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GAZE1TE
DECEMBER1977
AN APPROACH TO FAMILY LAW CASES
being the text of a lecture delivered on 15
June, 1977, to the Dublin Solicitors Bar
Association by The Hon. Mr. Justice T. A. Finlay,
President of the High Court.
Defining 'Family Law'
In the context in which I would like to speak this
evening Family Law can be defined as advice in
connection with or the preparation of litigation in the
following areas; Guardianship of Infants Act 1964,
Petition for Separation
a mensa et thoro.
Family Law
(Maintenance of Spouses and Children) Act 1976,
Married Womens Status Act 1957, Family Home
Protection Act 1976, Illegitimate Childrens Affiliation
Act 1930 as adapted, Petitions for a Decree of Nullity,
and in the context of separation proceedings, Deeds of
Separation.
I will be dealing with the problems arising in this area
as they occur in connection with High Court cases only
and though you may find some of the matters we will be
discussing of some assistance in the preparation of similar
proceedings for other Courts I do not intend to deal
specifically with any other Courts.
General Importance
I am firmly convinced that it is not by the capacity of
the Legal system of this country being the Legislators, the
Legal Practitioners and the Judiciary to handle
complicated questions of contract or tort or to devise
subtle equitable theories and doctrines that we will in
twenty five or thirty years be judged but rather by the
way in which, the compassion with which, and the
efficiency with which, we handle and have handled the
area of Family Law.
I am aware that for a Solicitor the handling of Family
Law cases must be not only emotionally exhausting but
certainly at present and until an ample system of Legal
Aid in such cases is introduced largely unremunerative. I
am conscious as a Judge that it is one of the more
frustrating activities in that fundamentally in dealing with
the problem of broken families and the children of
separated parents one is essentially dealing in a science of
the second worst. Notwithstanding these considerations I
would urge upon you the idea that if the practical
considerations of your practice and the type of work for
which your office is organised permits of it at all there is
on Solicitors as indeed of course also on Barristers a duty
to undertake at least a reasonable share of this work.
Guardianship of Infants Act 1964
The statutory provision contained in Section 3 of the
Act of 1964 that the welfare of the child shall in all
proceedings under the Act be the first and paramount
consideration causes unique features to the preparation
and handling of litigation under it. Welfare of course in
this context by Section 2 comprises religious, moral,
intellectual, physical and social welfare.
Both Solicitors have in relation to a summons under
the Guardianship of Infants Act 1964 as I see it really as
their main client the child or children concerned.
Suggestions have been made as I think occurs under other
Legal systems that the child or children should be
separately represented. There are it seems to me
difficulties concerning this suggestion, ideal though it
otherwise might be, both with regard to expense and to
the prolongation of litigation. For the moment however it
does not exist, but the absence of it puts a special and
unusual obligation on the lawyers involved on either side
of the case, and, in particular, it seems to me upon the
Solicitors who take the instructions of their respective
clients and prepare the case for counsel.
1 think most people would agree with my experience
that hostility and even in many instances hatred of the
parents one for another obscures their duty to consider as
a predominant matter the welfare of their children. Very
frequently within the ambit of a Guardianship of Infants
summons they really want to fight the marriage battle and
to use the child or children as a pawn or hostage in that
battle. It seems to me that the Solicitors should
consistently approach the instructions of their clients with
the danger of this occurring in view. They should in so far
as it is possible by their advice try and direct the minds of
the parents to this dominant question of the welfare of
their children and in their handling of the case should at
least maintain an unusual independence so as to be able to
indicate to a Court where in their judgment,
notwithstanding the express instructions of their clients,
the welfare of the children may lie.
It really comes to this therefore over and above the
obligation which in any action exists not to mislead a
Court nor to use sharp practice at the instance of a client,
there is in this form of proceedings under the
Guardianship of Infants Act a special duty sometimes to
do or omit something against the wishes of a client which
the welfare of the children may require.
External Witnesses
For much the same reasons, though at first sight
proceedings under the Guardianship of Infants Act 1964
arise peculiarly within the privacy and intimacy of the
family and one would think might have been solved there,
I would also recommend consideration in every case
where it is appropriate of the possibility of obtaining
assistance both to the Solicitor who is advising and
ultimately to the Court if the matter must go to Court,
from external or outside witnesses. Doctors, clergy, social
workers, disinterested relatives, if they are genuinely
disinterested, and even responsible family friends can
often throw a clearer light on the needs and requirements
of the children and of the real back-ground against which
their future welfare must be controlled than will the
parents engaged in the unfortunate matrimonial battle.
Inevitable Joinder of Actions
There is inevitably as a matter of practice in very many
cases a joinder of proceedings under the Guardianship of
Infants Act with other proceedings, usually proceedings
under the Family Law (Maintenance of Spouses and
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