Written Answers. - Family Law Matters.

Finian McGrath


247 Mr. F. McGrath asked the Minister for Justice, Equality and Law Reform if he will examine documentation (details supplied) on family law; and his views on the many important issues raised in the submission. [19041/03]

The administration of justice is a matter for the courts, in which I have no role. It is advocated in this documentation that judges should not be independent in their duties and functions but should be answerable to my Department. It should go without saying that I cannot accept this point which would involve constitutional change of the most fundamental kind and radically alter our system of government in a way which would be incompatible with Ireland's place in the international community. In so far as judges are criticised because of an alleged lack of courtesy towards litigants, an Agreed Programme for Government contains a commitment to bring forward legislation to provide effective remedies for complaints about judicial misbehaviour including lay participation in the investigation of complaints. I hope to be in a position to publish the Bill early next year.

As regards the hearing of family law cases in general, I propose to change the in camera rule so as to allow for the general reporting of overall trends while continuing to respect the privacy of all those involved. I intend to publish the necessary legislation this year. Under the Guardianship of Infants Act, where in any proceedings before any court the custody, guardianship or upbringing of a child is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration. Similarly, decisions on access must be based on the child's welfare and I would not support any alternative provisions on these matters. It is most desirable that children maintain contact with both parents, subject to the overriding consideration that the welfare of the child must be paramount.

On the enforcement of access orders, the position is that section 5 of the Courts (No. 2) Act, 1986, as amended, provides that, without prejudice to the law as to contempt of court, any person having the actual custody of a child, who has been given or shown a copy of a custody or access order made by the District Court relating to that child and who fails or refuses to give up the child to the person who has been granted custody or to allow the person entitled to access to have such access, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €1,904.61 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or both. My Department is considering how this legislation is operating and whether any amendment to the law might be desirable.
Under the Family Law Act 1995, in deciding on the right to occupy the family home on the occasion of a judicial separation, the court shall have regard to the welfare of the spouses and any dependent member of the family and, in particular, shall take into consideration that, where a decree of judicial separation is granted, it is not possible for the spouses concerned to continue to reside together, and that proper and secure accommodation should, where practicable, be provided for a spouse who is wholly or mainly dependent on the other spouse and for any dependent member of the family. In making ancillary orders on the occasion of judicial separation, or divorce, the court must ensure that proper provision is made for the spouses and dependent members of the family. The court has to have regard in particular to a range of factors reflecting the income, assets and needs of the parties.
As regards maintenance, under the Guardianship of Infants Act 1964, the court has power to make such orders for the payment of maintenance in respect of a child as it considers reasonable. The Family Law (Maintenance of Spouses and Children) Act 1976 gives the court power to make such orders for payment of maintenance as is proper in the circumstances. Family law is kept under continual review in my Department. A family law Bill forms part of the Government's legislation programme.