The Gazette 1973

of access to the Courts as a personal constitutional right which could not be interfered with by the Oireachtas or the Executive. It seemed to him that it was a short step from that to saying that everybody, rich or poor, was entitled to meet the legal system on level terms; and that if poverty and ignorance left someone not knowing his rights or unable to enforce them, society and the State had a positive duty to assist him and he in turn had a corresponding right to expect such assistance. Better social benefits and expert information Senator Kelly stressed that his comments were a long way from saying that the State should provide money in even greater quantities in order in effect to provide more and more fees for lawyers. On the contrary, a large proportion of the troubles which underprivileged people encountered were not really material for litiga- tion and fat courtroom fees, but rather for the essen- tially social rather than legal intervention of the State. That could be done by firstly providing better social benefits and assistance, and also by making available expert information or intervention about existing social services, or perhaps by a very simplified system of advice and arbitration. Certainly there were cases in which full-dress litigation might be unavoidable but those were a small minority. As far as help in making most of the existing social services was concerned, the Government had consis- tently refused to institute a system where a citizen's Advice Bureau and an Ombudsman for the reason—as the Taoiseach opehly stated on a few occasions—that the existing army of Dail Deputies, Senators and Coun- cillors were enough for the purpose. "In other words, in order to preserve intact the de- grading dependence of simple people on "benevolent intervention' by politicians so that they may get their rights." The only system worthy of a free Republic was one in which people were given their rights without being asked for a vote in return, Senator Kelly said.. Deserted Wives and Financial Assistance Irish family life is not the "bed of roses" it is made out to be, said Mr. William Duncan, a lecturer in Family Law at Trinity College. He revealed that in the first year after social assistance was introduced under the 1970 Social Welfare Act 2,800 wives had applied for financial assistance of whom 1,600 qualified. This was only the "tip of the iceberg." Many deserted wives could not meet the stringent, means test or satisfy the authorities on the desertion. To talk about the failure of Irish marriages was to talk about a growing social problem. Mr. Duncan added that the trouble with the law at present was that it often provided no remedy where one was needed and where it did provide a remedy it was the wrong one and did more harm than good. Of separation, he was critical of the grounds on which the High Court could nullify a marriage. They were, he said, narrower than those now accepted by the Catholic Church. Many people were obtaining separations—under the guise of guardianship actions which now ran at about one a day. When a marriage broke up there often was disagree- ment over the custody of a child. When the issue came before the High Court the whole reason for the break- up emerged and the child, the centre of the action, felt responsible for the breakdown. This was damaging.

The Court was providing matrimonial remedies through the back door. What was required, Mr. Duncan suggested, was a thorough review of the role of the Courts and Irish family law. "The role of the legally-trained judge in the whole area of family law needs to be reassessed," he declared. Mr. Sean MacBride, S.C., chairman, said it was a sad commentary on this country that there was no free legal aid available in the city until the emergence of FLAG. STRONG RECOMMENDATIONS FOR FAMILY PROCEEDINGS IN CAMERA AND FOR LEGAL AID A strong recommendation that all family proceedings be heard in camera is made in the F.L.A.C. report, which makes proposals for reform in our laws. 1. The High Court: The Petition procedure is cumbrous and anachronistic as pointed out heretofore. It is proposed that a new form of Special Summons be created in its stead, which could claim, in a single multiple Indorsement of Claim, all remedies sought (e.g., Custody of Children under the 1964 Act, a decree of judicial separation, and an order under the Married Women's Property Act 1882). 2. Privacy. It is recommended most strongly and unequivocally that all family proceedings be heard in camera. 3. Legal Aid : It is most strongly recommended that legal aid be available in all courts for family matters. It could be obtained in the same way as the present criminal legal aid is. It is strongly recommended that all stamp duties be abolished for proceedings before courts involving family matters if a party is legally aided. 4. It is recommended that all interim orders be made on motion ex parte. If the judge considers it reasonable, he would have power to order the attendance of the Defendant. 5. It is strongly recommended that all court orders relating to money payments be enforcable through the serving of a Notice on the employer of the defaulting party compelling him to pay the money into Court as the husband earns it. 6. It is strongly recommended that the criminal Dis- trict and Circuit courts sit in camera when dealing with family matters. 7. The same comments apply to enforcement in the District and Circuit Courts as apply to the High Court. Within the present system these are the only practical reforms that can in any way alleviate an intolerable situation. We feel that even if all the above suggestions were implemented the situation would still be totally inadequate. Present Statute Law : Illegitimate Children (Affilia- tion Orders) Act 1930. Enforcement of Court Orders Act 1926 and 1940, Courts Act 1971. Recommendations : 1. In all places where the statute states a limit of time, raise that limit to 18 months. 2. The age to which the weekly sum should be con- tinued should be raised to 18 years. 3. The section relating to evidence should be am- ended to allow an order to be granted once the Justice is satisfied on the direct evidence before him and such evidence is corroborated in some material particular. 45