very bad conditions they work in, the fact that they have little or no resources and that there are a large number of cases before these centres. Many of them are students studying to qualify for their examinations. I am well aware that they put in hours per week. I cannot emphasise how important it is to me that these people get some sort of financial assistance, even in the short term until we establish a proper system of legal aid. Many of them put their studies in jeopardy. They give up their whole social life to looking after the problems of others, and they do it voluntarily. They should be assisted and encouraged in every way.

I agree with the various Senators who raised the problems posed by establishing, first, a free legal aid system and, secondly, courts and tribunals. The Minister outlined the very complex problems involved, and said he was seeking advice. He gave a target date of next May for the setting up of family courts and tribunals. I am delighted this is the case. When Senator Cooney asked whether these courts would be merely places where people would have their legal rights guaranteed, or whether we would try to reconcile marriages, one important aspect he did not mention is the fact that these courts can be a mix of the two. You can have a court where somebody's legal rights are established and, on the other hand, you can have expert advice going with them, the advice of social workers, the psychological help which can be given by psychiatrists, and so on and, obviously the back-up services of welfare officers. There is no need for them to be very rigid. They must be flexible. They must incorporate both ideas. I welcome the motion. Like Senator Jago I am not sure that I fully agree with the wording of it but I know what the intentions of the movers are and I agree fully with them. I just question whether the wording is wise in its present form.

Mrs. Robinson

I should like to begin by thanking the Minister and Senators who took part in the debate for the welcome given to the terms of the motion and the emphasis on both sides of the House on the need for these two basic reforms in family law, the introduction of a system of family courts and the introduction of free legal aid and advice.

Let me begin by dealing with what I think is a non-problem, a legalistic quibble which may have stemmed from my introduction of the motion and my failure to state what is meant by the word "comprehensive". As I will show, it is not a problem as one would think it was from the observations of Senator Cassidy, Senator Jago and Senator Harney. The meaning of a "comprehensive" scheme of free civil legal aid and advice is that it should be comprehensive in extending to all the areas of legal problems. In other words, it specifically would not be to confine legal aid to family law matters.

The Minister in his contribution seemed to indicate the approach might be to establishing first in family law areas. Senator Brennan used a broader terminology, "family related", which would include social welfare problems. I prefer that, once we accept the principle that the absence of civil legal aid is an injustice and a discrimination and affects those at the lower end of the scale, working class people, people who cannot afford it, the homeless, unemployed, and so on. They have not got access to our courts. Comprehensive in that sense means that whatever the problem, a landlord-tenant problem, a property problem, a family law problem, or whatever it might be, a person could be entitled to civil legal aid and advice. Of course, there would have to be some means test involved in a system of civil legal aid and advice. Perhaps I should have made that clear. I talk with the disadvantage of a lawyer. Any lawyer talking about a system of civil legal aid and advice would understand that there would have to be a means test.

The type of means test I should like to see would be the one recommended by FLAC and set out in their 1978 Report, and I quote:

When determining elegibility for any legal aid scheme it is necessary to use some form of means test. FLAC argued that such a test should be inoffensive and generous. In addition, all measures should be adopted to avoid high administrative costs in running this aspect of the scheme. This has not been the case in England where over one-third of the funding allocated to legal aid is consumed in administering the scheme. One way of avoiding this is the use of existing structures of assessment. This is the policy FLAC adopted. We suggested that all medical card holders and recipients of Social Welfare Allowances be automatically eligible for legal aid. For those who do not fall within the above two categories we suggested the use of generous scales of disposable income and capital, scales which would be reviewed regularly by the Board to ensure they bear a realistic relation to the cost of living.

FLAC also suggested that a contribution scheme should be devised for those who would not benefit fully under the legal aid scheme but who nevertheless could not afford full legal fees. Again, we need to be wary of following the English scheme where the contributions paid by the legal aid recipient are very high when compared with the financial assistance provided to him by the State.

