Dáil Éireann Debate, Tuesday - 7 November 2017
492. Deputy John Lahart asked the Minister for Justice and Equality the level of mediation uptake in family law cases here; the way in which this compares with international practice; and if he will make a statement on the matter. [45870/17]
View answer493. Deputy John Lahart asked the Minister for Justice and Equality his views on whether it is appropriate to make mediation compulsory in family law cases; his further views on whether it is appropriate and advisable that child psychologists and psychiatrists need to be pre-eminent in the family court process; and if he will make a statement on the matter. [45871/17]
View answerI propose to take Questions Nos. 492 and 493 together.
The Mediation Act 2017 was enacted on 2 October and I intend to make a Commencement Order in the coming weeks bringing the Act into operation.
One of the key principles enshrined in the Mediation Act is that mediation is a voluntary process. The Act's definition of mediation states that mediation means a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute. It would not be appropriate, therefore, to make mediation compulsory in family mediation cases.
I should point out, however, that section 23 of the Act provides for delivery of a scheme of mediation information sessions for those involved in family law disputes. The intention is to promote and explain the benefits of mediation as an alternative to court proceedings for the resolution of such disputes. However, it will remain a matter for the parties themselves to decide whether to use mediation or commence legal proceedings.
As regards the level of uptake of mediation in family law cases in this jurisdiction, the position is that the Legal Aid Board became responsible for the provision of the State-funded family mediation services in November 2011 following the enactment of the Civil Law (Miscellaneous Provisions) Act 2011. State-funded services have been available since 1986.
Family mediation is a free, confidential service in which a professional mediator assists those involved in family law cases, in particular separating or divorcing couples, to negotiate the terms of their separation or divorce. It also assists same sex couples as well as couples who have never lived together but have a child. The Board operates on a number of levels, through its general mediation offices, through dedicated court-based projects and through the provision of mediation information sessions at 3 locations.
The latest data from the Legal Aid Board in relation to the Family Mediation Service indicate that the total number of couples in mediation in 2016 was 2,249, of which 1,390 couples reached agreement and a further 547 couples were continuing in mediation at end 2016. Of the 1,702 concluded mediations, the success rate was in the order of 82%. I am not, however, in a position to provide comparable data in respect of other jurisdictions.
As regards the role of experts in private family law proceedings, the position is that section 47 of the Family Law Act 1995 provides that a court may, of its own motion or on application to it in that behalf by a party to the proceedings, order a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate. The Court in question is the Circuit Court or the High Court.
The power under section 47 of the 1995 Act to order a report lies with the Court. As the Deputy is aware, the Courts are, subject only to the Constitution and the law, independent in the exercise of their statutory functions and the conduct of any family law case is a matter for the presiding judge.
The qualifications of experts appointed under section 47 are determined by the issues of concern in the cases concerned. There are no regulations that require experts to hold specific qualifications, but those engaged in this process are usually qualified and practising psychologists or psychiatrists, depending on the issues involved. Experts appointed under section 47 are required to act in accordance with the standards and codes of conduct of their professional bodies.
The Children and Family Relationships Act 2015 contains new provisions regarding the best interests of children which have been in operation since 18 January 2016. One of the Act’s important reforms is to facilitate the hearing of the voice of the child in any court proceedings where the guardianship, custody or upbringing of, or access to, a child is in question. Section 63 of the Act inserted a new section 32 into the Guardianship of Infants Act 1964 which provides the court with the option to seek a written expert report on the welfare of the child. Section 32 also enables the court to appoint an expert to determine and convey the child’s views to the court, so that the child’s voice can be heard in the proceedings. These provisions allow the courts to take account of the evolving capacity of children, and give them the flexibility to ensure that all children’s views can be heard.
My Department, in conjunction with the Office of the Parliamentary Counsel and the Department of Children and Youth Affairs, is currently finalising regulations under section 32(10). These regulations will specify the necessary qualifications and experience of child’s views experts appointed in private family law proceedings and the fees and expenses that may be charged by such experts.
