It is "a matter of urgency" that judges are able to obtain reports on the welfare of a child when dealing with marriage breakdown proceedings, High Court judge Mr Justice Michael White has said.
The judge, who deals with family law cases and is chairman of the Family Law Development Committee of the Courts Service, said such a facility is not available at all at District Court level other than under section 20 of the Childcare Act 1991 which he described as "unsuitable".
“Section 47 of the 1995 Act deals with Circuit and High Court and the costs of those reports can sometimes be prohibitively expensive,” he said in an address last week.
“We require as a matter of urgency ancillary services so that reports can be procured on any aspect of the welfare of a child if necessary without cost to the parties to the proceedings.”
He also warned that if the new family court structure, promised by Minister for Justice Alan Shatter, was going to be "starved of funds" it was not going to work "full stop". He rejected criticism of Irish family courts as having an "inbuilt bias" toward mothers and he highlighted problems with some lay litigants who "engage with the court process in a potentially abusive way".
Barnardos conference
Mr Justice White was speaking at a Barnardos conference in Dublin on prioritising children in family breakdown proceedings. A background paper on his presentation has been made available on the Barnardos website.
The rate of marital breakdown has increased in Ireland, up from 8.7 per cent in 2006 to just under 10 per cent in 2011. And the number of divorced people rose significantly to 87,770, up from 35,059 in 2006, while separation figures levelled off to more than 107,000.
Outlining the challenges facing family judges, Mr Justice White recommended that when family breakdown occurs there should be a mandatory obligation on solicitors to refer parties to alternative dispute resolution processes such as mediation before legal proceedings begin. He also said judges should be allowed to refer couples to resolution processes even after proceedings have initiated.
“Quite a high percentage of judicial separation and divorce cases are either settled on the day of the court hearing or very close to it, and it would be beneficial if that process were advanced to a much earlier stage in the proceedings,” he said.
Judges should also have an inquisitorial role at an early stage, chairing meetings between parties to advance earlier settlement.
Mr Justice White said the ability of the Courts Service to interact with other services was very important and it was also very important that judges and Courts Service staff had access “to expert opinion”.
All relevant services for family courts should be in one location, he added. And the courts building programme for county towns should be completed.
Inbuilt bias
Mr Justice White also rejected criticism that Irish family courts had an "inbuilt bias towards mothers".
“It is my experience that each case turns on its own set of facts and opinions.”
The judge also said lay litigants were becoming an “increasing challenge for Irish family courts”. They broke down into two categories, he said; those who could not afford legal advice or obtain legal aid and those who “choose for their own reasons to represent themselves”.
“There are a small core of personal litigants who pose a very difficult challenge for court administration and judges, who engage with the court process in a potentially abusive way by making repeated applications and not following court procedures,” he said.
“The challenge for judges is to handle this problem with respect for the rule of law, but also ensure that the time and resources of courts are used to good effect.”
