Family Courts Bill 2022: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Deputy Simon Harris)

I am delighted to be here in Seanad Éireann to commence the passage of the Family Courts Bill. This Bill represents a major milestone on the path to achieving the commitment in the programme for Government to enact a family courts Bill to create a new dedicated family court within the existing court structure and provide for court procedures that support a less adversarial resolution of disputes.

Reform of family justice and access to a courts system that is less adversarial and reduces the costs of dealing with family issues has long been advocated for. This is not new; it has been sought for many years. It is my aim, as Minister for Justice, and that of the Government and Minister without Portfolio, Deputy McEntee, that a reformed family justice system will enable cases to be dealt with more efficiently and in a way that should ensure better outcomes for families and children.

The measures in the Family Courts Bill will be supported by the first national family justice strategy which was published in November 2022. The strategy is foundational in nature, recognising the many issues that currently exist with the family justice system and the steps needed to begin its much-needed reform. The Family Courts Bill will provide many of the building blocks essential for this reform.

The legislative changes put forward in this Bill were supported by the work of the family justice oversight group, which developed the family justice strategy. Its work was informed by a wide-ranging consultation process and I thank everyone who partook in that process. The group heard from those most impacted by their experience of the family justice system, including children and young people, and crucially heard their views on what a reformed system should look like. The strategy, which will be implemented over the next three years, has nine goals and more than 50 actions, with the aim of establishing a strong foundation for a future system which is more child- and family-centred, which supports and protects, and which is more streamlined and user friendly.

I will now outline the purposes of the Family Courts Bill and provide an overview of the main provisions. The Bill provides for the establishment of family court divisions within the existing court structures. There will be a family High Court, a family Circuit Court and a family District Court, each dealing with family law matters as appropriate to its jurisdiction. Each of these family court divisions will have judges assigned to them on a full-time basis.

The Bill provides a set of guiding principles for the family court system to make the best interests of the child a primary consideration in all family law proceedings, to operate in an efficient and user-friendly manner and to encourage active case management by the courts. The courts, legal practitioners and parties to family law proceedings will be required to have regard to these principles in the conduct of family law proceedings.

A further aim of the Bill is to enable a greater proportion of non-contentious family law matters to be dealt with at District Court level, in order to minimise the costs for litigants and to provide local access to our court system. That is important.

A new provision included in the Bill will enable joint applications to be made by spouses or civil partners for judicial separation, divorce or dissolution of civil partnership. At present, one spouse or civil partner must bring proceedings against the other under the adversarial system. The changes should support the use of mediation and alternative dispute resolution in family law proceedings.

Part 1 of the Bill sets out standard provisions relating to the Short Title, commencement, interpretation, repeals and expenses. The Bill will apply to proceedings under the enactments listed in the definition of "family law proceedings" in section 2. Section 3 will enable the Minister to make regulations to prescribe additional enactments for the purposes of the definition of "family law proceedings".

Part 2 provides for guiding principles to help ensure that the family court system will make the best interests of the child a primary consideration in all family law proceedings and will operate in an efficient and user-friendly manner. The courts, legal practitioners and parties to family law proceedings will be required to have regard to these principles in the conduct of family law proceedings. Key principles include: ensuring the best interests of every child involved, or likely to be affected, by the outcome of family law proceedings are primary considerations in the conduct of the proceedings; ensuring that the child's views are ascertained, where practicable, and given due weight, having regard to the child's age and maturity; encouraging and facilitating as far as possible the resolution of issues in dispute by means of alternative resolution methods, such as mediation, except in cases where this would not be appropriate, such as domestic violence cases; promoting and engaging in active case management practices; and conducting proceedings in a manner which is user friendly for the parties, identifies the issues in dispute, minimises conflict between the parties as far as possible, facilitates agreement being reached on the resolution of the issues in dispute, and is expeditious and likely to minimise costs of the proceedings.

The introduction of guiding principles for the conduct of family law proceedings provides for a particular focus to be placed on the needs of the families involved in proceedings by the courts, legal practitioners and the parties involved in the proceedings.

Parts 3, 4 and 5 make detailed provision for the establishment of the family high court, family circuit court and family district court, respectively. Each of these courts will have a principal judge and a number of ordinary judges assigned to it. The number of ordinary judges may from time to time be fixed by Acts of the Oireachtas. Judges assigned to the family high court, family circuit court, and family district court will have met certain criteria, including that, by reason of their training or experience, those judges are suitable to deal with matters of family law. Ongoing professional training in the area of family law will be required of family court judges.

To ensure proper and effective management of these court divisions, the Bill provides that new positions of principal judge of the family high court, family circuit court and the family district court will be created to manage the business of each of the family court divisions, respectively. The principal judges will also be empowered to issue practice directions in relation to family law proceedings in the family court divisions. The Bill provides for the assignment of the principal judges by the president of the relevant court having had regard to recommendations regarding the selection process made by the Judicial Appointments Commission.

The Bill also provides that the family court will sit to hear family law proceedings in a different building or room from that in which other court sittings are held or on different days or at different times from other court sittings, with limited exceptions.

Part 6 provides for the establishment of a specific family law rules committee. Currently, rules of court relating to family law proceedings are made by the District Court rules committee, Circuit Court rules committee and Superior Court rules committee. Establishment of a specific family law rules committee would ensure the rules in relation to family law proceedings are coherent and applied with consistency across all levels of the family courts. As an alternative to a specific family law rules committee, provision is made in Part 6 for the establishment of family law subcommittees of the existing court rules committees. These subcommittees would have the function of proposing family law rules to be made by those rules committees.

