Special Committee on the Judicial Separation And Family Law Reform Bill,1987 debate -
Wednesday, 29 Jun 1988

SECTION 22.

Amendment No. 49 not moved.

Mr. Calleary

I move amendment No. 50:

In page 12, line 28, after "shall" to insert "as far as is reasonably practicable."

Section 22 of the Bill would raise difficulties for the sitting of the family Circuit Court outside Dublin. What would seem to be required by section 22 is that either two judges should be sitting together in a town, thus requiring a separate venue or that if there was only one judge he or she should allocate a separate day or days for family law business exclusively. The concept that there should, as far as reasonably practicable, be a distinct separation in hearings between ordinary and family law court business has always been accepted. In Dublin, this has been achieved by having exclusive family law sittings in a purpose-built Circuit Court courtroom on each working day. Outside Dublin the normal practice is for the presiding judge to fix a separate convenient time for family law cases. However, to make that requirement mandatory and to introduce in the alternative a range of requirements for separate venues and separate days for such sittings could create real, practical difficulties. The difficulties have to do with two things, accommodation and judicial resources.

Outside Dublin, the provision of accommodation is the responsibility of local authorities who are required by law to provide and maintain courthouses. The Circuit Court sits at some 60 venues throughout the country. It would simply be unrealistic to expect that local authorities would be in a position to provide separate Circuit Court venues to comply with the provision in the Bill. There is no possibility in present circumstances of the necessary finances being provided, especially from central funds, to compensate local authorities. Even if additional venues were provided, there would be difficulties in providing the necessary judicial time for them.

The same difficulties would arise if there was a requirement that, irrespective of local conditions and the volume of business arising, family law business had to be arranged for separate days. There is a total of 18 Circuit Court judges, including the President and two temporary judges. The President has indicated that this number is no more than sufficient to cope with the current level of business as it is at present arranged. If there was a mandatory requirement on the President to provide judges to hear family law cases in venues distinct from those for ordinary business, or on separate days or at different times, there is no doubt that he would need additional judicial resources. The efficiency and cost-effectiveness of such arrangements would be highly questionable.

On Second Stage the Minister indicated that the section would have to be amended having regard to the Exchequer position, apart from anything else. In the circumstances, the section must be amended as proposed to allow flexibility in the arrangements to be made for family law business and to avoid imposing obligations which it would be impossible to meet for those substantial additional costs to public funds. Continuation of the current practice of arranging, as far as reasonably practicable, for a distinct separation in hearings of ordinary and family law business would go a long way towards meeting the requirements of the intention behind the section.

Mr. McCartan

This is one amendment in this area that I will be implacably opposed to. The situation is that the quality of facilities available throughout the country is not good at all in the area of family law. It has been clearly recognised time and again that something radical must be done. An effort was made here to address it by the institution of the concept of a tribunal. That is not allowed.

It was what was originally recommended in the report. The provision in the Bill clearly lays down an obligation to separate the proceedings from the ordinary run of the mill of the courts. The Minister of State, in moving his amendment here today, is quite fortunate that he is able to quote the experience in Dublin. That is only because of the slow progress of this Bill and nothing else because the Circuit Court facilities in Dublin are open no longer than we have deliberated on this Bill.

A complete new unit has been opened beside the Four Courts. Prior to that the conduct of family law cases in Dublin city in the Dublin Circuit Court was an atrocious disgrace and no one could have been happy with it. The fact that the Bill has been going on for so long makes me believe that there is not a serious will existing, administratively, within the Department or wherever responsibility lies. For that reason it is important that we have an imperative upon us to ensure that at least there will be different times, dates or places set aside for the conduct of family cases. They are very sensitive cases; they are matters that must be dealt with delicately and do not easily fit into the ordinary run of the court list. I do not want to go back on something Deputy Abbott sought to stitch into the record but there are some of us here on this side of the House who have experience of the rural courts as well and we do not have the same glowing experience of them as Deputy Abbott would have in terms of the tradition of the professions in taking up the impecunious client. I do not accept that proposition. It never existed on a wholesale basis. There are good exceptions to it but I am always quick to put the record straight, if someone tries to stitch into the record that you will never run without a lawyer simply because you cannot pay. The wording of the section is clear. It says, "in a different place or at different times or on different days". So the section does contemplate a Circuit Court dealing with its ordinary list in a portion of the day, or dealing with the family law list on another portion of the day but keeping matters apart.

