Léim ar aghaidh chuig an bpríomhábhar

Special Committee on the Judicial Separation And Family Law Reform Bill,1987 díospóireacht -
Thursday, 9 Feb 1989


I move amendment No. 30:

In page 16, paragraph (b), line 6, to delete "1976" and substitute "1988".

Amendment agreed to.
Section 28, as amended, agreed to.


Amendments Nos. 31, 32, 33, 34, 35 and 36 form a composite proposal. I propose that we take them together.

I move amendment No. 31:

In page 16, before section 29, to insert the following new section:

"29.—(1) Subject to subsection (2), the Circuit Court and the District Court shall have jurisdiction to hear and determine proceedings under this Act and to make any of the orders referred to in sections 15, 16 or 17 as ancillary orders, and in so doing shall be referred to as the Circuit Family Court and District Family Court respectively.

(2) In the exercise of its jurisdiction under this Act, the District Court shall not make an order—

(a) under section 15 (1) (a) or (b) or section 16 (j), for the payment of a periodical sum at a rate greater than £110 per week in respect of the maintenance of a spouse or £35 per week for the maintenance of each dependent child of the family,

(b) under section 15 (1) (c) or (d), for the payment of a lump sum or sums exceeding in total £8,500 for the benefit of a spouse or £2,500 for the benefit of each dependent child of the family,

(c) under section 16 (a) or (b), for the transfer or settlement of property exceeding £25,000 in value,

(d) under section 16 (e), (f), (g) or (i) or section 17 where the value of the personal property (other than chattels real) exceeds £25,000 or the rateable valuation of the lands exceeds £35.

(3) The jurisdiction herein conferred may be exercised—

(a) as regards the Circuit Court, by the judge of the circuit, and

(b) as regards the District Court, by the justice of the District Court for the time being assigned to the district,

where either party to the proceedings ordinarily resides or carries on a profession, business or occupation.

(4) The jurisdiction conferred on the Circuit Court to hear and determine proceedings instituted under the Married Women's Status Act, 1957, the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act, 1976, and Family Law Act, 1981, the Family Law (Protection of Spouses and Children) Act, 1981, the Status of Children Act, 1987, the Legitimacy Declaration Act (Ireland), 1868, and proceedings between spouses under the Partition Acts 1868 to 1876 shall be exercised by the Circuit Family Court.

(5) The jurisdiction conferred on the District Court to hear and determine proceedings instituted under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act, 1976, the Family Law Act, 1981, the Family Law (Protection of Spouses and Children) Act, 1981, and the Status of Children Act, 1987, shall be exercised by the District Family Court.".

This is the proposal to give the District Court a role in the operation of this Bill and to give the District Court a jurisdiction to entertain judicial separation applications within certain prescribed limits, as I have given them in the amendment —£110 per week for maintenance, £35 per week for maintenance of each dependent child, £25,000 for the maximum property value, £8,500 for a lump sum for a spouse and £2,500 for the benefit of each dependent child of the family. These amendments in my view are crucial to this Bill because if we fail to address what I am trying to achieve here the reality will be that this will turn out to be a measure open to the rich, and to the rich alone. The old adage is a bit corny by now about justice being open to everyone like the Ritz Hotel, but it is regrettably, in the area of family law and in many other areas of law, as true today in the Ireland of 1989 as it was many years ago.

The Bill is an excellent one. It brings the whole area of family law reform into the 21st century as Deputy Shatter put it, and he is right. But what will that avail anybody if the remedies being provided here and prescribed cannot be availed of by the people who need them, by the people who do not have the money to put up front £1,000, £1,500 or £2,000 or whatever to pay the solicitors, the barristers, the VAT, the court costs and all these other items that go to make up an action in the Circuit Court? That is what it will cost. The lawyers will charge that whether they have their wigs on or not. We know the new court system will be informal, they will not have their wigs and gowns on, but I do not believe for one moment, and I do not think any of us around here would believe, they will reduce their fees in any way on that account.

What is the situation of a spouse, who needs a judicial separation and who comes to seek one under the terms of this new Bill when it has become law? Let us envisage the situation. It could happen to any of us, even to the Minister sitting in his clinic in Limerick. A constituent could tell him her marriage has broken down and she is in difficulties and wants a judicial separation. She tells the Minister she has heard about the new legislation and wants his advice. She may say she voted for Fianna Fáil all her life and ask what have they done for her. What will the Minister say? He will tell her, there are a few good firms of solicitors down the road in Limerick city, and she could go down to them. The spouse — more likely a woman — will ask how much that will cost. The Minister would have to say in truth: We have provided in this Bill that you will have to go to the Circuit Court. It is regrettable, but that will cost you £1,000 plus. As sure as can be she will tell him she does not have £1,000. In fact, she has no money at all because she is on separate payments from her husband, she lives in a corporation house and she does not have the means to pay £1,000. Then the Minister no doubt will tell her to go to the Law Centre operated by the Legal Aid Board.