Part 7 provides for amendments to existing courts legislation to include appropriate references to the new family court divisions. I will outline some of the most important provisions of Part 7. Section 59 provides that judges of the family courts shall undertake training courses as required by the principal judge of each court in consultation with the president of the court in question and in consultation with the Chief Justice.

Section 68 provides that where an enactment confers concurrent jurisdiction on the family courts, an applicant should not initiate proceedings in the family high court without special reason to do so. Where proceedings are initiated in the family high court without special reason, the court may transfer those proceedings to a lower court.

Part 8 includes key provisions of the Bill relating to the jurisdiction of the family high court, family circuit court and family district court, and provides for the amendment of enactments relating to family law proceedings. Section 69 provides for the family district court to have unlimited monetary jurisdiction in consent cases. Where a judge of the family district court is satisfied that the parties have reached an agreement on the subject matter of the proceedings and they have consented to the proceedings being determined by the family district court, the proceedings can be determined at family district court level without a limit as to monetary jurisdiction.

Section 70 provides that the family district court may send forward proceedings to the family circuit court where there are special circumstances in the proceedings that would make it more appropriate for the proceedings to be dealt with by that court. Section 71 provides that the family circuit court may remit or transfer proceedings to the family district court where it would be more appropriate for the proceedings to be dealt with by that court or if it is considered that the proceedings should have been commenced in the family district court in the first instance.

Part 8 provides for the family district court to have jurisdiction in a wider range of family law proceedings than is currently provided for in family justice legislation. It is proposed that the family district court will have jurisdiction concurrently with the family circuit court and family high court in judicial separation, divorce and dissolution of civil partnership proceedings, as well as cases taken by qualified cohabitants. The new jurisdiction of the family district court in divorce, judicial separation and dissolution of civil partnership proceedings will be subject to a monetary jurisdiction limit of €1 million in relation to the market value of any land to which the proceedings relate. The €1 million limit may be altered by ministerial order, up to a maximum of €2 million. These changes are provided for in sections 80, 84, 85 and 90. Similar changes are proposed in relation to cases under the Family Home Protection Act 1976 and the Family Law Act 1981, as provided for in sections 76 and 78. The monetary jurisdiction limit will not apply in cases where a judge of the family district court is satisfied the parties have reached an agreement on the subject matter of the proceedings and they have consented to the proceedings being determined by the family district court.

Part 8 also proposes to increase the monetary jurisdiction of the family district court in maintenance matters. Section 75 provides that the monetary jurisdiction of the family district court in relation to payments that can be ordered under the Guardianship of Infants Act 1964 will increase to €500 per week for maintenance and €50,000 for lump sum payments. Section 77 provides that the monetary jurisdiction of the family district court in relation to maintenance applications under the Family Law (Maintenance of Spouses and Children) Act 1976 will increase to €1,500 per week for the support of a spouse or €500 per week for the support of a child. Section 90 provides for corresponding amendments to the maintenance provisions in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

The jurisdiction of the courts under the Child Care Act 1991 will be changed by section 82 to allow complex child care cases to be brought to the family circuit court. Special care cases will continue to be dealt with at High Court level by the family high court.

Part 8 also amends the Judicial Separation and Family Law Reform Act 1989, the Family Law Act 1995, the Family Law (Divorce) Act 1996 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to allow for joint applications to be made under those Acts for judicial separation, divorce, dissolution of civil partnership and ancillary orders.

Part 9 sets out the detailed rules applicable to attendance at and reporting of in camera family law proceedings. Part 10 contains transitional provisions which seek to ensure continuity of the administration of justice. An important provision is section 103, which provides that any order made in family law proceedings by the High Court, Circuit Court or District Court which is in effect immediately before the operative date will be deemed to have been made by the corresponding family court division. The section also makes provision relating to orders made outside the State that have been recognised by the Irish courts.

Schedule 1 sets out the legislative provisions to be repealed by the Bill. Schedule 2 sets out amendments to be made to various enactments.

As regards pre-legislative scrutiny of the Bill, the general scheme was referred to the Joint Committee on Justice for pre-legislative scrutiny in October 2020. In December 2021, the Chairperson of the committee wrote to the Minister for Justice to advise that the committee had agreed not to undertake further pre-legislative scrutiny on the general scheme and that the submissions received by the committee would be referred for information and attention as appropriate in finalising the Bill. These submissions were carefully considered during the drafting of the Bill. It is a difficult but common reality for families to find themselves dealing with the breakdown of a relationship or trying to resolve a custody or maintenance issue for a child. These interactions often take place when people are at their most vulnerable and, unfortunately, the family justice system as it operates today does not offer a smooth transition through changes in a family's life. Long waiting times to access the courts, multiple journeys to court buildings as well as overly bureaucratic processes, a lack of available information about the system and, at times, high legal costs add to the already heavy burden of stress on families.

It is important to ensure children are at the centre of the family justice system. As of 2015, the voice of the child in childcare, adoption, guardianship, custody and access proceedings have been enshrined in the Constitution. As such, it is now the responsibility of all those working within the family justice system to ensure the voice of the child is heard and considered.

A key action of the family justice strategy is to examine the role of expert reports in family law processes, including their commissioning and availability, their content and use and making recommendations regarding their future application and function. I asked my officials to prioritise this critical work and I am pleased to confirm that work has now commenced on this action. My officials will be engaging with key stakeholders via the family justice implementation group in coming weeks and months to ensure the recommendations take account of their expertise and experience and bring about reforms to ensure the courts are supported by the best advice in ensuring the rights and needs of children are fully met.

