Jim O'Callaghan (Dublin Bay South, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I welcome the opportunity to speak on this Bill. I commend the Minister for bringing it before the Dáil. Obviously, under our Constitution the administration of justice is the preserve of the courts. Even though that is the case, we, as Members of the Oireachtas, have an extremely important role to play in putting in place the statutory architecture required in order for the administration of justice to operate effectively and efficiently. That is why I welcome the fact we are bringing the Family Courts Bill 2022 before the Oireachtas.

I know there are other courts within the jurisdiction of the High Court which have their own divisions, such as the Commercial Court division and the Non-Jury Chancery divisions. This is one of the few occasions where we will have express, statutory provision dealing with a division of the High Court. I welcome it and it is appropriate to apply it in the context of family law.

Obviously, people should, if possible, stay away from the courts. I know that may sound trite, but I say that because people should stay away from the courts if it is possible for them to resolve the disputes they find themselves in without the necessity of going to court. There are obvious circumstances where people cannot avoid the courts. If you have committed a criminal offence, you will obviously be summoned before the courts and you will have to face prosecution for the commission of that criminal offence.

A person who is being sued as a defendant has very little choice. People finds themselves before the courts because of the decision of another party to bring them before the courts. In certain instances, somebody who is taking a case has no option and is compelled to bring proceedings.

However, there is no civil litigation that cannot be resolved through compromise, mediation and alternative dispute resolution, and the common sense of the parties recognising that by taking control of the process, rather than outsourcing a decision to a member of the Judiciary, they are probably doing themselves a favour. In fairness, in many instances the member of the Judiciary will just identify who succeeds in the case and who does not.

It is for that reason that many people who go to court find it an extremely traumatic occasion. It is a moment when people do not retain control over the important decisions that relate to their lives. That is most accentuated in family law. People are dealing with issues which relate to their personal and family lives. On many occasions, individuals find themselves before the courts even though they wish to remain in the relationship which is the subject matter of the court case.

I fully recognise that it is a traumatic event for people coming before the courts and can result, more so than in other types of proceedings, in parties, or a party, being very belligerent in their attitude to the proceedings or, indeed, to the other party. However, it is important for us to emphasise, as judges repeatedly emphasise, that parties can try to retain control of the circumstances by trying to reach a resolution. People have mentioned the benefits of mediation and other alternative dispute resolution mechanisms. They obviously have an important role to play.

The most obvious method by which disputes can be resolved is by agreement between the parties. It is difficult in the context of people who have been in a civil partnership or marriage as, when it breaks down, emotions can be extremely high. At the end of the process, no matter what, a judge will make a decision to the best of his or her ability on custody, access in respect of children and the division of assets. They are decisions that could be made by the parties and I do not think we can say enough that they should go out of their way to try to achieve that if possible. Obviously, that is not always the case. It cannot be the case that all litigation can be resolved through the agreement of the parties. However, I welcome the fact that section 8 of the Bill sets out some guiding principles that the courts will be obliged to implement when assessing cases that come before family law courts as a result of the new legislation.

The most important consideration is something we put into the Constitution a number of years ago, namely, that paramount consideration must be given to the interests of the child. Obviously, that should be the first consideration. However, there is also a recognition that one of the guiding principles should be that the parties can try to resolve the dispute themselves. That is something that, as I said earlier, needs to be strongly considered and should be emphasised by judges.

It is worth giving consideration to a contentious issue. Under the Bill, it is proposed that divorce, judicial separation, cohabitation and civil partnership disputes may be dealt with in the District Court. The District Court is probably the most important court because it is the court to which the public has most access. More citizens of Ireland use the District Court than use all of the other courts put together. It is an important court. The significance of the District Court, however, is that it is a court of summary jurisdiction. That is not something to criticise or see as less important than other courts, because it is not. The great advantage of a District Court is that it deals with cases summarily. Criminal cases do not have juries. The cases are designed to be dealt with quickly, and they should be dealt with quickly for the benefit of people who are accused in criminal cases and for the purpose of the prosecution.

In civil disputes, the District Court is designed to deal with small claims which come before the courts. These are issues that should be dealt with promptly. The great benefit of the court is that a district judge will hear each day a series of cases and decide them promptly. The judge does not have to make a reserved judgment. The District Courts play an absolutely central role in the administration of justice.