We all know the reality is that, unfortunately, the resources that could and should be provided for legal aid in these cases is not available. Nobody here has to take my word for that. That appears in the report of the Legal Aid Board — I would like to read paragraph 8.1, page 16, which says:

The recently announced intention of the Minister for Justice to reform family law is most welcome and the Board has been glad to provide suggestions in this regard. The Board has to make the point, however, that reform of family law will, unfortunately, not be of very much benefit or relevance to a great many people unless at the same time, a serious commitment is made to provide adequate staff and adequate funds for the expansion of the legal aid service. Unless the necessary resources are provided, the Board will be unable to make equal and effective access to legal services available to those who need them.

At the bottom of the same page it states:

There is already a queue for legal services. The anticipated demand likely to be produced by the proposed legislation will lengthen this queue to an extent that will make its anticipated advantages illusory for a great many people.

That is the Legal Aid Board's report. If anything, the situation has got worse, instead of better since then.

In responding to this series of amendments will the Minister tell me a number of things. I want him to tell me, first, that he will guarantee to this committee, and to the House in due course, that the Government will ensure that substantially increased funds and resources are made available to the Legal Aid Board to enable them to open up the remedies being provided in this Bill to people who need them. Will he give that guarantee to those women and men who will need to have recourse to this new law when it comes on the Statute Book so that they will have access to it.

As a second alternative will he tell me that he will support my amendments by opening up this procedure and these remedies to the District Court? If he does that — I hope he will — the moneys and resources that are required are on a different plane to those that would be required to go to the Circuit Court. In the first place, solicitors alone without counsel practice in the District Court, and their fees are modest and more moderate and they will appear there for a fairly nominal sum. Even if the spouse — the woman more likely as it will be in most cases — has no money at all, even to pay a solicitor, she can go along to the District Court Family Law Office and that is an excellent institution. I want to commend and pay a tribute to the people who work in the family law offices in the District Court. They assist people for no charge in preparing the initiating documents to get their claims into the District Court on applications for barring orders, for maintenance orders, for custody orders, for access to children orders and so on for no money at all, at no cost at all. There, justice is open to everybody. I have no doubt that those same excellent officials who work there would do the same on applications under this new legislation if there was a District Court jurisdiction to enable them to do it. So, tell me, Minister, as a second alternative that you will accept the amendments so that that procedure can be opened up at a very low cost or at no cost at all to those people who need them. Or, thirdly, be honest about it, and tell the committee that you do not care and you do not mind whether the new remedies being provided for in this Bill are to be accessible to people of no funds or that it is a matter of indifference whether they have that access. That is another alternative.

Those are three things you can tell us. Please do not tell us that the District Court is not a good place for these applications to be brought in, that the district justices would not be up to it, do not tell us that. The District Court is a court of justice in this country set up under the Constitution and under the Courts of Justice Act and the people who serve as district justices do an excellent job of work in many aspects of the law, including the family law area. They cover virtually the entire gamut and range of family law matters already. By and large my information is, up and down the country, that they do a very fine job, an excellent, responsible job and a thoughtful and caring job.

There may be district justices here and there who do not measure up to this branch of the law or to others. They do not have to be delegated to the district family court. There are Circuit Court judges also who would not measure up very well to this branch of the law and no doubt High Court judges either. Courts are over-ruled by higher courts all the time, even High Court judges are over-ruled. By and large the district justices who deal with family law matters already are very well qualified to deal with the situation but even if they were not all that well qualified to deal with it, when the lady comes to the Minister in his clinic in Limerick and puts her position to you and if you have to tell her, "no, legal aid is not open to you, you cannot go to a private solicitor because you have not got £1,000 or £1,500 and I am afraid I did not let you have the District Court where you could have gone because I think the district justices might not be very good at these cases." I would imagine her response to you might be, "whether they are good at these cases or not, it would be better at least that I should be able to go there than have nowhere at all to go to."

Distinctions have to be drawn in all branches of the law as they are in fixing jurisdictions of the various courts. Are we going to set about here in this committee and put on a parity, the case of a family who own a house worth, let us say, £100,000 plus, plus two motor cars, a thriving business, money in the building society, stocks and shares portfolio — that will go to the Circuit Court, that is all right, there is nothing wrong with that, that is one end of the scale, they can afford the Circuit Court and they may pay for it — and, at the other end of the scale, the family living in a corporation house, paying a rent, unemployed, home assistance, inadequate as it is, no bank account, no building society account, no nothing? They will also have to go to the Circuit Court to get a judicial separation. This makes no rhyme or reason, put it as you will, praise up the Bill as you will, and it is an excellent Bill with excellent remedies. That is why I want these remedies opened up to the people who cannot afford to go to private law and who are denied the services of the Legal Aid Board because the Minister is not providing the money for it.

When there was a great deal of tension building up on this Bill on the approach to the motion to re-commit, I recall meeting with Deputy Monica Barnes, a person for whom I have a high regard, and she said to me, "if you do not vote for this motion to re-commit, the women of Ireland will never forgive you". I am sure she will remember that. I would like to remind Deputy Barnes and ask for her support on these amendments and to say to her in return that if, likewise, she fails to support these amendments I think the women of Ireland or most of them who are not in the ultra-money class, may well feel the same way towards her and say, "the women of Ireland will not forgive you if you do not support these Amendments". I would like to ask her colleagues likewise to secure their support so that the fine new remedies being provided for in this Bill will be open to all and not just to the few.