I thank Senators for the important work they will do on this legislation. I highlight the work being done by former Chief Justice, Mr. Frank Clarke, who is leading a group examining the future of the civil legal aid scheme. Senators will be aware this scheme supports those of limited means to access legal advice and representation in a range of civil law matters. The reality is, however, that the majority of cases for which advice and representation is provided are family law in nature. The review is under way, with separate stakeholder and public consultation ongoing until tomorrow.

The Family Courts Bill marks a significant step forward. It is important we pass the legislation and make sure our family law justice system is child focused and child friendly and is reformed to meet the aspirations of Members of this House and the expectations of our citizens, of families at difficult times and, indeed, of our Constitution in ensuring the child's voice is enshrined.

Senator Mary Seery Kearney

I commend the work the Minister has done in the Department of Justice and the work done by the Minister, Deputy McEntee. It seems no time since this was announced, in Government terms at least, and now here we are.

We are commencing with the Bill and I really welcome that.

There is no doubt that the family court and family proceedings have their own unique flavour and unique province. One is dealing with relationships that are, in most cases, going to have to endure for the entirety of the individual's and the child's life. These are people who must continue to engage. One day, for example, the parents will be at their grandchildren's christening together, so it would be good to have proceedings as harmonious as possible. I am very fortunate to be in a very functioning, loving and blended family, but that is rare enough. It is unfortunate when there is a lack of maturity or a huge amount of wounding, but at the heart of it there is an adversarial system that is not suited to the nature of family proceedings. There is slow access to the court and it takes a long time to resolve. In that time of waiting it exacerbates people's hurt and their sense of frustration of not being able to move on.

In this, I am aware of a couple of things. Obviously, this can move very quickly and is not dependent on the building of a new family court building in Hammond Lane, as is promised, but do we have any idea of the timeline on that? That would be useful even from a practitioner point of view: people are either at Smithfield or in Dolphin House. I have had the experience of Dolphin House when I went for guardianship of our daughter, taking along my husband who was fortunately consenting to guardianship. The facilities there need to be upgraded. They need different facilities. When there is such an intensity of feeling in such a tiny space it make things incredibly hard. It is very important. I ask for a timeline for that.

I am aware that Women's Aid has a number of concerns, which will come to the fore when the Bill is on Committee Stage. I would ask that we make sure we are engaging with them.

Part of this Bill led to a promise on the rates of pay for solicitors with the Legal Aid Board. I will touch on this matter very briefly. Uniquely, the solicitors who go in to work with the Legal Aid Board do not have the same opportunity to come in at points and the grade as if they had joined the Office of the Director of Public Prosecutions or the Chief State Solicitor's office. They come in at a starting salary based on how long they have been working there. The unfortunate point of this is that it is very low wage to start. There is, therefore, a rapid turnover of very good and committed people in there, and it will not attract the very high-calibre and experienced people because they would have to take a wage cut to work at the Legal Aid Board. As a consequence, families and those in need of solicitors in the Legal Aid Board do not get the benefit of very experienced people, and the turnover of people is just too much. I had raised this early on with the Minister, Deputy McEntee, and the view was that within the context of this Bill coming into being, it would be looked at. It is important this happens because of the experience lost.

With family law it is so urgent that we move to a different method. I practised in this area for a very short period of time and realised very quickly that my aptitude was not in that direction when at one point I found myself shouting at my client outside the High Court for the manner in which he was leaving his children without funding and without support, and for how intolerable I thought that was. I thought to myself that I could not adequately go in and do this. I would be breaking every vow I had ever made when it came to the law. It is, therefore, not an area I practise in.

Integral to this, if we are very much making sure that the best interests of the child are at heart, is that it is really important to support this with training and support for practitioners in the area. The tendency to write with a very adversarial emphasis is still there and it is important that not only do we have training but also on the other end of it to have a complaints mechanism. I believe there is a necessity to engage with the Bar Council and the Law Society in that regard to ensure they are practising in a different way once the Bill comes into being.

I will use my last two minutes of speaking time to raise a matter that is particular to my own heart, which is in the area of surrogacy. I am aware that the officials with the Minister today have worked extraordinarily hard in this area. I have asked in this House for an idea on the timeline for when the legislative amendments will come in, so they can commence on Committee Stage. I have been ruled out of order as we are not allowed to ask that. I will just have to find a different way asking.

Right now, today, there are women up and down this country who do not have access to their children because their children have been weaponised in the breakdown of that family. Today, there are applications to court for the court to take the child or children into care, or that the court intervenes where unreasonable activity is going on where the weaponising of the child is just horrific. This is while women do not have a right to a parental order to their own child. This applies also to same-sex couples.

I happen to be dealing with a number of women at the moment who are allowed to see their children for one hour per week, supervised, so this will coerce them into settling on the family home, or settling on other moneys that are owed, or something like that. It is really quite horrific. I read the solicitors' letters and it is outrageous. I have no means of making a complaint, because it is an adversarial system, but if I could I would. The day will come when I will read for these people.

I have people ringing me several times a day about how unjust it is. We need to get to a place where the security of that family and the interests of those children, who are much wanted and much desired, are at the heart of the system. There are women who are cancer survivors who are now in a place where they are controlled with regard to access to their children. It is coercive control and it is all of those things as well. We also have people with terminal prognoses who do not have a pathway to ensuring they have the oversight of their children.