I am quoting from a summary of the submissions made by FLAC to the Pringle Committee on civil legal aid and advice. Presumably this question of assessment and the necessary means test will be dealt with fully in the Pringle Report. There is a great advantage in adopting the proposal put forward by FLAC. There is a danger of a great deal of the resources being consumed in administration and we should adopt an attitude that people should be entitled to legal advice in the same way as, under the system in this country, they are entitled to medical advice, because in many ways the two needs are related. As a practising barrister, I can vouch for the number of cases where medical problems have derived directly and specifically from the absence of legal advice and help at an earlier stage. People are thrown back on our psychiatric services, on our child care and child welfare services. They are a very significant cost to the community.

Having, I hope, satisfied Senators that there is not any legal problem involved in their endorsement of the motion, it is interesting that on both sides of the House there was support for the principle of family courts and the urgency in introducing civil legal aid. This will be encouraging to the Minister in bringing forward legislation. He knows that on the principle he should not have any problem in bringing the legislation through this House.

Taking the contributions in the order in which they were made, in formally seconding the motion, Senator Molony drew on his own personal experience in FLAC and paid perhaps the best tribute to FLAC from somebody who had been chairman of that body. He pointed out the dilemma. It really is a moral dilemma for an organisation like FLAC. The more they continued to provide what was, in fact, a matter of Government responsibility, the more this seemed to delay the possibility of an assumption by the Government of that responsibility. I appreciate that the establishment of a committee like the Pringle Committee meant it was necessary to await the recommendation of that body. I accept the fact that consideration of the introduction of a scheme of free legal aid and advice is very complex and involves analysis of a considerable range of problems. However, I join with Senator Molony in saying, since it has taken nearly four years to compile the report and the expertise, let us have a very quick implementation in practice, and let us give access to justice to all our citizens.

The Minister was generous enough to say he felt this motion and debate today would be a spur on the Government to implement the basic reforms. He pointed out that there is a commitment in the Fianna Fáil manifesto. As I pointed out in opening the debate, there is a danger that the response may be narrow in the area of legal aid, and may not be comprehensive in the sense in which I had intended, if it is to be confined in an artificial way to the area of family law or, in Senator Brennan's phraseology, family related problems. It is just impossible to confine problems in that way, because lack of security about a home, property problems, could in fact cause the breakdown of a family and could cause such tension between spouses or tension in their relationship with their family that they are unable to cope with the pressures of living. There is such insecurity that it could drive a rift between the spouses, whereas, if they could get access to legal advice in order to solve their landlord and tenant problem, or property problem generally, there would not be at a subsequent stage a genuine "family law or family related problem". It is not possible to distinguish them in any meaningful or moral sense. I would urge the Government to implement a comprehensive system of free legal aid and advice when they come to approach the problem.

The Minister said he will seek the advice of the Law Reform Commission and of the Committee on Court Practice and Procedure. Obviously the Minister should seek the expertise available to him. I urge the Minister also to seek openly other expertise in our society, in particular, the expertise being built up in the university law schools now, particularly by the teachers of family law, the expertise being built up in some voluntary bodies who are very closely related to this problem and who would be very willing to make their advice available.

One of the problems with the Law Reform Commission is that its composition is fairly narrow. It is now all lawyers. The only non-lawyer, the only sociologist, on it, Mrs. Helen Burke, is no longer a member. So it is narrow again in its overall composition. Unless I am inadequately informed. I think there are still too few full-time researchers for the scope of the programme of the Law Reform Commission. There is, indeed, a danger that the Law Reform Commission may have its credibility damaged to some extent unless it can have more man power and resources, or else farm out some of its research programmes. There are skilled and knowledgeable people in particular areas and these people's services should be availed of and used.

I agree with the Minister that it is extremely important to improve the accommodation in courts, in the existing system, and to ensure that, when we have a system of family courts, they do not have the trappings of the traditional court. Senator Lanigan made this point about the ordinary person coming into court and being unable to communicate, being completely frightened and over-awed by the whole procedure, by the wigs and gowns, and by the terminology which he cannot understand. As well as improving and having a new approach to the court accommodation it is essential—and I am glad the Minister referred to this—to improve the personnel who are implementing the existing remedies in the area of family law, and to have much better official back-up in the courts.