We spoke against this proposal when it was previously discussed in Committee. I am sure every member of the committee would have a certain sympathy with the amendment, but unfortunately there are difficulties which do not appear to be capable of being resolved. While the case could perhaps be made because of the extensive family law jurisdiction the District Court already possesses, that the granting of a decree should be dealt with by that court, few cases will be as simple and as straight-forward as that. The main reason for coming to court will often be to resolve disputes about other matters, including property matters. I do not think the District Court should have jurisdiction over the division of property including the division of the family home. The District Court has no jurisdiction at present in equitable matters of this nature. In particular also, it would not be appropriate to give the District Court jurisdiction to extinguish the succession rights of spouses. In addition, the present monetary jurisdiction of the District Court does not exceed £2,500. I would be opposed to any increase in that limit other than by way of a general review of the jurisdiction of the District Court which would inevitably involve a review of the Circuit Court's jurisdiction also.

Unfortunately the comments made by Deputy Taylor as regards this Bill are not in relationship to the reality of what happens currently in the courts even in the context of what are inadequate separation laws. I am afraid Deputy Taylor is substituting rhetoric for reality. As on occasion he does, he is expressing a concern about an issue and is then trying to go on and suggest that a measure produced by the Fine Gael Party by way of a major social reform really is not what it is set up to be.

Some members of the Labour Party have this continuous need to try and pretend that the Fine Gael Party or the Fianna Fáil Party have a concern solely for the rich and do not care a hoot for anyone else in society. That is not true.

The reality is that currently under our existing legal system, albeit inadequate, in the region of 60 per cent of the family law cases that come before the Circuit Court, you would find a Government Law Centre representing either a husband or a wife and in some instances both. The reality is that currently the majority of couples whose marriages break down, who come before the Circuit Court, are represented by the State in the family law proceedings because they do not have the financial means to represent themselves.

To suggest that the Circuit Court is a court for the rich, or to suggest that this Bill will not extend a remedy to anyone other than the rich, is a complete fabrication and a distortion of reality. It is regrettable that Deputy Taylor should, in the last few days, have started to market this view. It appears to be a view he has marketed at some length following all other matters being agreed as regards the Bill. It may mislead many people who, up to now, have looked to this Bill to provide them with hope and who have looked to this Bill to provide them with a remedy, into believing that perhaps after all it is not there to help them. That is just, frankly, untrue and a misrepresentation of what this Bill is about.

I do not know who the rich are that Deputy Taylor refers to. Maybe one of the problems of this country is that we need a few more people who can be described as being truly rich in a number of senses. I know we have many deprived communities and many communities living in poverty, and I am very familiar with the constituency Deputy Taylor represents. I am familiar with the problems of Tallaght and other areas. There are problems of marital breakdown in all sections of the community throughout Irish society. You will get people from all sections of our community currently having their marital problems dealt with at a Circuit Court level through legal aid solicitors.

I have no doubt about the fact that the report of the Legal Aid Board is right in one respect. Unfortunately, Deputy Taylor is misrepresenting what that report says. Nowhere in the report of the Legal Aid Board will you find a recommendation that judicial separation proceedings, be it under existing law or under this Bill, should be dealt with at District Court level. Nowhere in that report do the people who deal with those who require legal aid suggest that it is desirable that the District Court have a jurisdiction in judicial separation proceedings; and nowhere does the Legal Aid Board suggest that its problems would be in any way resolved if such a jurisdiction is conferred on the District Court.

The Legal Aid Board said — which is correct — that upon the enactment of this Bill there will be a greater demand for assistance in the area of family law remedies. There will be many people whose marriages have broken down, who are exluded from a remedy and who are excluded from help by our existing law, who will use this Bill to seek a separation decree. They will use this Bill to seek a separation decree whether jurisdiction is conferred on the District Court or the Circuit Court. What concerns the Legal Aid Board is the increased demand that will be made for their services. There is no doubt that there will be an increased demand for their services but in no way will the problem be resolved by the District Court being conferred with the jurisdiction. That will not resolve the problems of the Legal Aid Board.

I have no doubt that there is a need for more law centres. I have no doubt there is a need for more solicitors to be employed in law centres, and I hope the Government will provide the Legal Aid Board with the necessary resources to open law centres in parts of the country where we do not have them, and provide them with the resources to recruit additional staff in some of those law centres that are very clearly overworked and understaffed and are currently not able to cope with the need that is there. That need will certainly be extended when this Bill becomes law. The problem of meeting that need is not resolved in any way, and there is no direct relationship to resolving it, by giving the District Court a jurisdiction.

Deputy Taylor is approaching a problem that needs to be tackled — a problem that cannot be tackled by a Private Members' Bill which cannot provide for financial expenditure — by suggesting that in some ways this Bill is deficient because it does not resolve a problem it cannot resolve and which is a matter for Government. I support Deputy Taylor in the view that there is a need for more resources for law centres and for the Legal Aid Board but that view bears no relationship to his argument that the District Court should have a jurisdiction in this area.