Given that we are talking about family law, I would urge the Minister for Justice to use his good office to accelerate the delivery of the assisted human reproduction legislation, and to make sure there is no delay when it comes to the establishment of a regulatory authority. Given there are parental orders in respect of fathers, there is no reason we must wait until the establishment of a whole authority, no reason we cannot make direct applications to the courts and that court registrars do not undertake to notify the surrogacy register and donor register in those instances. There is no reason this could not be put in place. It is really important that this happens.

Senator Gerry Horkan

I thank the Minister for Justice, Deputy Harris, for being here. It is my first time to talk with the Minister since his elevation to a second ministry as the Minister for Justice, and I congratulate him on that. I thank the Minister for his very comprehensive opening statement. What tends to happen in here is that we all repeat our briefing notes, which the Minister has already said in his opening remarks, so I will not do that. I thank the Minister for the very detailed analysis of what is promised.

I am not a practitioner, as are Senators Seery Kearney and Martin. I am not a barrister with the familiarity of the courts system as they have, but certainly it surprises me as to how it has taken so long to get to where we are. Why have we not done this years ago? This does not really matter now but it surprises me that all of these very sensible provisions are not in practice. I know it was in the programme for Government, which was agreed by the three parties, including Fianna Fáil. It is children centred and has had lots of consultations. There would be specialist judges dedicated to doing this full time, so they would get better and better at it and it would not be something they would dip in and out of. It would also be separate buildings or separate parts of buildings so the families and children are not interacting unnecessarily with other adults. This would be very positive because while it is a traumatic thing for anybody of any age to go to court, it is particularly so for families where children are involved in having to go into court. It is very helpful that it is being done in this way. This is what strikes me. Why did we not do all these very sensible things long before now? That said, the Bill is very positive. I certainly welcome it and I certainly do not want to delay the passage of the Bill through the House.

It is very useful that we are doing this. The Minister even gave us the word count of his speech. It is 18 minutes long and comprises 2,500 words. I am certainly not going to make a contribution of 2,500 words and 18 minutes by way of response. This is welcome and useful legislation. I am interested in the timeline as to how fast we can get it both through the Houses and in respect of what happens thereafter, that is, how soon will we see a building, see judges appointed and so on. These things obviously take time and we need to do it properly but it would be to the benefit of all of the users of the courts, the practitioners and, more importantly, the families and the children affected in particular, were this to happen sooner rather than later. I welcome this important Bill and support it.

Senator Vincent P. Martin

Cuirim fáilte roimh an Aire go dtí an Seanad inniu. I also thank him for his opening outline of the statutory intention and content of the Bill. The opening contribution of the Seanad by Senator Seery Kearney was comprehensive and I commend the Senator on her well-known, respected, varied and ongoing work in the area of family law and of supporting parents.

I welcome this legislative initiative and am delighted that the Minister values it. It is very important on a whole range of fronts. For judges to be assigned on a full-time basis is crucial because full-time assignments bring a level of expertise, consistency in judgements, specialist knowledge and ongoing training in this area.

I also welcome that more of the non-contentious matters, as they are referred to, can be dealt with at District Court level because family law is the one area of law that is different to the other ones, where emotions can sometimes run very high. When emotions run very high, people sometimes do not act in their best financial interest and it can be very expensive. The more we can do in the lower jurisdiction courts, the better.

I welcome the family law rules committee and the fact that alternative dispute resolution matters will be strongly encouraged. I further welcome that reporting will be continued. Dr. Carol Coulter has done great work on this and this is an area where one must be able to share with practitioners.

I believe, with the leave of the House, that I am sharing time with Senator Pauline O’Reilly.

Acting Chairperson (Senator Mary Seery Kearney)

Is that agreed? Agreed.

Senator Vincent P. Martin

The heart of this is to be child-centred, which is very important. Perhaps on another day we could look at removing some of the legalese, to demystify the law, and to make it and the workings of the legal system more accessible to the people who use the courts.

A separate building is so important for family law matters. I recall a couple of years when the Circuit Court family law sittings did their best at a time when the courthouse was unavailable and the court sat in a nearby hotel with a ballroom, which was not appropriate. It was a licensed premises during the day. There was a long entrance to the court. I remember that people can be very stressed and worried if it is their first time in court. My last word was to my client to ask them not to worry as I was trying to calm the situation down. There was an emergency contempt of court matter immediately before us and the result of that matter was that the person who was found in contempt of court was shouting and screaming while being hauled out of a long corridor by two gardaí. The next thing was that my client had to walk down that foreboding corridor. It was highly inappropriate.

There is also the issue of the acoustics in court and I know that this will be a professionally assigned building on days when it is not sitting to hear other matters.

I recall once having a client whose family home was in jeopardy under a repossession order and nobody could hear anything in court. That was wrong. I remember the multiple visits to court which have to be tackled, together with the spiralling costs. I had another client where the person was sure that a protracted, contentious matter was going to be all over as it was in for final orders. The acoustics were very bad and I warned the client that it was looking very good that we would get our matter dealt with that day, and all of the rest. When we went back to the consultation room after our short hearing, my client surprised us with a gift of spontaneous refreshments. I had the task of apologising and telling her that the judge had not ruled, and had informed us that due to circumstances beyond his control that he could not deal with it that day. That was an extra annoyance and stress on that client.