There has not been a significant increase in the number of District Court clerks and officials implementing the remedies in the family law, but there has been an explosion in the number of applications particularly in the area of maintenance, barring orders, and so on. This is leading to delays and to injustice. Although the hearing is in camera people are bunched outside together waiting to go in, and this makes a nonsense of the idea that it is in camera. That is a real problem, and I am glad the Minister mentioned it in his contribution. I hope he will ensure that there will be a very significant increase in the personnel under the existing system and that this will be a priority in considering the new type of court structure.

The Minister referred both to the practice in America and also to the recommendations of the Finer Report. Just to put it on the record, I would recommend that he should consider the very complex, elaborate and well-documented reports of the Royal Commission in British Columbia on family and children's law. They brought out a succession of very detailed, very helpful reports which cover a lot of the complexities the Minister was identifying. We could learn a lot from what has happened in Australia. Australia inherited the same kind of common law jurisdiction we did, and Australia is more like us than Britain. There is more of a catholic influence in the Australian approach to the jurisdiction of the court. They did not make the early changes which were made in Britain which make their system much less like ours. The Family Law Act, 1975, in Australia deals with the matter of divorce. We probably could not deal with it at this stage but hopefully we will be able to go in that direction as soon as possible. In their approach to having a unified family court system, there is a great deal to be recommended in the Australian system.

Senator Keating looked more deeply at the general problem of family breakdown in Ireland. In looking at the statistics of the Free Legal Aid Centres he pointed out that 43 per cent of their workload relates to family law matters. He may not be aware, but I think it is worth noting, that all too often FLAC cannot, provide people with the remedy they want. If a person goes to FLAC—and I am sure if Senator Molony were here he would bear me out—and wants a judicial separation, FLAC have not got the resources. That could cost well over £1,000, so the person is sent away. FLAC are not an answer and those who pay tribute, which I certainly join in, to the work done by FLAC should also be aware of the intense frustration of the FLAC people who have to say: "We are very sorry but we cannot give you that remedy because we have not got the resources". Although FLAC are useful, they are not a substitute for governmental responsibility.

Senator Keating also referred to the very deep problem of alienation and of distrust of our courts. To some extent we have inherited this. We inherited British justice. It will be a great achievement for the Minister if he can give us the full flavour of Irish family law justice, our own approach to the problem of trying to help people who have legal problems. I am glad to see we seem to be very much in agreement about the priorities here.

Senator Keating also dealt in detail with the problem of money. I referred to this to some extent but the question of cost has to be weighed against the very deep dependence of people on the other services, and medical, psychiatric and hospital services, precisely because they have not got early enough legal advice which—as Senator Jago pointed out—can be such an important preventive help to people. If we can reach out to people with legal advice in community neighbourhood law centres, I believe we will take a very significant strain off our medical services. We will cut down drug dependency particularly among married women who have grave family problems and cannot get access to advice. They are on drugs and this is costing the State a significant amount per week. This is the way in which the whole cost factor should be approached.

Senator Brennan urged the need for a more humane approach to dealing with family problems. That sentiment was expressed on all sides of the House. I have referred already to his approach, where we disagree. He would place a priority on civil legal aid in family related matters. In other areas he says this is not an immediate need. I do not agree. Anybody working in the FLAC centres would not agree. FLAC come out very strongly on this. You cannot separate them. If people can get legal advice they can resolve their problems and this will probably help the whole family situation and decrease the far too high incidence of marriage breakdown.

