Family law should not exist in a cocoon isolated from general legal principles

Opinion: Judges might be seconded to specialist courts for a restricted period of time

Thu, Aug 8, 2013, 00:01

The Minister for Justice has embarked on an ambitious programme of reform of family law, an area neglected by legislators for decades, leading to crowded court lists, lengthy delays and adjournments and rushed judgments. On top of this, because all cases are heard in camera, no information can be published on what happens in these courts, adding to the stress and uncertainty of those who use them, and inhibiting informed debate on necessary changes to the family law system.

The two main pillars of the proposed reforms are the recent legislation removing the in camera rule preventing media coverage of family law cases and a proposal to hold a referendum to establish a special two-tier family court to hear all family law cases.

Alan Shatter has just announced this will take place in 2014, paving the way for a separate family court stream. There is no doubt that litigants and children would greatly benefit from having their cases taken out of the general lists and dealt with separately by judges with the relevant experience and knowledge.

However, it is questionable whether a constitutional referendum is either necessary or desirable to achieve this aim.

At a conference on the matter held earlier this month by the Department of Justice, leading constitutional and family lawyer Gerry Durcan SC pointed out the existing Constitution and law, bolstered by case law, already permit the establishment of additional courts for specific purposes.

He also questioned the wisdom of having an entirely separate specialist court, cut off from the general court system.


Compartmentalisation of law
There was a danger, he argued, that this could lead to a compartmentalisation of law and procedure, cut off from general principles and fundamental rights; it could give the impression of “excessive proximity” between the judges and the lawyers practising in this area and cut these courts off from legal realities in other fields.

He pointed to a recent judgment from the Supreme Court of England and Wales, which strongly criticised the practice of the family division of the High Court there of treating the assets of a company substantially owned by a party as available for distribution when the party’s marriage broke up. The Supreme Court ruled that this ran counter to the established principles of company and property law and “must cease”.

Many lawyers would endorse these concerns. The family courts are, understandably, very focused on solving the immediate problems of the people who come before them. Without regular exposure to other areas of law as they develop, it would be all too easy for judges to make decisions that fixed the problem before them but cut across fair procedures and fundamental rights.

It is particularly important that childcare law, due to be part of the new family court system, is not totally cut off from juvenile justice.

There is also the concern of sheer battle fatigue. Family cases are very draining for all concerned. Many judges, including those very dedicated to family law, express relief that they also get to hear crime and non-family civil matters, thus getting regular breaks from the stress.

The objective of having specialist family courts while ensuring that they are not cut off from the broader legal world would be met by designating certain court venues around the country for family law hearings and seconding judges to sit in them for a period of time, perhaps about two years.

This should be combined with appropriate judicial training as well as other services, like mediation, directly linked to the court.

Already in Dublin there are special courts designated full-time for family law with judges who sit in them for extended periods.

Such an approach has been endorsed by the Council of Europe, which carried out a survey of family court provision in all its member states. Of the 30 that replied, the majority had specialised family courts within a generalised system.

The Courts Bill, reforming the in camera rule, has just been passed by the Dáil. The question is this: will it achieve the transparency that is required?

At first glance, it appears to, as it removes the prohibition on the publication and broadcasting of family law proceedings in both private and public (childcare) law, subject to the absolute protection of the anonymity of the parties.


Raft of restrictions
But the entitlement to report is hedged in with so many qualifications and restrictions that the law may well be unworkable.

When combined with the stiff penalties for contravening any of these restrictions – up to a €50,000 fine and three years in jail – they are likely to deter all but the most intrepid journalists and media organisations from going near the family courts.

Either the court itself or any of the parties can seek the exclusion of the media or restrictions on what may be reported. Reasons can include whether their presence is likely to cause undue distress to any party to the proceedings or any child to which they relate because of their medical or emotional condition; whether any of the information is sensitive personal information, including that relating to the parties’ mental or physical condition or sexual orientation or conduct; and if any of the information is commercially sensitive, including relating to tax affairs.


Legal argument
This means that many contentious family law proceedings, the very ones that are likely to have any attraction for the media, could be preceded by legal argument about whether or not the media can attend and, if they do, what they can publish, before the proceedings begin at all.

It is also likely that those with means will contest media attendance, while those without will generally be unable to. It is hard to see how the media can provide comprehensive coverage of family law proceedings in these circumstances. Only time will tell.


Carol Coulter is former legal affairs editor of The Irish Times and director of the Child Care Law Reporting Project. She writes here in a personal capacity.

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