This, I inform the Minister, is all very good. I welcome the way the Minister is prioritising this and he has the full support, I hope, of everyone in the House. This is a very good day. A specialised divisional court to deal with this area is long overdue and I am very impressed with the monetary jurisdictions, and how there is flexibility within Government on regulations. Also, if parties consent, they can contract out, in a manner of speaking, of the monetary jurisdiction and have the matter heard at the lowest effective level, which will be less expensive on the parties, with the spiralling costs as they are. I hand over now to Senator Pauline O’Reilly and apologise if I have spoken at too great a length.

Acting Chairperson (Senator Mary Seery Kearney)

Just before the Senator begins and before they leave, I welcome the pupils from St. Farnan's Post Primary School, Prosperous, County Kildare, and I thank them for coming to the Seanad. I will give latitude on the time.

Senator Pauline O'Reilly

The Minister is very welcome and I am delighted to be here today as someone who has worked as a family law solicitor myself. I feel very passionately about this piece of legislation and, indeed, I had the very great honour of being in the negotiations, along with the Minister, Deputy O’Gorman, for the Green Party, with Fianna Fáil and Fine Gael. It was a priority for us to put this into the programme for Government and this is a very significant day.

It is completely true to say that family law cases are very traumatising for children. It is not just about the day one goes into court, or it is not just a day, but it is multiple days, often over many years. It is also about the fact that, in the home, people are preparing for an adversarial approach to family law. It is, then, looking for ways to build a case every day against somebody who is, essentially, part of one’s family and will always remain part of one’s family.

It is completely correct that children are at the centre of this now and that we have separate buildings because, as my colleague, Senator Martin has said, I have also been in court with vulnerable people in family law cases where one has gardaí rushing past, people in handcuffs, which is particularly the case in Galway, and where so much goes on within that small footprint. Only barristers and solicitors, in fact, have a separate space where they can go, but clients often have to book a room in family law cases because one can be in and out for orders, sometimes, quite quickly. Usually, let us be honest about it, the parties are in the corridor having conversations and being overheard. It is very important to have that separate building.

I was also involved in collaborative law, which I believe is a very good approach but it is rare that it proceeds in that way. We have a legal obligation to speak to clients about mediation at the very start when one is taking on a case but again, given the nature of how some of those conversations happen -many of these cases do proceed to court - it is happening in an adversarial type of conversation.

It is acknowledged that this Bill is not going to cover everything. Again, Senator Martin has mentioned that cost is very important and I know that Deputy Costello has brought up the issue of cost and greater access to legal aid. I would love to hear what the Minister's thoughts are on that.

I also note that Women's Aid have some concerns and certainly from working with people, it is very important to remember that children are the most vulnerable but there is often a vulnerable adult in that situation as well and negotiations take place with a vulnerable person.

Vulnerable adult children are also often in court and sometimes have had a long history of abuse within relationships. I am over time. I thank the Acting Chair for the latitude and opportunity to speak.

Senator Niall Ó Donnghaile

Cuirim fáilte roimh an Aire. Is Bille thar a bheith tábhachtach é seo agus, mar atá ráite ag comhghleacaithe eile, ceann a bhfuil ag déileáil le cásanna nuair atá daoine faoin a lán struis agus a lán brú. Cibé rud gur féidir linn a dhéanamh a laghdaíonn an strus agus an brú sin agus a chruthaíonn coinníollacha i bhfad níos fearr faoi choinne daoine agus iad ag dul tríd an gcóras dlí, is rud maith dearfach é sin.

State institutions of any description present difficulties on many fronts - too many to mention here - for those who find themselves using them. We have debated many times in the Chamber the need for the State's institutions to be much more user friendly and considerate of the people who pass through their doors. In particular there is a need to be aware of two dimensions, namely, psychological and resourcing. This is particularly the case when it comes to the relationship between people and the State's judicial institutions in their varied forms. We have heard very valuable first-hand experiences of that in the debate thus far.

Today, we are debating the Family Courts Bill. There is probably no other area of life which produces emotional tensions quite like a family in crisis and, unfortunately, potentially in breakdown. I am mindful, in addressing the Bill, that its constituency are stressed mothers, children, distraught parents and grandparents, fathers, siblings and relatives. They will have experienced coercive control, which is now a criminal offence because it is violent and destructive to family life, parental estrangement, a complete breakdown between parent and child, parental alienation or the hostility of a child to one of his or her parents induced by the other parent. All of these issues and many more potentially arise.

The reduced capacity of the courts during Covid also negatively impacted on families. Family breakdown is always a tough experience emotionally and financially. While these pressures are challenging enough for the families experiencing them, they then also have to manage the family law system, which falls far short of what it should be. Families are experiencing things such as lengthy delays waiting for a court date, adversarial and inappropriate settings to hear highly personal matters, the poor provision of ancillary court services and court-ordered assistance and delays in enforcing maintenance orders, which causes additional financial hardship, especially for mothers who are already struggling.

The proposal by Deputy Kerrane of Sinn Féin for a child maintenance service would help many families, as would the proposals from the Committee on Justice and Equality, chaired by my former colleague, Caoimhghín Ó Caoláin, which produced a report in 2019. It is a valuable report and I commend it to the Minister. The committee heard from wide variety of stakeholders and the report represents a solid basis for reform.

The current programme for Government contains a commitment to enact a family law court Bill to create a new dedicated family court within existing court structures and provide for court procedures that support a less adversarial resolution of disputes. It also promises to build a new family law court building in Dublin and to ensure court facilities across State are suitable for family law hearings so these hearings can be held separately from other cases. These measures are fully supported by Sinn Féin and we support the Bill.

