The Gazette 1977

DECEMBER1977

GAZE1TE

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 175