My understanding of many of the rural Circuit Courts is that the circuit arrives in a town for two to three days. It issues its list of all cases for day one. It is a general notice to everyone to be on the ready and that he can be called at any stage.

Mr. D. Ahern

That is not the case.

Mr. McCartan

That is the experience I have had up to very recently. I may be wrong but I am sure I will be corrected. The section clearly recognises the importance of keeping these cases apart for all the very good reasons that have been advanced on Second Stage. It is important, because of the poor record we have had in this area, that we maintain the imperative as contained in the section. I would not be at all happy accepting the Minister's amendment because I have no doubt it will be used as the means whereby nothing would be done in this area.

Chairperson

Could I advise Members that we have only ten minutes left?

Mr. Shatter

I think we agreed a couple of weeks ago that this meeting would go on until 6.30 this evening. That was agreed to weeks ago. It should facilitate us in bringing this to a conclusion. We agreed that. I distinctly recall that.

Chairperson

Right, Deputy.

Mr. Shatter

Could I say I agree with the approach taken by Deputy McCartan. I congratulate the Minister on the honesty with which he presented his case. The case the Minister makes is one which is designed to ensure that this section of the Bill does not work. The section has one objective, to ensure that family law cases are dealt with separately from all other cases running in the Circuit Court and it is to ensure that husbands and wives who are already in a distressed condition are not kept hanging around court corridors, either for hours on end while all sorts of other cases are being processed, or, in some cases, for days on end.

I am as familiar with the country Circuit Court as I am with the Dublin Circuit Court. I have practised as a lawyer in the Dublin Circuit Court and I have found myself in most of the other Circuit Courts in the country. There are some Circuit Courts outside Dublin where, if the court is sitting on circuit for four or five days, that in advance of the four or five days sitting there will be a date list which will indicate on which particular days particular types of cases will be taken. You may know on day three the family law cases will be taken at a particular time but there are other Circuit Courts which do exactly what Deputy McCartan said. The judge arrives in a town and a court list is distributed which contains the entirety of the court cases to be taken over three, four or five days. An entire list is read over on the first morning. Everyone has to be there: husbands, wives, their witnesses and everyone else involved. It may be a matter of mystery as to when your case will be taken. Some judges will indicate you might be taken that day or you will be taken two or three days later. Others will keep you there and you will be hanging around for three or four days with all your witnesses in a family case which is supposed ultimately to be heard in private with half of the town wandering through the courtroom and knowing you are there.

The intention of this amendment is to prevent that. I am afraid the Minister's comments on it are misleading. The amendment does not — unfortunately it cannot — require extra State expenditure. We should have special buildings erected around the country to deal with circuit court family matters in the same way as we have the specialised building now in Dublin. The Bill cannot require that and if it did it would be a charge on the Exchequer.

This provision provides that the Circuit Family Court may sit at a different place if there is another alternative court built, so that holds out some prospect of that happening when we are in better times.

It must sit at different times, at a very minimum. That means the judges who on circuit would normally deal with the type of lengthy list that runs for three or four days, will be required, or the court clerks or county registrars who arrange this, will be required in advance to fix the day, or the time of the day when family law matters will be dealt with. It may be known that at 2 p.m. on the afternoon of the second day family law matters will be taken and if there are other matters at hearing in the court at lunchtime that day, they will be adjourned to the following day.

I do not think it is unreasonable that people who are involved in very distressful family proceedings, should be given some degree of special attention. Their court proceedings should be separated out on circuit from the other types of court proceedings. Their anonymity should be guaranteed by not keeping them hanging around the courts. They should know with some certainty at what time their case will be taken. That will not overburden the Judiciary because it is not going to add any additional times onto the number of days the judge will spend in a town. It will merely mean the family law list will be predetermined to be dealt with at a particular time on a particular day. It will not require additional judges to be appointed because, presumably, that list will be taken anyway. This provision, does not require, of necessity, additional buildings, though I would love to see new buildings provided. That is an option, to provide new buildings.