My colleague in the Labour Party, Senator Harte, had some worries that he might be approaching the problem in a different direction from me. In fact, there is no difference at all in our approach. He, too, emphasised the need for accessibility to the court, the need for social supports, the need for proper examination by the court. He emphasised the jurisdiction of the District Court because that is the available one. Whatever kind of family court is created, it must be at least as accessible and, indeed, with the help of civil legal aid, more accessible than the District Court is at the moment. That is an absolute priority. One of the great failures at the moment is that so much of the jurisdiction in family law being in the High Court it is not accessible to the vast majority of citizens. That, in itself, is an injustice and a denial of the constitutional principle that all citizens should be equal before the law.

An Cathaoirelach

The Senator has now used up her time. The House can decide whether she will be allowed to continue for some extra time.

Mrs. Robinson

May I have another five minutes?

An Cathaoirleach

I take it the House agrees.

Mrs. Robinson

It would be unfair to Senators who have contributed very seriously and interestingly in this debate not to deal at least briefly with their contributions.

Senator Cassidy referred to the commitment to change and update the Childrens Act, 1908. I am glad she has sewn that into the record and I look forward to the legislation when it comes. She felt that emphasis must be placed on the fact that lawyers do offer their services without pay. I am not quite sure in what sense she meant that, whether this was to diminish the argument for free legal aid. This is just not an adequate response. It is the old laissez faire attitude which existed before we introduced a comprehensive health scheme also. Doctors, in a charitable way, public spirited doctors, high minded doctors, used to look after patients for no fee, but it was very selective, very personal. If one had a nice doctor that was fine. What we want to create is access to legal advice as of right in the same way as people have access to medical advice. It is as simple as that. Pointing to the individual charity or good will or services of individual lawyers is not adequate. It cannot be administered fairly and it creates in itself its own types of discrimination.

Senator Cooney seemed to be the Senator with perhaps the greatest problem in his approach to family courts. He seemed to have an unbalanced desire to see them introduced but he emphasised the great difficulties and so on and, in particular, he asked if they would be a court of law or a court of sociology. My difficulty with Senator Cooney's contribution is that he defines the purpose of a court so narrowly. He described the court as a place where the citizen confronts the citizen or the citizen confronts the State. That is far too narrow an idea of what a court can be. It is precisely the problem in family law that we still have an accusatorial system where the citizen does confront the citizen, but there are lots of precedents in other jurisdictions, lots of other ways of approaching it.

We want a system where the court deals with the family problem so that it is not just a citizen confronting a citizen. He wanted to know if, when we tried to have special training for judges this would result in half-baked judges or half-baked sociologists. The answer to that is at the moment judges are far too narrow and legalistic in their approach and they need to have a broader, better training and better sense of family problems. I am not in sympathy with the objections Senator Cooney raised.

I dealt with Senator Lanigan's legalistic problem by explaining what I meant by comprehensive and he referred to the need to remove the alienation which Senator Keating referred to. Senator Jago had the same problem about the use of the word comprehensive, which I hope I have removed, and he emphasised an aspect which I have already referred to, and which I certainly agree with him on, the need to have preventive legal advice and legal help so that law does not come in late when the problem is too far advanced and the only thing that can be offered is some sort of inadequate remedial care. As Senator Harney has said that all too rarely achieves the real objective of trying to support the family and help them to cope with their problem and go on living together. Far too often when they come to lawyers there is a legal breakdown situation.

I should like to conclude on a more pessimistic note than Senator Cooney, who said that on the whole lawyers are very compassionate and ready to listen to people. My experience is that in family law matters lawyers are not compassionate and open. Of course there are individual exceptions, and what happens is that those individual exceptions get nothing but family law cases and are overwhelmed by them. In the vast majority of cases people sit in solicitors' offices and get shifted from Billy to Jack and sent away and do not understand. I have met many people coming out of court who do not understand what happened and the solicitor has not even taken the time to explain what the situation was. A person comes and says, I think that something happened but I do not know because nobody explained it. I thank the House not only for considering this motion, and the Minister for his attitude to it, but also for that extra five minutes in order to respond to the debate.

Question put and agreed to.

The Seanad adjourned at 1 p.m. until 2.30 p.m. on Wednesday, 1 March 1978.

Seanad Éireann debate - Thursday, 23 Feb 1978