Deputy Taylor made a comment in the context of Deputy Barnes' saying to him that the women of Ireland will not forgive him unless the Labour Party support the recommittal motion. Deputy Barnes comment was very true. It is not for me to say why she thought there was a need to make such a comment. Nevertheless it was a true comment. I suggest to Deputy Taylor that the women of Ireland would not forgive him if this amendment was made to this Bill, because this amendment is grossly deficient.

This amendment, as it is tabled and in its content, could undermine something this Bill is designed to do. This Bill is designed to ensure that a dependent spouse, who most often is the wife, will be guaranteed that when a separation case is initiated — be it initiated by her or her husband — the courts will have a duty to protect her interests, to ensure that some permanent and secure position, where possible, is made for her in the future, to ensure that she receives full protection, in the context of a violent marriage, from the violence of her husband in the future and to ensure that she receives adequate financial payments.

The problem with Deputy Taylor's amendment is that the husband who wants to escape his obligations, who does not want a full examination of his finances and resources, would, under this amendment, be able to vote for going into the District Court, knowing that the District Court would have very limited jurisdiction in the area of making financial orders, and try to force through a separation decree which would result in financial orders being made for the dependent wife of a far less exacting nature on the husband than the merits of the family situation would require to be made.

Deputy Taylor is proposing in this amendment, as opposed to something that would constructively contribute to ensuring that this Bill works for everyone, a loophole which could result in a District Court jurisdiction being used by spouses who are trying to evade what should be their full financial commitments to their wives and children. Deputy Taylor has not thought through the impact that this amendment could have in that context.

The Bill recognises that there is violence in some of the marriages that break down and we have preserved a provision whereby a separation decree will be granted on the basis of unreasonable conduct of a spouse. The reality is that we have a number of marriages in which there are extreme degrees of violence. Most often it is the wife who is battered. On occasions it is the husband who is battered. The wife who goes to the court looking for a separation decree, whether she is someone whose family is in receipt of social welfare payments, or is the spouse of a husband who has a large income, or if she has a large income herself, will seek under this Bill, in the one set of court proceedings, not just a separation decree but a barring order. She may want an order to exclude the husband from the family home in the future, so that she cannot be battered again and there will be no repetition of violence.

Under Deputy Taylor's amendment the only barring order the District Court will be able to make would remain in force for 12 months. Therefore a separation decree granted to someone from a low income family — a wife living in a local authority house who has been the victim of ongoing violence for many years — will result in that wife, under Deputy Taylor's amendment, being granted a separation decree and may result in the Distrct Court excluding the husband from the family home for 12 months. When the 12 months have elapsed, the wife will be at risk of the husband returning to the home and assaulting her again. I do not know how this could be regarded as a provision that would protect battered wives or indeed battered husbands.

Deputy Taylor's proposal is misconceived. It is regrettable that he has misrepresented who this Bill may assist in the future. The Bill, as designed, was intended to ensure that we would create a Circuit Family Court, the primary court with the family law jurisdiction, which would provide an even handed legal approach and a uniform legal approach in separation proceedings that would be available to everyone who lives in this country, without any discrimination between any income groups. It would extend to a uniform legal approach in separation proceedings that would be available to everyone who lives in this country without any discrimination against any income group and that it would extend to the battered wife living in a local authority house trying to support herself on social welfare payments the same legal remedy as is available to the battered wife who lives in a more upmarket house in Foxrock who also requires protection and help.

This proposal — and I would suspect Deputy Taylor has not addressed this in detail — could undermine the intent of the Bill and would result in a diversity of different courts having different powers in the area of separation proceedings to the detriment of all dependent wives in particular who will seek to use this Bill as a means to provide themselves with adequate financial protection and with protection from violence.

I would like to say at the outset that I have sympathy with the thrust of the amendments tabled by Deputy Taylor. We should be aiming to give the benefits it is hoped this Bill will offer to as wide a range of people as possible. I understand the thrust of the amendments is that because the District Court is accessible and cheap Deputy Taylor feels it is the place where we should allow the provisions of this Bill to be implemented. However, in the final analysis I do not agree that is the best reading of the situation.

At present there are a number of family law matters which may be dealt with in the District Court and in general, they are of a summary nature. The District Court is, and should remain, a court of summary jurisdiction. I do not believe that decrees of judicial separation are in any way a summary matter and they should not be dealt with in a summary manner in a court that is designed to do that. It would be horrific to have family law cases in the form of the decrees that are being sought under this Bill being applied for and dealt with in the midst of cases for drunken driving, road traffic offences, prostitution and other cases. Anybody can go to Court No. 6 on a Monday morning in the Dublin District Court and see the variety of cases that are dealt with and the summary nature of justice that is used which, quite rightly, is the case in the court of the lowest jurisdiction.

I would be extremely unhappy if the decrees we are talking about here dealing with intimate matters of people's lives was to be put under the kind of pressure that exists in District Courts. These cases need proper, calm consideration and I do not believe that is available in District Courts and I do not believe we should be looking for that. I accept that the Legal Aid Board is constrained at the moment and is going to be more so when this Bill is passed. I echo what other speakers have said about increased funds and proper funding for these centres. Otherwise it is going to become another law that falls into disrepute because it is not available to the vast majority of people. After this Bill is passed, the next step that should be taken by those on the Opposition benches should be to improve the funding for the Legal Aid Board.