Legal reform and the building of a dedicated family law court for Dublin are of vital importance but any credible family law plan must go further and I appreciate that the Minister knows this, in particular in terms of supports. Not every issue before the court can be addressed at the point where relationships are breaking down. However, significant resources can and should be allocated to reduce the harms that can result to children and adults. Certain measures, if implemented, will make a significant contribution to making family courts work for families and children. Not only is that the intent behind this much-needed Bill, it can be the outcome. I look forward to working with the Minister and colleagues across the House to ensure that is realised.

Senator Mark Wall

I welcome the Minister to the House to discuss this important Bill, which the Labour Party will support. I note, as colleagues have said, that the programme for Government includes a call for a focus on reforming our family court system to ensure that proceedings involving children are dealt with in a manner that recognises the unique vulnerability and needs of children. That is the most important aspect of that statement.

Like many Members across the House, I have dealt with vulnerable families who seek assistance and guidance from the State and who fear the legal system and what it may mean for them and their families. That is an important aspect of what we and the Government, through this Bill, are trying to do today. I welcome any attempt to reform the family courts system that puts the vulnerability and needs of children first and attempts to remove that fear for so many families.

I am dealing with current cases where the first thing I have to do is to reassure vulnerable families that the law is indeed on their side and they should continue down the legal route. It is alarming that this has to be the case. Assisting vulnerable families in their hour of need through our legal system must be a priority for all of us in the House.

I want to speak to the purpose of the Bill and go through some of the points that have been raised. I agree with the main purpose of the Bill, namely, to provide for the establishment of family courts as a division of each court's jurisdiction level. There will be a family High Court, a family Circuit Court and family District Court.

I want to refer to the section of the Bill that makes provision for a family court to sit and hear family law proceedings in a different building. Colleagues have raised this issue. When I sit down families in Kildare, one of the most significant things they say is that they are intimidated by what goes on in court. That goes back to the fear I mentioned. I welcome that we are now at last talking about a different room, something that was mentioned by colleagues in the debate on the Bill. I also support the idea that family courts will be held on different days, which will take away that fear.

I welcome that judges will be assigned to the court on a full-time basis. I agree with Senator Martin, who referred to the expertise that will bring to the judicial system. It is an important aspect of the Bill. Ongoing professional training is also referenced in the Bill. In fairness, those of us in the House engage in ongoing professional training. It also has to apply to those involved in the judicial system because things change. That is an important aspect of the Bill.

The Minister mentioned cost in his opening speech. That is a prohibitive element for people engaging in law. I welcome the fact that the Minister is addressing that in the Bill.

The Minister also mentioned former judge, Mr. Justice Frank Clarke, and the closing date of 6 p.m. tomorrow for submissions to the civil legal aid review. Our legal aid centres are inundated with work at present and I seek a commitment from the Minister that he will continue to support them. I deal with a lot of people who are struggling to get appointments and be seen because of the number of cases that are going through the legal aid system. I welcome that a review is happening but I seek a comment from the Minister on where he sees that going. This all feeds into this issue because many people struggle to afford the cost of engaging with the legal system.

We all await the report from the review which is being carried out by the former Chief Justice, Mr. Justice Frank Clarke. We in the Labour Party look forward to the Bill. It is timely and we look forward to working with the Minister on the Bill in the House.

Senator Alice-Mary Higgins

I join with others to express my broad support for the Bill. It is significant and a long-awaited milestone in the reform of the family justice system in Ireland. My colleague, Senator Ruane, who is also a member of the Committee on Justice, has tracked the Bill for a long time. She would like to have been here for the debate today, but cannot attend. She is, however, engaging an line-by-line reading of the Bill and is looking forward to engaging constructively in great detail in the coming weeks with the Minister and colleagues across the Upper House.

The Bill promises a lot of important reforms to the family justice system, ones will make progress in addressing the deficiencies in the existing system which was not designed with families, in particular children, in mind. Specialised family courts systems have become standard practice across Europe and many common law jurisdictions. While Ireland is behind the curve, I welcome that the Minister and his Department have undertaken a lot of work to address this. It is important to commend the former Minister, Deputy McEntee, who did important work to push this forward and make the system fit for purpose.

We know many things might be in programmes for Government, but Deputy McEntee pushed this up the agenda to make sure that we are now at a point where we are debating a Bill. I commend the Minister and Deputy McEntee in that regard.

I welcome that the Bill will establish family courts, with family courts at District, Circuit and High Court level becoming separate divisions within the current court structures. Other Senators have spoken about ensuring that the family court follows through at the level the cases are taken and having specialised Judiciary and legal practitioners, which will make the system more child and family friendly and less adversarial. The Bill will also streamline family law proceedings. The long delays in proceedings can often add greatly to what are already difficult and distressing times for people who, as eloquently described by the Acting Chair, will be together for a long time. Going through one or two years of difficult court proceedings can be damaging to lifetime relationships. I hope that the streamlined procedure will also mean that proceedings become less costly for the individuals involved as well as the State.

I welcome that the Bill provides for the establishment of a family law rules committee, which will develop a set of overarching rules and practice guidelines and help to build consistency in the new system in terms of procedures and judgments. The inclusion of national practice directions is important and positive and is helpful towards moving towards more consistent decision-making while retaining judicial independence. This is an area of concern. There are anecdotes about what judge a case gets and how he or she might approach it. There should not be a roulette system for how a case is handled. People should know the principles and practices that will be put in place and the kinds of consideration that will be applied consistently. This is important. Practice directions can often be developed more quickly than legislation or court rules and could help to ensure the system remains dynamic and informed by best practice.

