Aengus Ó Snodaigh (Dublin South Central, Sinn Fein) | Oireachtas source

Gabhaim buíochas leis an Aire as an reachtaíocht seo a thógáil ós ár gcomhair. Is Bille an-thábhachtach é agus tá súil agam go n-éireoidh leis agus linn nuair a théann sé go dtí Céim an Choiste, agus ina dhiaidh sin agus muid ag iarraidh a chinntiú gur píosa reachtaíochta é atá láidir go leor agus a sheasfaidh an fód ama.

Reform of the family law system is without doubt long overdue. I wish this legislation well and hope that as it passes through the Houses it will be strengthened to ensure the family law system stands the test of time. It has in the past, but we all understand and have all seen in our constituency offices, communities and families the effects of the family law system. That is why it is vital to ensure we get it right or as right as possible as the world is changing.

Before I address the provisions of the Bill specifically, I will outline the importance of the family law system and the interdependent areas of policy that often determine outcomes for all involved. It goes without saying that family breakdown is always a tough experience emotionally and financially. We hear accounts of celebrity break-ups that can be described as conscious uncoupling, but the reality for most ordinary people is very different, involving abuse, economic pressures and inequality in the roles played. A family law system that works is a vital component of a nation that cherishes children and protects its vulnerable adults. Our system of divorce is not perfect, but it is preferable to the situation that prevails in many other countries, as divorces are no fault by default.

Agreements can be reached before being set before a judge to be ratified, as well as judicially ordered separations. There is no doubt contentious divorces and separations are somewhat chicken-and-egg situations, with the die often being cast before the lawyers, mediators and courts get involved.

At the same time, we should produce a policy of harm reduction, as long and drawn out battles take an immense toll on everybody, especially children, if there are children involved. It can be hard for people to work together to make living apart work and everything must be done to help them. That is why it is vital that our family law legal system helps and ensures a smooth passage inasmuch as possible for those who are no longer living together or in a relationship together.

The inherently adversarial nature of the court system can be a means of creating or exacerbating conflict between parents. This, in turn, makes a functioning caregiving relationship for a child difficult to maintain. Many people are unaware mediation is available as an option. We are aware of it as we point people in that direction but, initially at any rate, many among the public do not understand the system. We have brilliant practitioners in law who do point to mediation as an option in family law cases but much more could be done to ensure that happens. Many key provisions of the Mediation Act, including the establishment of the mediation council, are still to be enacted by the Government. Perhaps it is something that could be done at this stage or, if not, the next Government can ensure it happens as quickly as possible. It is a means of taking the heat out of what can, sometimes, be an adversarial situation or one of conflict in a case involving family law.

As I stated, the Bill does not address mediation. That is dealt with in the Mediation Act. Perhaps I will return to that point at a later stage. However, one issue that certainly does not help is the length of delays. The Minister mentioned an increase in the number of judges that will be appointed. I was elected a long time ago and I remember there was a row in here about the number of judges who were appointed at the time. I think it was four additional judges. Money was the issue, but it is not just a question of money. We forget that people are behind this. If there are not enough judges or court spaces, people must wait for their case to be heard, be it in the area of criminal law or family law. We must properly fund the Courts Service and provide judges so that we do not have the situation that exists at present for family law cases, especially for contested cases. There are delays even for uncontested cases in some counties of 20 weeks - in Ennis, Wicklow, Naas and Carlow - all in the Circuit Court. There are waiting times for contested cases of a year or more in Roscommon, Trim, Limerick and Cavan. There is a wait time of three years in Naas. We cannot have that. That is wrong for any system. It is good that additional judges are being appointed and that we are trying to address some of the causes of delay in this legislation. That message can go out. It is wrong that the situation got that bad. This is a lifetime for children caught up in family law cases, especially given how quickly they grow up, and also for their parents. There is an impact on their lives if the cases are long drawn out when they do not need to be. We have a duty of care to those children. Those cases are often adjudicated with no resolution when they finally come up, which adds to the difficulty. People can wait three years and find there is still no solution. In that time, people can sometimes get further entrenched.

