A referendum to establish a new family court will be held next year, Minister for Justice Alan Shatter has said.
Speaking at a consultative seminar on family law courts at the Law Society in Dublin at the weekend, Mr Shatter said the Government had originally intended holding a referendum on a family court at the same time as the referendum to establish a court of appeal this autumn, but he was anxious to ensure a “broad consultative process”.
“The intention now is that the referendum to establish a new family court will be held in the course of 2014,” he said.
The proposed court would comprise two tiers, with the upper tier having unlimited jurisdiction. Both tiers would be staffed by specialist judges.
The lower court would deal with family law and childcare matters that are currently dealt with by the District Court, and might also deal with cases where there is consent and no dispute exists. The upper court would deal with cases currently seen at Circuit Court and High Court level.
Mr Shatter said he felt strongly that it was necessary to have specialist judges, expert in family law, presiding over family courts.
"I realise this for some is a controversial proposal but I feel strongly that it is a necessary measure," he said.
There were few who had experience of family law that would argue every party in a case “is always dealt with in a satisfactory and sensitive manner by all members of the judiciary”.
“Just because a person has been a solicitor or a member of the Bar in practice for the minimum 10 years required to be appointed a judge, it does not mean that he or she has necessarily amassed the insight, qualities and expertise necessary to deal with all cases,” he said.
A judge’s “temperament and common sense” were as crucial as “their fund of legal knowledge”.
The Minister said that ideally the family courts would be in entirely separate venues with related welfare, assessment and mediation facilities, but “in the current climate it may take some years to achieve”.
Also speaking at the conference, Gerard Durcan SC questioned the need for a referendum to set up a separate family court system. He cited an opinion from the Consultative Council of European Judges at the Council of Europe, which examined the risks involved in having specialist judges. These included that judges could become isolated, or view themselves as an elite group, and specialisation could be detrimental to the unity of the judiciary.
Muriel Walls, chairwoman of the Legal Aid Board, suggested that the four-year rule, which requires couples to be living apart for four years before they can obtain a divorce, should be reduced. It kept couples in the legal system for a minimum of five years, which was "far too long", she said.
Ms Walls also said the family law system in Ireland needed “more than tinkering around the edges” and was “not fit for purpose”. We could “wait for the shiny buildings”, she said, but not for “changes in the system”.
She also argued the law should be more accessible and the courts needed to “drop the Latin phrases”.
Mr Justice Michael White said he hoped any new family court system would be adequately resourced.
“There is no point setting up structures that will not have adequate financial resources available to them,” he said.
He also highlighted issues around access to legal aid. Delays in the processing of legal aid applications and waiting times for appointments posed “a substantial challenge to the family law courts”, he said.