I have a concern connected to one of the recommendations of the gender equality committee, of which the Minister may be aware. Better practice is badly needed in respect of court-appointed psychological assessments. These assessments are not clearly regulated and can be inconsistent. I know of cases – we cannot mention specific ones – where they have been used in an abusive way, with children weaponised and partners put through assessments multiple times. For example, a partner in a custody case who was better resourced was in a position to suggest a psychologist to the court and have that psychologist assess another individual. There is a major concern about something that should be a constructive element – psychological assessment – being weaponised. I wished to signal this as an area that may need to be addressed through the family law rules committee and, possibly, this legislation. I will revert on this matter.

Regarding the occasional abuse of the court system as opposed to just its inefficiencies, delays and inappropriateness, the Minister and Senators will be aware that a number of advocacy and campaign groups around domestic violence have advised that there are areas of the Bill they believe need reform and strengthening in order to reflect the needs of domestic violence victims. Domestic violence is a feature of a not insignificant number of relationships that break down. These groups are a key user group and it is important that they be listened to. When the Seanad pushed for the inclusion of coercive control as an offence – that measure came from the Seanad – one of the important messages was that the Government needed to listen to those with expertise in this area and to consider those who were using the system and their needs. I hope that we can strengthen the Bill in this respect. There will be opportunities to do so.

The provision of out-of-court therapeutic family supports and alternative dispute services will be critical to the success of any new family court system. These should be free, accessible and carefully designed. For example, mediation is only appropriate sometimes.

I have many points to get through.

Advocacy groups have highlighted that the legislation does not adequately provide for the development of some of the necessary resources and structures around the provision of ancillary supports and services.

Legal practitioners have signalled a concern about the number of cases that may go to lower courts and the impact of this on, for example, the number of sitting judges needed at those levels to ensure sufficient capacity. We must not create a new bottleneck. Instead, there must be matching resources. In 2020, Ireland had one of the lowest number of judges per 100,000 inhabitants in the EU. The Department is awaiting research on this matter but the blunt figures point to a need for judges. Senator Wall referred to legal aid. Strengthening its provision and resourcing will also be important.

The family law complex at Hammond Lane will be critical physical infrastructure in making all of this work in a meaningful way.

Senator Ruane has repeatedly highlighted the collection of child maintenance and legislation on same. This issue has been dealt with inappropriately through the courts and through difficult processes in the social protection system. Regrettably, there was not a clearer outcome from the working group on child maintenance regarding a child maintenance body, but the Minister may be aware that Senator Ruane has proposed legislation that has the support of the cross-party women's caucus in the Oireachtas. We are considering what legislative measures could be put in place. Given the difficult process of going to court, a legislative measure that removed that legal context from child maintenance would be positive. We may try to address the matter as part of this Bill.

We in the Civil Engagement Group look forward to engaging with the Minister on what is a positive initiative, one that has significant potential to be transformative for families.

Minister for Justice (Deputy Simon Harris)

I thank Senators. The depth of feeling and priority they assign to this area is clear from their contributions. It was fascinating and insightful listening to the Senators' experiences. It reminded us of the urgency of, and reasoning for, doing this. Be Senators advocates, practitioners or both, it is clear that we have a wealth of expertise in the Seanad, which we will be eager to draw on as we work our way through the legislative process.

I acknowledge what Senators Pauline O'Reilly, Horkan and Martin stated. This was a priority during the programme for Government negotiations. It is lovely to be in a parliamentary chamber where there is a cross-party, bipartisan, non-partisan approach to getting this legislation right and getting it done. I thank Senators for that.

I also thank my colleague and friend, the Minister, Deputy McEntee, for her leadership and determination on this Bill. She would not forgive me if I did not keep it moving. I acknowledge the work and priority she has attached to the family justice system. Part of that work is culminating in this debate.

If we are being honest, we in politics have a tendency to talk about milestones, significance and landmarks, but it is actually true in this context. It is not hyperbole. This legislation has the potential to be a major milestone and significant landmark law that reforms family law, puts the child at the centre of all that we do in that regard, moves away from the adversarial system and creates non-adversarial pathways that are operable and practical. I had a sense of it already, but I have an even greater sense of it now – if we want to move away from an adversarial system, it will of course involve the law, but it will also involve the buildings and acoustics. This point reminds me of the importance of approaching the Bill from a number of angles.

The Bill's enactment will have a significant beneficial impact in terms of providing many of the key building blocks that we need to put in place in order to reform our family justice system and develop sensible, comprehensive and sensitive family law procedures for all families, but particularly vulnerable ones. I will examine the range of issues that Senators highlighted and give consideration to introducing appropriate amendments and teasing through the issues with Senators on Committee and Report Stages.

I will endeavour to respond briefly to some of the points raised. I noted the question from my colleague, the Acting Chair, and other Senators around the Hammond Lane site.

I will get an update for the Senator and others on the Hammond Lane site. My understanding is that, more recently, the Courts Service Hammond Lane project board approved, in principle, the design plan of the buildings at its meeting on 28 November subject to a couple of amendments that are being addressed. I understand how significant that project is, however.

There was a commonality to many of the points made by a number of Senators so I will not name everyone. Senators Seery Kearney and Pauline O'Reilly mentioned Women's Aid. I very much acknowledge its brilliance in terms of advocacy and what it does. I mean that extremely sincerely. We have a very good partnership approach with it on many important issues.