For some families, these decisions are the difference between poverty and stability. I refer to people who are living in poverty while awaiting the family courts to make a decision or grant them an order. In 2016, the cohort in society involving the many households with one adult and one or more children under the age of 18 had the highest deprivation rate in at 50.1%. Lone parents are 2.5 times as likely to experience deprivation as the rest of the population.

The family maintenance review group decided against setting up a unit to enforce maintenance. Delays in enforcing maintenance orders are ludicrously long. They are potentially ruinous for people. As a party, Sinn Féin has made proposals for a child maintenance service to help families. Other parties have done the same. Our proposal, which is highly detailed, was prepared by my colleague, Deputy Kerrane. It is available online. I do not expect the Minister to look at it, as there are many proposals, but at some stage in the future it is worth coming back to the issue to make sure that the service is in place and that it can act to help in family law cases.

Our document outlines, in detail, the importance of maintenance to one-parent families. The document contains a decade-long analysis of the CSO's survey on income and living conditions, SILC, which consistently demonstrates the lower incomes of one-parent families. While there is no single measure that will tackle poverty among lone-parent families on its own, it is well recognised that child maintenance has a key role to play. Research has shown that in England there was a 30% reduction in the poverty gap as a result of child maintenance payments where there was compliance with orders. That is another issue. This research concluded that child maintenance "has a relatively large impact in reducing child poverty for those who receive it."

Our document outlined four issues that arise with the system as it stands. The courts will not issue a summons for maintenance unless the lone parent can provide an address for the non-custodial parent. This is not always known. It can also create even more adversarial clashes if the parent seeking the maintenance order goes searching for the non-custodial parent. It should be relatively easy for the State to track someone down through their PPS number if he or she is in receipt of another payment or working, rather than perhaps putting lone parents in a headlong clash in some cases with the non-custodial parent.

There are no statutory guidelines on the level that should be set for maintenance payments. Instead, they are at the discretion of the court. That issue has been addressed in the meantime since the document was published. I will skip over that.

If the non-custodial parent fails to comply with the maintenance order, it is up to the lone parent to issue enforcement proceedings himself or herself. One of the problems is that if the non-custodial parent fails to appear at court proceedings, a bench warrant is issued but it is rarely acted upon as there is no prosecuting garda involved. That is something we must examine to ensure there are no delays in further proceedings while the warrant remains unexecuted. The Garda Síochána has been good in recent years in this regard in following up unexecuted warrants that are sitting there. In these cases, there is no prosecuting garda, and the warrants are not given the same priority as others. In many cases, lone parents are slow to issue an arrest warrant for the other parent of their children even in cases of non-payment. That is an issue that perhaps requires further concentration.

Taking all of those issues into account, we made proposals on how the system would work. While the child maintenance service should encourage parents to make their own arrangements, this would not be enforced given that the majority of parents would not use such a service because they do not have to do so. In most cases, that is not an issue that arises. In the case of domestic abuse, parental arrangements would not be put forward as an option and therefore, no lone parent would be expected to make any contact with their ex-partner for maintenance. Parents who are willing to arrange child maintenance themselves can avail of assistance from the service, which will provide them with free advice, support and information.

Direct payment is another option that can be used in cases where the non-custodial parent is willing to pay child maintenance but an agreement on the amount to be paid cannot be reached by the parents. This option would allow the service to examine the individual case and calculate the amount to be paid by the non-custodial parent.

On arriving at an amount, and where there is agreement on that amount, this payment would be made directly and taken from the non-custodial parent to the custodial parent. The third option is collect and transfer and would allow the service to calculate the child maintenance payment, collect the payment from the non-custodial parent and pay it to the other parent. This option could be used in cases where the non-custodial parent refuses to pay child maintenance or it may become an option where child maintenance ceases to be paid under the direct pay option. This option would be used automatically in domestic abuse cases.

That is a lot of detail but it is one of the big rows or issues when people come to my office in relation to family cases. It is to ensure the payment for their children is given and how they can act upon that. Given a large number of court proceedings are related to unpaid maintenance, which can see women in court for the fifth or sixth time seeking payment, and the majority of maintenance orders are filed by women, a solution to the problem would free up valuable court time. That is another issue; the amount of court time taken up by issues that could be dealt with by a service or by a more robust system to ensure that maintenance, where due, is granted, paid and transferred.