Divorce and civil partnership cases are very complicated and require careful consideration. My concern is that by involving the District Court in these issues, we are removing that court from the area of summary disposal of actions. I know the purpose behind that, namely, to try to reduce fees, which is a commendable objective. However, there are other methods by which that can be done. My concern in respect of the District Court is that a lot of the time of District Court judges will be clogged up and, inevitably, applications will be brought, if proceedings are issued in the Circuit Court, to bring them down to the District Court. I am fearful that could make the whole process more complex and complicated than it is already.

Bernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome the introduction of the Bill to the House. As the Leas-Cheann Comhairle and I well know, we have had exchanges over the past couple of years on this issue. I congratulate her on allowing it to be discussed in the House. I welcome in particular the role of the Ceann Comhairle in this. He and the Leas-Cheann Comhairle are to be commended for allowing a legitimate debate to take place in the House, notwithstanding the separation of powers to which reference was made by the previous speaker, but recognising that the Legislature has a role to play, independent of the courts. Of course, the job of the courts is to administer, and rightly so. We also have a Constitution in this country. Not all other countries have a written constitution and they build their case law in a different way. We have a written Constitution and, in particular, we have a constitutional protection of the rights of the child, which has been referred to by the Minister and other speakers.

The fact of the matter is that this is a much-required reform of the family law courts, for a whole lot of reasons. It is required for the protection of parents, mostly mothers, but also some men, who have been unfairly treated in the courts and have been brought from Circuit Court to District Court and High Court and back again on the basis that the jurisdiction was not the appropriate place to deal with the case. That costs colossal amounts of money - well in excess of €100,000 in many cases. That left in its wake the destruction of trust in the system by people who found themselves, as they saw it, unfairly treated, and they were.

As we know, the correctly maligned parental alienation clause has been introduced to this country. It has not been recognised anywhere, but has been successful in its efforts to deprive children of their mother or father. To my mind, the most insensitive thing to do is to remove a child from its mother or father, in particular when there are no real valid reasons to do so other than an adjoining dispute relating to property or whatever. It comes down to custody as a means of last resort in order to win a case.

Everybody in this House has dealt with these cases. It has horrified me to see some of the things that have happened, and continue to happen, behind closed doors. In order to avoid having to come to a conclusion, people refer cases in one direction or another, up to the High Court or down to the Circuit Court or District Court or whatever the case may be. That all costs money and creates further delays. It prevents the administration of justice in a way that is clearly available to all to understand and recognise as authoritative and consistent. Consistency is something that we all try to welcome. We all encourage it because that is the strength in the system.

All due credit to the Minister for staying with this concept over the past couple of years, pursuing it vigorously and taking on board the submissions that she received and we all received from members of the public who were directly affected by the proceedings in the courts.

I will comment briefly on the parental alienation concept that has been established in the courts. This has never been peer-reviewed and has never been accepted by peers anywhere in the world. The concept has been discussed all over the globe - throughout Europe, in this country, in the UK and in the US - and the same questions come up every time. The person who first invented the clause had a very chequered history in the context of the attitude to children and to women. I will go no further than to say that because that is a fact, as the Leas-Cheann Comhairle and I know. I welcome the fact that this issue is being addressed at long last. I hope that if flaws are discovered that imply there should be a further visitation to correct any provisions that may be insufficient to deal adequately with a situation as presented, that should be done whenever that occasion occurs.

I hope this legislation will have long-lasting effect, and I believe it will. It deals with the present and the future. It deals with the need to have specialists in the court area. One of the contentious issues has been the issue of specialised reports and expert reports which, in many cases, could not be challenged and became the rule of the court rather than advising the court. That was commented on by a Supreme Court judge in connection with another issue whereby expert advisers will now be coming to court themselves. He rightly commented on that. I hope this puts an end to that concept as well.

Like everybody in this House, I have dealt with hundreds of cases of marital breakdown. We know that happens and, with the best intentions in the world, it will continue to happen. However, it is possible to go through the procedures in respect of reaching a peaceful and fair settlement. Most people will agree to that, if allowed to agree to it. However, if they are not allowed to do so, and it becomes a battle in the courts, it does not always happen.

I welcome the Bill. I hope it succeeds in doing what it is suggested to do and that it brings a long-awaited settlement to the issues that were contentious through the years.