The nature of the case, be it drunken driving or whatever, should determine the proper court and not the monetary amounts involved. We should decide that the minimum court that is and should be involved is, as is presented in this Bill, the Circuit Court. The Dublin District Court operates in family law matters in a different manner to those around the country and from the information I have the situation countrywide in District Courts — if Deputy Taylor's amendment were passed — would mean a travesty of justice in separation cases. It would be by no means the fault of the court or the fault of the district justice. It would be that the court and its jurisdiction and the type of justice available would not lend itself to proper consideration of cases under this Bill.

It would be appalling if we got to the stage in this country that if you were from the corporation house you went to the District Court and if you were from the middle income group you went to the Circuit Court. There are more aspects to this Bill than deciding on property rights. Is it the case that a District Court justice would decide on what is required under section 2 of this Bill if you come from a corporation house and a Circuit Court judge would decide on what is required in accordance with section 2 of this Bill if you come from a middle income group? That would be a retrograde step and we would be doing nothing only creating greater divisions in our society. This is a human problem and the same court should deal with all applications, whether you come from a rich family, a poor family or a middle income family.

What Deputy Taylor is talking about is proper representation when you go to the court that has the jurisdiction. That is a separate problem to what we are dealing with in this Bill. It would be wrong that because you have not got the financial backing you cannot get justice in this country in relation to family law cases. Any of us who are in political life must see to it that people who find themselves in this situation get proper representation.

It also opens up another question. I understood that what we are trying to do in this Bill is to take family law cases out of the normal stream of judicial hearings, going so far as to abolish gowns and so on. I hope that the judges who will sit in these courts will be properly trained and have a proper understanding of the human aspect of whatever case comes before them. If we establish that, surely it is not necessary that people must have a barrister and a solicitor to represent them in that court? Surely we are going to have a situation where there will be solicitors properly trained in this area of the law, be it legal aid or otherwise, who will be able to give proper representation before a judge who will be adequately trained and have a proper understanding of what this law is about?

I say to Deputy Taylor that the Fine Gael Party and I are as concerned about the poor in this country as he and the Labour Party are and I would not like it to go out of this committee that only Deputy Taylor and the Labour Party voiced the concern of the less well-off in this society. We have as much concern as anybody else and I am sure every member sitting around this table has the same concern.

Let us deal with the issue. The issue here is that people who find themselves in this situation should be able to go to a court — we have decided that the Circuit Court is the best place — and they should get a fair hearing before a judge, properly trained, and have proper representation. Do not say that because you come from a corporation house you go to the stalls and because you come from a middle income group you go to the boxes. That would be an appalling situation. I urge the committee to accept the Bill as it stands and reject this amendment.

For years all of us who have been interested in family law and related judicial hearings have asked for the same decent facilities to be given to couples who come along in traumatic circumstances, perhaps with children involved, and for trained people to be available to help them. We have difficulties — I am not going to take up the Minister's time and anybody else's because I have heard him speak in the Dáil already about it — with regard to the decrepit state of the District Courts of this country where sometimes literally you have to hear a case out on the footpath and there are not toilets for both sexes. To say to people who have not got an income that would allow them privately and personally to take on legal help that in some way their only recourse to justice in this country was through a District Court, overcrowded, badly in need of reform in its own way, is totally unacceptable and unjustifiable. I do not think that the women or anybody else seeking justice in Ireland would thank me for that.

It is also significant, I want to say to Deputy Taylor, for whom I have the highest regard but I think on this one it has not been thought through, that even when we had a Labour Attorney General never was it suggested by him — I have actually shared platforms with him on law reform — that the District Court should have such a jurisdiction.

He drafted the amendments.

That is something he will have to answer in his capacity. However, when he had an opportunity to do something about it and put his money where his mouth was, it certainly did not occur nor was it even suggested. I would like to believe that the arguments put forward here would be taken by Deputy Taylor. None of us is taking away from the thrust of the argument, of the concern we have that in opening up and improving judicial facilities for people caught up in this painful and difficult situation that their expectations would be raised and we would not be able to fulfil them. The argument and the lobbying at this stage has got to concentrate on the free civil legal aid to be available to the people. All of us should tell the Minister that as long as he is Minister and any other Minister, until that is done there will be that lobbying. In fact, I suggested to the Minister in a recent debate on this very issue that even if we had to go as far as actually setting up another subhead under our national lottery allocations that I felt that the cases and circumstances of people who needed this same equal justice as everybody else would be considered as important as sport or the arts in Ireland. That is one way. I will be alongside Deputy Taylor for free civil legal aid.

I can never conclude without saying this; I want to put on record again that there are spouses living in middle income houses with no independent income of their own who cannot choose any counsel or solicitors and pay the cost themselves. The dependent woman in the home very often, because of social strictures, has less manoeuvrability with regard to what she can do than somebody who has a fair-minded, generous working husband. Let us make no social divisions on this one because all the women of Ireland deserve free civil legal aid if and when the case arises.

Deputy Taylor started his contribution by referring to the woman in Limerick visiting the Minister in the constituency clinic. At no stage did he indicate whether that person was working-class, middle income class or whether the person was from any particular district in Limerick. The concept that the person we are talking about is from Tallaght, or the person is of poor circumstances has been introduced by a number of people here who are saying their heart is as much for the poor of this country, as is Deputy Taylor's and his party, or indeed myself and The Workers' Party.