The Minister's amendment, as the Minister quite reasonably expresses it, is to ensure that this does not work, by putting in the words "as far as is reasonably practical". It means in effect outside Dublin this section will be meaningless and will not operate. I must say I am opposed to the Minister's amendment and I really do not see the need for it. If the Minister is labouring under the illusion that this section automatically requires additional expenditure by the State, I would reply to the Minister and say that it does not. It just requires that we have a more organised court system and that the specific days are set aside by specific Circuit Courts operating, stating when they will take family cases and the times when they will be taken, without the husbands and wives being caught up in all types of other court proceedings.

Mr. Flanagan

I certainly regret the fact that the Minister has not seen fit to accept the section as it stands. It is fair to say that this is a cop-out as far as the Government are concerned when it comes to reforming matters of family law. It is fair to say that family law lists in our Circuit Courts throughout the country are increasing. I fail to agree with what Deputy Abbott said earlier, about the situation of family law lists in the midlands circuit, because the situation there and in many other circuits, is that the family law list is put back until 2.30 p.m. on Friday and more often than not at 2.30 p.m. on a Friday a pretty serious malicious injury case is halfway through and the entire family law list is adjourned to another date. That situation develops from the family law list being called over on a Monday and we have people mixing in the corridors, waiting about, juries being sworn in at the same time, criminal lists being arranged. Certainly this does not alleviate the trauma or the sensitivity of a family law matter. It is absolutely essential that special provision be made for family law cases, as envisaged in the Act.

The question of accommodation is such that most towns in which the Circuit Court operates have local authority buildings to which it would be possible to transfer the Circuit Court case. Obviously, the ideal situation would be to have special family law tribunals. We have all to accept that that is not something that can be arrived at immediately, given the financial constraints on the public service. However, to say that the situation as it stands at present is acceptable and not to have any form of segregation for family law cases, is deplorable.

From that point of view I cannot support the cop-out of the Minister's amendment. If a serious effort is to be made by us, as legislators, to improve matters as far as the family law litigant is concerned, we have to segregate the family law list from the criminal list and not leave matters as they stand. I agree with what Deputy McCartan said, that Dublin may present a different set of circumstances from that of rural areas and the position is that in many rural circuits the family law list is being almost ignored by the Circuit Court judges. If the amendment proposed by the Minister is passed, that situation will continue, and it must be to the detriment of the family law litigant.

Mr. T. Fitzpatrick

I would like to say very briefly that it is absolutely essential that the family law court and the court dealing with ordinary cases should be kept apart. Two or three years ago I had an experience in the Dublin Circuit Court before Judge Nealon, the then President, when he was dealing with jury cases. There was a jury there; prisoners had been sentenced; prisoners in handcuffs were there; prison officers were there; members of the Garda Síochána were there and there were people milling about all over the place. There was not place to sit down. There was no consultation room. It is absolutely beyond description, and that position confronted people most of whom had probably never been in court before. It was an horrific experience.

The next thing I would like to say is that I think there is no necessity to amend the section because it reads: "The family law cases shall be held in a different place or at different times or on different days from those on which the ordinary sittings of the Circuit court are held". There is no problem there. It can either be fixed on a different day, or at a different time. It is not good enough to have the sort of thing, maybe on a smaller scale, in the country as I saw in Chancery Place. It is essential that there be some sort of consultation facilities to enable the legal people to talk to their clients in some secrecy, not in public outside the courthouse door, or on the steps, or around the corridor. The amendment should be opposed and I believe that if the Minister thinks it over he will come to the conclusion that he should withdraw it.