There are also other matters to discuss. According to One Family CEO, Karen Kiernan, there is a shortage of parenting programmes, counselling for parents or children and child contact centres that are common in other countries. The cost of court ordered assessments is also prohibitively high and the assessors themselves are not formally regulated. A wider White Paper approach to reform should have been taken, and while I acknowledge the family justice strategy, much of its ambition is about, in its own words, signposting other services that people can rely on. Parents coping with stress and depression can impact on the development of their children and there is no doubt family law proceedings can be extremely distressing and difficult for parents. This in turn can have an effect on children and their development, with overall negative economic and societal consequences. Anything we can do to ameliorate that can and should be done.

The many issues involved with family law cases are myriad and complex. It is unlikely that criminal or civil law alone will ever be able to solve them, as they encompass a large amount of economic and social realities. It is also one area of public policy where we can clearly see that misogyny and sexism actively harms men as well as women. Courts usually assume a woman is the caregiver and the man a provider or breadwinner, not recognising that not every relationship is the same and that many men are fantastic caregivers and many women are fantastic providers. We need to look beyond these assumptions, where appropriate, for the case in question.

Turning to the Bill itself, there are some positive developments within it. Making the best interests of the child a primary consideration in all family law proceedings is vital. I also note the review on the testimony of experts. These reports can determine so much, especially where the case is contested. The provision for the establishment of a Family Court as divisions within the existing court structures carries some concerns, especially with regards to the District and Circuit Courts. The Law Society briefing on the matter is instructive, and I quote:

The proposed changes to the District Court will have the effect of placing increasing demands and strain on an already ailing system. In reality, the District Courts are already heavily congested and are not in a position to process judicial separation and divorce proceedings in an efficient way. In fact, the District Courts are already dealing with more family law cases than any other Court.

The briefing continues:

According to the Courts Services Annual Report 2023, the District Courts have dealt with 61,197 cases of family law in 2023. If current Circuit Family Court matters - 5,784 cases in 2023 - are added to this workload, this would put additional pressure on the District Court.

The proposals to assign judges specifically to the Family Court divisions is also a double edged sword. We clearly need appropriately trained judges who can deal with difficult cases, but there may be some merit in allowing them to develop and add other professional strings to their bow as well, lest it become an unattractive proposition for more talented members of the Bench. Both of these areas can be teased out fully on Committee Stage. Finally, the provision to allow for joint applications is welcome as is the use of mediation and alternative dispute resolution. This will obviously apply to more amicable divorces. On the other side, the holding of hearings in appropriate settings to avoid issues where domestic violence has occurred is also important. More needs to be done to improve the interaction between civil and criminal law in respect of domestic violence and family law, whilst also respecting civil liberties.

We have some concerns in relation to the Bill but we will tease them out on Committee Stage and we will not oppose this stage. Hopefully, at the end of Committee Stage and Report Stage, we will have as robust a piece of legislation as we can in relation to this issue. There is one point to make, even at the outset. I noted the Minister spoke to the Circuit Court limit for proceedings up to €1 million, with the potential to increase it by Ministerial order to €2 million. Given the price of houses in the country at the moment, we might need to go from €2 million to more than that because the value of property has gone up. We should do this so the Minister does not have to come back to this in a few years as it is not just the value of the property, but also about savings and whatever. It is a question that can be teased out on Committee Stage.

Is ceist ríthábhachtach í ceist na gcúirteanna clainne agus na hathruithe is gá a dhéanamh. Caithfimid a chinntiú nach gcuirtear aon bhac ann a dhéanfadh dochar don pháiste, don athair nó don mháthair. Caithfear a chinntiú go bhfuil an córas i gceart, gur córas cothrom agus cóir atá i gceist agus go bhfuil an leanbh nó páiste lárnach i ngach uile rud a tharlaíonn sna cúirteanna seo chun nach ndéanfar dochar dóibh. Ba chóir go mbeadh an chúirt chomh héifeachtach agus chomh cothrom agus is féidir. Agus é sin ráite, molaim an Bille toisc go dtosaíonn sé ag tabhairt faoin gceist mhór seo.

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