I do not accept that proposition at all. I want to say to anyone who decries the concept of stalls and boxes when it comes to dealing with issues in this country, that all Irish society is about stalls and boxes. Whether Deputy Barrett likes it or not, when it comes to going into any court on any issue in this land it is a question as to whether you are sent to the stall or boxes or, more particularly, whether you get there at all. That is what Deputy Taylor's amendment is about: the prospect of getting into court at all in the first instance, not which court it will be. It is, can you get there.

The case is strongly made out here for us to look at the question of the role the District Court can play. I supported the principle in general strongly the last time we were here discussing this Bill. I still do from the basic point of view that as much as possible we must seek to enhance and develop the concept of the District Court as the most popular, the most democratic and the least costly court available. We will serve the interests of justice, not just in the context of this legislation but indeed of all legislation, if we could work from the principle of recognising that the District Courts are the most important jurisdictional courts in the land and we should be enhancing them and developing them as far as practicable.

Constantly the concept has been introduced that the District Court is something known as a court of summary jurisdiction. It is a concept that goes back to the days of colonial and baronial-type justice in this land where the Distict Court was in fact the Magistrates Court, the court of the local lord, where you were dragged in in chains and dispatched summarily to wherever was decided. It is from that concept that this notion of summary justice has evolved and been borrowed to describe — or more accurately to decry — what goes on in the District Court. I remember one of the very first public duties I took on was to go at the request of the courts officers of Dún Laoghaire to visit the District Court in Bray. If I remember rightly Deputy Barrett was there.

And always will be.

He was charged with trying to do something about the appalling working conditions of justice in Dún Laoghaire. We were brought out there just to be shown what can be done with the District Court in a physical and real sense. What is going on in Bray town in the courts there, thanks to Wicklow County Council, has nothing to do with notions that people are whisked in and whisked out summarily. There are separate rooms provided in a modern building for the litigant parties to family law matters, there are separate consultation rooms, toilet facilities, there is a separate courtroom provided for the judge to go and sit and listen. That is the kind of direction we should be moving in. Similar facilities exist in the metropolitan courts here in the city for dealing with family law matters. It has been brought and developed to the extent that Deputy Taylor has indicated, where the court clerks perhaps dispense and deal with more family law business than any legal aid centre.

In what conditions?

In conditions that see justice well done for those who have only those officers to deal with. Let no one now twist this argument so far as to do down the voluntary work of these people to try to make an argument that just simply will not stand up to close scrutiny.

It is the conditions of their work——

The point I want to make is that what we should be doing is looking at what the courts offices and facilities in the metropolitan areas and in areas like Bray are doing and try to emulate them and develop them. I understand the reservations of people on the one hand who are practitioners and do not find it comfortable to have to go into the squalor of many of the District Courts in this city and indeed in the country. That is something a Minister some day might well address and do something about in conjunction with local authorities who have in some areas responsibility in this regard. It is not a reason for doing down a principle.

There is also a reservation among family law practitioners and a lot of them working in the law centres who, because of the rules of the legal aid board, cannot send barristers in unattended in areas to deal with family law matters that they can avail of in the Circuit Court jurisdictions. That is a problem of the regulation of the legal aid board. That is a problem of the resources available to the law centres. There is no way obviously that the law centres could handle this legislation if amended in the way Deputy Taylor suggests but again that is not a reason for doing down the principle. I had opened up here suggesting earlier that maybe we would accept what the Minister and Deputy Shatter were seeking to do, but I am infuriated by the arguments presented here suggesting that justice cannot be dispensed adequately in matrimonial or other matters in the District Court. At the moment we give jurisdiction to the District Courts to do down a partnership of marriage for up to two years using the barring order procedure. There is no uproar or no cry that marriages have been abused; that the District Courts have run riot and are incapable of doing their job in that regard. It is not permanent but my point is that it still can interrupt an existing marriage for a very considerable period.

I would be interested to look at statistics to see what impact these orders have on permanently putting partners asunder. The approach in principle should be to develop and enhance the court that is the most democratic because of its availability geographically and because of its informality, that is least cost effective and that would deal with a very real and urgent problem that exists in this country today, not of deciding which judge but of addressing the problem if you can get to a judge at all.

Just a couple of points I would like to make. The argument being put forward now by the proposer of the motion or by Deputy McCartan is whether there is access to these remedies and the idea that the District Court is the best forum since it is the most accessible to most people, certainly the most used in terms of the numbers that go through it.

Earlier in the debate on this Bill it was being put forward as absolutely necessary that we widen the remedies that are available and make sure that all these property variation orders, property transfer orders, etc. would be part of the jurisdiction of this new family court. On the one hand you had the argument that family separation should be taken into the 21st century and that we have all these orders which will affect property, maintenance, variation, custody and all these very intricate legal remedies which prior to this were done under separate sets of proceedings. We were going to make it uniform and everything would be dealt with at the one time. That is a good idea and is incorporated in the Bill, but now we are being told that the consequence of that does not mean that a district justice cannot deal with it at 10.50 a.m. on a Monday morning or Wednesday morning in Tullamore, Athlone or somewhere else with about 500 road traffic cases waiting to be heard the same day.