Mr. Calleary

First of all, could I assure Deputy Flanagan that there is no question of a cop-out. Deputy Fitzpatrick quite rightly said that what is asked for is "in a different place or at different times". In many cases, contrary to what has been said here, that is already in operation. The Circuit Court judge tries to facilitate people as best he can. Circumstances can arise. I am speaking here to people who are members of local authorities, and outside the Dublin area the local authorities have the onus to provide courtrooms and places where courts are held. We should keep this in mind. My problem is that because the section will be in mandatory from, extra resources will have to be made available, no matter what is said here, to ensure that on all occasions separate sitting would occur. I do not think in the present financial climate this can be done. So unfortunately, I must pursue the amendment. However, I hope I have made it clear that I am accepting the principle of the section. My own experience as a non-lawyer is that the Circuit Court judges try to keep family law proceedings separate from the general cases. I must press the amendment.

Mr. T. Fitzpatrick

The fact, as the Minister says, that most judges observe the section as drafted proves that it can be observed. Most judges — 75 per cent of them anyway — are reasonable. You come across the odd one who thinks a lot about his own convenience and, if the section is drafted loosely, he might try to crowd a lot of work into the same day or at the same time when it is not absolutely necessary. The amount of money that would be involved here in doing what the section as drafted requires is not worth talking about. It will neither make nor break the Excheque.

Mr. Calleary

In many cases it will not be the Exchequer that will have to pick up the bill; it will be the local authority.

Mr. T. Fitzpatrick

For what? For cleaning the place?

Mr. Calleary

Not at all. For the provision of an alternative. If under this section a Circuit Court judge says: "All right, I will sit in a different place", it will be up to the local authority to provide that place and pay for it and to pay for the cleaning of it. It is not to save the Exchequer.

Mr. McCartan

If there is not an alternative place, no judge can insist on it and then he falls back on a different time or a different day. That is why the section is so widely drafted. I do not think it needs amendment.

Miss Harney

If I could add to that, what we are asking for is a rearrangement of the way cases are heard. Normally I would be prepared to accept an amendment that talks about "as far as is reasonably practicable"; but in fact, if that goes in we will be told that it is never practicable and it effectively means that the situation will stay as it is. It does not necessarily mean getting new premises; it means rearranging the way cases are heard and I think that is perfectly reasonably given the nature of the cases involved.

Mr. Cowen

Surely it is a case of rearranging the list and that is probably the reason behind the section in the first place. If there are 19 Circuit Court judges, the President of the Circuit Court, by 18 phone calls could insist that the cases be held on a separate day or at a specific time in every Circuit Court. It is an administrative thing. It does not seem to be such a big deal the Deputy is making it out to be. Eighteen phone calls by the President of the Circuit Court should solve this problem if there is someone running his court for his own convenience.

Mr. Flanagan

The nett result of what my colleague is saying is that there should be a special family law day which is what the section says but with the Minisnter's amendment we will not have that.

Mr. Cowen

With or without the amendment my point, Deputy Flanagan, is that, regardless of what is in the Bill, 18 phone calls can solve this problem if there is someone messing around.

Mr. D. Ahern

I think around the table we have some very suspicious minds. I do not have any problem about the bona fides of judges to organise their lists as best to suit the litigants who are before them. While the Minister is accepting the spirit of the section, there may be situations where it is not possible to organise a sitting of the family law court somewhere in the country for the Circuit Court and, as the Minister quite rightly points out, if there is an onus on them to do that, the county council or local authority may have to provide that as a matter of course. It is putting too big an onus on the local authority. It should be left to the Circuit Court judges to arrange it from the administrative point of view rather than have an imperative in the legislation.

Amendment put.

The Special Committee divided: Tá, 6; Níl, 8.

Tá
Abbott, Henry.	Calleary, Seán.
Ahern, Dermot.	Cowen, Brian.
Ahern, Michael.	O'Donoghue, John.

Níl
Desmond, Barry.	McCartan, Pat.
Fitzpatrick, Tom.	Nealon, Ted.
Flanagan, Charles.	Shatter, Alan.
Harney, Mary.	Taylor-Quinn, Madeline.

Amendment declared lost.

Chairperson

Amendment No. 51 is consequential on amendments Nos. 45 and 46, which were agreed to.

Mr. Calleary

I move amendment No. 51:

In page 12, line 30, to delete "section 21 (3)" and substitute "section 21 of this Act."

Amendment agreed to.

Section 22, as amended, agreed to.