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GAZETTE
OCTOBER 1994
traditionally perceived to have little
knowledge of the areas of individual
psychology or family behaviour.
There is, of course, no official form of
specialised training forjudges in the
area of family law. I felt the paper was
perhaps unduly uncritical in dealing
with this area and did not refer to the
many complaints (justified or
unjustified) about, for example, the
lack of consistency by the judiciary in
the application of family law, and the
equal lack of consistency by lawyers
representing family law clients, some
of whom adopt a conciliatory
approach while others adopt a very
adversarial approach.
Recommendations
Chapter 7 deals with conclusions and
provisional recommendations, and is
very hard-hitting. It is, I think,
worthwhile to quote substantially
from this Chapter.
"We must begin this chapter by
expressing concern about a range of
serious problems and defects in the
manner in which family cases are
handled within our existing court
system . . . Many of the problems are
derived from under-resourcing, both
physical and human. The picture
which emerges is one of a system
struggling and barely managing to
cope with the very great increase in
family litigation in recent years.
The
result is a sad parody of that which
might be expected in a State whose
Constitution rightly places such
emphasis on the protection of family
life."
(Paragraph 7.01)
"Of major concern are the impossibly
crowded lists in many Circuit and
District Courts, leading to a wholly
unsatisfactory situation in which
judges are being forced to make the
impossible choice between brief and
hurried hearings or intolerable delays.
The situation is particularly acute in
the Circuit Court outside Dublin
wherein some venues a judge may
face a list of as many as 70 cases in
one day . . . the quality of justice is
affected . . . the physical conditions of
many courts outside Dublin are not
appropriate for family cases . . . the
absence of proper waiting room
facilities sometimes leaves opposing
spouses to confront one another
seated on benches in cold and
draughty corridors.
Adequate
facilities for consultations between
lawyers and their clients are rare and
some of the court rooms display a
Dickensian squalor.
By contrast the
modern facilities in Dublin offer a
model of what a family court can be".
(Paragraph 7.02)
While I certainly agree with the
criticism of the courts outside Dublin, I
think perhaps that undue credit is given
to the Dublin facilities which are still
inadequate for consultations, as a visit
to Dolphin House will prove. All too
frequently the family High Court is not
used and the High Court judge hearing
family law cases sits in one of the civil
courts in the Four Courts building.
Regional Family Courts
Chapter 8 provides a summary of
provisional recommendations, the main
one being the establishment of a system
of regional family courts, functioning as
a division of the Circuit Court, having a
unified family law jurisdiction, and
being located in 8 to 10 regional
centres, presided over by specially
nominated Circuit Court judges, and
operating in the context of a range of
support and family services. It is
welcome to know that it is
recommended that proceedings under
the Child Care Act, 1991 be taken under
the wing of the regional family court. I
wonder, however, if the Commission
should not have gone further and
recommended that criminal proceedings
against children should also be dealt
with in the family courts. It is common
case that many children get into trouble
with the law because of family
breakdown and it may be very useful
indeed forjudges who have expertise in
the family law area, to deal also with
children who infringe the criminal law.
Personally I feel that there should be
further discussion as to whether the
regional family court should have the
status of the Circuit Court rather than
the High Court. I often wonder why
family law always has to be relegated
to second place behind, for example,
company law. Why should family law
cases, where sometimes millions of
pounds worth of property is involved,
be forced down to the Circuit Court
while all company law petitions go to
the High Court and are welcomed
there. Once more it would appear that
property is valued more than children.
A further consideration is that if the
regional family court, on the level of
the Circuit Court, is not given full
resources, then there will be no
written judgements and therefore no
uniform jurisprudence. It is
noteworthy that although it is nearly
five years since the 1989 Act came
into operation, very few written
judgements have been delivered under
the Act, presumably because most of
the litigation under this Act takes
place in the Circuit Court, where
judges are overburdened and are
under-resourced.
A welcome recommendation is that
attached to every regional family court
there should be a family court advice
centre, providing an information and
referral service, offering information to
clients about counselling and
mediation services, social welfare
entitlements and services, legal aid and
advice services as well as basic
information about the operation of the
family court and remedies available
there. It is recommended that the
advice centre have available various
information packs, carefully designed
and consumer friendly.
Independent Monitoring
Although the Consultation Paper states
that the family proceedings should
continue to be heard
in camera,
there is
an interesting recommendation that
provision should be made for access to
family proceedings by an approved
independent person or persons whose
function it would be to monitor family
proceedings, gather statistics and report
publicly from time to time on the
functioning of family courts.
Bona fide
researchers and students of family law
should, at the discretion of the judge,
be permitted to attend family
proceedings. I wonder if the Paper
should not have gone further to
emphasis the importance of
monitoring, statistics gathering, and the
production of judgements. Personally I
would suggest the establishment of a
person or body charged with reporting
fully on the operation of the family
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