If you want to modernise the law and provide all the remedies you feel should be there, by definition that means complex issues are involved, issues that will require a lot of teasing out before a court, formally or informally that is irrelevant. A lot of time will be involved in working out what precisely will be the outcome in these proceedings because in the judicial separation cases which are addressed in this Bill we have the most intractable problems where they have not been able to work out a separation agreement in a solicitor's office. So, to think you can walk into the District Court and solve these problems, to give them the weight and argument that is necessary to actually resolve the problems, I honestly think is totally impractical.

The question of access and financing of the Free Legal Aid Board is a separate issue and given the fact that there will be proceedings coming under this new legislation, one that will have to be addressed. I notice that Deputy Barnes was the only Deputy on the opposite side who went looking for increased funding and actually said where we might find the money. Others talk about the need for increased funding but they do not say where we might cut expenditure to meet it. But that is a different issue. The point is that it is important that people get access now to this legislation but the second point is, that it is also important that in administering the judicial system which will deal with these problems, we have a professional, competent and full discussion on the very complex issues involved in resolving these problems. Quite honestly the District Court at the moment because of its workload is not in a position to deal with this. If we are saying that is beside the point and we want to revolutionise the District Courts system, I think we are going into orbit completely and no Marxist-Leninist analysis of the situation is going to resolve that problem. If we want to be practical, given the complex legal issues that are going to be involved in these very difficult cases, the Circuit Court is the obvious court to deal with it. Secondly, we are all agreed that people must have access to that court and that will involve financial allocations being made over and above what has been made in the past because this is a new situation where there will be new proceedings being brought forward. That will be dealt with in due course. But to say that we can modernise our family law system and, as a consequence of discussing this Bill, increase access to all our courts within the confines of the terms of this Bill, is not being realistic. Not alone is it not being realistic, it is not being relevant to the issues under discussion in this Bill.

We should stick to what is at issue here, which is making sure that we have a law which stands up and which deals with the problems we have been discussing for long enough now at this stage, and let us deal with access and financing and all the rest of it as a separate issue. If you want to confuse the issue, you might be able to do so with some success but the point is that we are legislating to provide a modern law of judicial separation. The funding arrangements in the free legal aid system is a separate issue. It is a related issue, it is one which will measure the success or otherwise of the legislation as it is interpreted, but it is not within the confines of this Bill.

As has been mentioned this is a Private Member's Bill which cannot deal with financial matters and we should deal with it on that basis. Otherwise we will get into an area which, quite frankly, we have no way of resolving within the confines of this discussion.

I have listened carefully to the various comments that have been made by the Deputies around this table and I must admit that I am gravely disappointed at the response that has been given to these amendments, sorely disappointed.

I invited the Minister to say he will ensure that funds are made available to the Legal Aid Board. He gave no response to that request. I invited him to say that he would consider the amendments favourably. He declined to do so. I invited him to say what his attitude would be to the person in his constituency clinic and he declined to do that either. He said that it was not appropriate to give this jurisdiction to the District Court, that the District Court did not have it in the past, that the amounts were too high and that the District Courts did not have property adjustment orders in the past. Of course they did not. But is that any reason why, if the situation demands it, when we are making a new law here, that we should not do that?

Deputy Shatter accuses me of indulging in rhetoric rather than reality. The reality is the woman in the Minister's clinic who is asking for guidance. What does she do when she needs a judicial separation? That is reality, never mind the rhetoric. I want to know what is the Minister — when I say the Minister I mean each and every one of us around this table because it is a situation we are faced with and will continue to be faced with and I am using the Minister to highlight the example — going to say to that woman when she comes in and says she needs a separation and asks where does she go? It is not a question — as Deputy McCartan rightly pointed out and hit the nail on the head — of the person from the corporation house going to the stalls or the person from the upper class going to the boxes. The position is that the person from the working class or the corporation house will not go anywhere — not to the boxes, not to the stalls, not anywhere.

She will go back to the misery of a marriage that needs a separation and stay there. That is reality; that is not rhetoric. I am sure as TDs up and down this country, we have met that situation. What will we say to that woman? Will we send her to the Legal Aid Board when, as we all know, as they say themselves, they cannot cope now with their present case load? They will be less able to cope when the new remedies are introduced and even more demands are made on their resources. What will we tell that person to do then? I wish somebody would answer that question for me.

Deputy Shatter made the point that in the existing family cases that go to the Circuit Court, 60 per cent are represented by lawyers from the Law Centre. That is exactly my point. There is complete reliance on the Law Centre; the majority of people who have to go to the Circuit Court or to the family law court, rely on the law centres. The question is, how many people were not able to get there through the law centres? Sixty per cent of those cases in the courts come through the law centres but how many more people wanted to get there and could not because they could not afford it and the Legal Aid Board were not able to take them?