I am aware of some concerns raised around difficulties experienced by victims of domestic violence relating to family law cases as they go through the court process. The roll-out of the family court division presents an opportunity to try to address these issues and make changes that will improve the court experiences of families and children in cases where domestic violence is involved. My Department and I will continue to engage with organisations, including Women's Aid, that work with victims of domestic violence. We will consider their suggestions on what changes are needed to ensure the establishment of dedicated family courts works to reduce difficulties that victims of domestic violence may experience in engaging with the courts. It is well known that we have a zero tolerance policy when it comes to this, however. We certainly want this legislation to help and support victims and survivors of domestic violence in any way it can.

The issue with regard to Legal Aid Board solicitors was raised by Senator Seery Kearney. The issue of civil aid and legal aid, in general, was raised by Senator Wall and others. Among the terms of reference of the current review of civil legal aid is an examination of the modes of delivery of legal aid and advice provision under the scheme. The review group will be making recommendations regarding the future of the scheme and related systems to meet effectively the priority legal assistance of those with limited means as well as making recommendations related to the effective resourcing of the scheme to achieve it. I very much accept that Senators were making the point about resourcing and supporting it, and we will certainly do that.

The issue of training arose, which is quite important and is key. This is the benefit of having full-time assigned judges to the court. Ongoing professional training in the area of family law will obviously be required for family court judges. We now have the Judicial Council, which will be responsible for identifying training requirements. Improvement and training will be supported for all court staff and professionals working within the family justice system. That is important. Of course, it is about the judge, but it is also about all of the court staff in terms of the journey from the moment a person turns up to the end of the legal process. One element of meeting the strategic goal of supporting children in our family justice strategy is an action to engage with the Judicial Council and professional bodies to identify and deliver common and standardised child-focused training to all professionals working within the family justice sector.

I will comment on the point made by Senator Seery Kearney on the Health (Assisted Human Reproduction) Bill 2022. The Senator reminded us, if ever we needed it, of the very significant urgency of making progress in this regard. I know this is a view shared by Senators across the House. The Senator made it very real for us in terms of the impact today on families going through challenging and difficult times, extraordinarily so in some cases. The Minister for Health and the Government are absolutely committed to bringing forward amendments as a matter of urgency. I will seek a detailed timeline and progression for the Senator on foot of today.

I acknowledge, as Senator Higgins did, Senator Ruane's interest in the Bill. I have absolutely no doubt Senator Ruane will go through this line by line and engage constructively, as she always does. I look forward to that.

Senator Higgins raised the issue of expert advice and reports. I touched on this briefly in my opening statement but ran out of time, so I would like to return to it. Who is an expert? Who is providing information that could be very influential in the outcome of a court proceeding, and does that person have the expertise to be as influential, if you like, in terms of a decision that could have a very profound impact on a child and family or perhaps on a vulnerable person. As Senator Higgins knows, Section 47 of the Family Law Act provides that the Circuit Court or High Court may order "a report in writing on any question affecting the welfare of a party to ... [family law] proceedings or any other person to whom they relate". Section 3 of the Guardianship of Infants Act 1964 provides that the best interests of the child shall be a "paramount consideration" for the court in any proceedings where guardianship, custody, upbringing of or access to a child is in question. Obviously, the courts and the Judiciary are independent. I very much get and respect that. It is a core tenet of our democracy. Assessors and experts in family law proceedings are formally appointed by the court itself and they are answerable to the presiding judge. The Family Courts Bill does not provide for any legislative change regarding these reports. I did say in my opening statement, however, that I asked my Department to prioritise the area around the whole issue of expert reports. I am pleased to inform the Seanad today that this review work has now commenced. This is an area to which we will be able to return and tease through the issue.

On judicial numbers, it is very important when we talk about judicial numbers to be aware, and I sometimes wonder whether it gets the attention it requires because people think it is about judges, that it is about the delivery of access to justice and delivering public services, in many ways. We do not have enough judges in this country. Let us be crystal clear. Yes, we wanted an evidence base to establish that but the Senator is right. We know without an independent report that we do not have enough judges. I received in recent days the report of the judicial numbers planning group. It is an excellent piece of work done by a group chaired by Ms Brigid McManus. I intend to engage with Government colleagues with regard to progressing this shortly. I believe there are key areas, whether it is housing, planning, family law, assisted decision-making, migration - you can pick a whole variety of areas - in which increased numbers can actually result in increased access to justice, but also very key societal priorities that need to be expedited. Expect developments on that shortly.

I will also reflect on the comments regarding child maintenance. A piece of work was done between the Minister, Deputy McEntee, and Minister for Social Protection, Deputy Humphreys, in that regard. I am happy to engage further on that.

Let me end where I began by saying I am genuinely excited about this legislation. It is a very important piece of work. I thank everybody in the Department of Justice and beyond who has worked to get us to this point. We obviously want to get the legislation right and we will work with the Seanad to make sure we do that. We are now going to create divisions of a family law court throughout our court system. We will make sure there is a specific focus and route for people when family difficulties arise. We will make sure there is a system that is less adversarial and more effective in terms of cost and, therefore, more accessible to people, and that puts the child at the centre of all we do. That is our common objective. That is the message I have taken from Senators. I will reflect on the points they made today.

Question put and agreed to.

Cuireadh an Seanad ar fionraí ar 12.57 p.m. agus cuireadh tús leis arís ar 2 p.m.

Sitting suspended at 12.57 p.m. and resumed at 2 p.m.

Seanad Éireann debate - Thursday, 2 Feb 2023

Family Courts Bill 2022: Second Stage

Seanad Éireann debate -
Thursday, 2 Feb 2023