When this new legislation comes in and the Legal Aid Board is in an even worse situation with increased pressures, people will be denied justice. The intent behind the amendment is to provide accessibility, of some sort. The whole thrust of my amendments can be summed up in that one word "accessibility", to give those people some hope, never mind whether it is a summary hearing or a detailed hearing of the case, I am talking about any hearing of the case in a court, any court. When they get to the District Court they will get a fair hearing, a good hearing and a responsible hearing. The justices do a fine job as I have said. Deputy Cowen made the point of having these cases mixed with the road traffic cases on a Monday morning——

Work load.

The work load. The amendment provides just as Deputy Shatter's Bill provides, that there will be a special family division, to be known in his case as the Circuit Family Court, and to be known in my case as the District Family Court. It would be a special court for family purposes and it would not be involved in hearing road traffic cases on a Monday morning. Deputy Shatter says the Bill gives hope to many people and that my amendment will take away hope. Quite frankly, if they have to rely on the Legal Aid Board or on putting £1,500 up front to get their cases under way, I am afraid any hope they may have for this excellent Bill will be very quickly dashed and broken to pieces on the anvil of reality.

It all boils down to this. We know about the provision of money for services by the Government, aided and abetted by Fine Gael and the Progressive Democrats, but the reality is that there can be no reasonable expectation of funds being provided by the Government in their budgetary policy for a proper service by the Legal Aid Board.

The amendments attempt, to provide a measure of accessibility to people who will need these new remedies. The only way that can be done would be to open up the jurisdiction, subject to the defined limits specified, to the District Court.

It was said, I think by Deputy Shatter, that my moving these amendments or talking about opening up the accessibility of the measure, could perhaps undermine confidence in the Bill. Quite frankly, I do not see how it could. It might perhaps undermine the income anticipated by lawyers practising in the family courts because there has been a substantial lobby from lawyers practising in the family law area against this amendment. That does them no credit.

Deputy Shatter says my amendments introduce a loophole because the maximum barring order that could be granted on a separation application in the District Court would be one year. That is a pretty poor argument. If that was all that was needed to remedy the matter, there is nothing to stop us extending the jurisdiction of the District Court so that a barring order for a longer period than the one year can be granted. We are lawmakers, we are making new law here, and if that was all that was involved we have the means and the ability to remedy that without too much difficulty.

Anything else I say would be repetitious. I am really disappointed at the response here. I do not understand it and it would be nothing short of a tragedy if all of us, and in particular Deputy Shatter and the Minister having gone to such trouble to prepare this measure with these new remedies, ended up saying in our constituency clinics — it will happen, there is no doubt about it —"I am very sorry. Yes, the new Bill is in and here are your choices. We know what the situation is in the Legal Aid Board, and unless you have £1,500 up front, it is not open to you to avail of the remedies and the measures provided in this Bill." It will be an invidious position for each of us to have to find ourselves in and it will be very sad for the families concerned.

I want to very briefly respond to two things. Deputy Taylor has said that the District Court clerks provide a very good service to assist people, and that is true. It should also be said that the Circuit Court staff provide such a service and are willing to do so. Some of those people who wish to do so at present come before the Circuit Court judges in family law matters without representation and they are given very detailed consideration.

The only other point I want to make is that what is contained in the Bill is being misrepresented. This Bill is designed to make family law proceedings for separation in the Circuit Court speedier. The procedures are simplified, they should make it less expensive, and there is absolutely no reason why, in the context of the administration of the Circuit Court in the family law area, the staff of the Circuit Family Court cannot provide people with any help they may wish to obtain if they do not want to go to lawyers but wish to process their own family matters themselves.

I did not attack in any way Deputy Taylor for tabling his amendment. He is more than entitled to do so. It was important to highlight the fact that the Legal Aid Board will require additional resources. I did not say the amendment would undermine confidence in the Bill. What I did say was that he is misrepresenting the fact that this Bill will actually in practice make a judicial separation remedy a great deal more accessible to people than it has been in the past. He is suggesting that this would not be the case, that this would be a measure only to be availed of by the rich and that it could mislead people outside this House into believing that this is not a Bill that will help them.

There is nothing I have said at any time in connection with this Bill that is not absolutely in accordance with the facts. Deputy Shatter is very wise in the area of family law, but there are others of us here who also know a little about it and who feel we have a contribution to make. I am well aware of the Circuit Court situation, but the Circuit Court clerks do not have the same facility in the more complicated documentation that applies there and the Deputy well knows that. It would be wrong to suggest that people can get the same help in the Circuit Court offices that they get in the District Court offices. That is not any reflection on the people who work in the Circuit Court office. It is a different procedure. It is a more lengthy procedure and there is more involved in the Circuit Court than there is in the District Court. I feel strongly about this and I am pressing my amendment.

Thank you. Amendment No. 31 in the name of Deputy Taylor, inserting a new section.

Amendment put.
The Committee divided: Tá, 2; Níl, 13.

  • McCartan, Pat.
  • Taylor, Mervyn.


  • Abbott, Henry.
  • Colley, Anne.
  • Barnes, Monica.
  • Collins, Gerard.
  • Barrett, Seán.
  • Cowen, Brian.
  • Flanagan, Charles.
  • Shatter, Alan.
  • Geoghegan-Quinn, Máire.
  • Swift, Brian.
  • Kitt, Michael P.
  • Taylor-Quinn, Madeleine.
  • O’Donoghue, John.
Amendment declared lost.
Section 29 agreed to.