Reimagining the Family Court

System

Gerard Durcan SC

Seminar on Family Law Courts

06/07/2013 1

Reimagining the Family Court SystemReimagining the Family Court SystemThe Constitutional ContextThe Constitutional Context

� The structure of the Courts is dealt with in Article 34 of the Constitution.

� Art. 34.1 requires that justice shall be administered in courts established by law.

� Art. 34.2 provides that the courts shall comprise Courts of First Instance and a Court of Final Appeal.

� Art. 34.3.1 provides that the Courts of First Instance shall include a High Court.

� Art. 34.3.1 also requires that the High Court be invested with full original jurisdiction to determine all judiciable matters.

� Art. 34.3.4 provides that the Courts of First Instance shall include Courts of local and limited jurisdiction with a right of appeal determined by law.

Seminar on Family Law Courts

06/07/2013 2

Reimagining the Family Court SystemReimagining the Family Court SystemThe Constitutional ContextThe Constitutional Context

� Art. 34 therefore requires that there must be a High Court with full original jurisdiction.

� It also requires that there be Courts of local and limited jurisdiction. However Art. 34.3.4 does not confine Courts of First Instance to the High Court and Courts of local and limited jurisdiction.

� The Oireachtas is free to set up as many courts of first instance as it sees fit – The State (Boyle) v. Neylon [1986] I.R. 551 per Walsh J. at p. 555.

� The power of the Oireachtas to establish Courts of First Instance which are not Courts of local and limited jurisdiction was re-affirmed by the Supreme Court in The People (DPP) v. M.S. [2003] 1 I.R. 606 per Keane C.J. at p.618.

� In Tormey v. Ireland [1985] I.R. 283 the Supreme Court held that it was valid to vestjurisdiction in certain matters in Courts of local and limited jurisdiction to the exclusion of the High Court.

� Having regard to these principles it would seem likely that the reorganisation of the Courts dealing with family and child law can be achieved without change to the Constitution.

Seminar on Family Law Courts

06/07/2013 3

Reimagining the Family Court SystemReimagining the Family Court SystemThe Legislative Context The Legislative Context –– Family Law and Child Care LawFamily Law and Child Care Law

� The Courts (Establishment and Constitution) Act 1961 established the High Court, the Circuit Court and the District Court.

� The High Court and the Circuit Court have concurrent jurisdiction in regard to applications for divorce, judicial separation and orders by way of ancillary relief.

� There is an appeal by way of a full re-hearing from the Circuit Court at first instance to the High Court. There is an appeal, in essence on a point of law from the High Court at first instance to the Supreme Court.

� Adoption and child abduction matters are heard in the High Court with a right of appeal to the Supreme Court.

� Applications to detain a child in a secure unit are determined by the High Court under its inherent jurisdiction. There is a right of appeal to the Supreme Court.

Seminar on Family Law Courts

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Reimagining the Family Court SystemReimagining the Family Court SystemThe Legislative Context The Legislative Context –– Family Law and Child Care LawFamily Law and Child Care Law

� Jurisdiction in regard to stand alone guardianship, custody, access or maintenance applications is vested in the District Court and the Circuit Court.

� Where a case is determined at first instance in the District Court there is a right of appeal by way of re-hearing in the Circuit Court.

� Where it is determined at first instance in the Circuit Court there is a right of appeal by way of re-hearing to the High Court.

� Child care cases under the Child Care Act 1991 are heard in the District Court and there is a right of appeal by way of re-hearing to the Circuit Court.

� An application for a declaration of parentage is heard in the Circuit Court with a right of appeal by way of re-hearing in the High Court.

Seminar on Family Law Courts

06/07/2013 5

Reimagining the Family Court SystemReimagining the Family Court SystemLegislative Context Legislative Context -- ProcedureProcedure

� The Circuit Court when hearing family proceedings is known as the

Circuit Family Court - s.31 of the Judicial Separation and Family Law

Reform Act, 1989.

� The Circuit Family Court shall sit in a different place or at different

times or on different days from the ordinary sittings of the Circuit

Court – s.32 of the 1989 Act.

� Neither judges, barristers or solicitors in the Circuit Family Court

shall wear wigs or gowns – s.33 (2) of the 1989 Act.

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Reimagining the Family Court SystemReimagining the Family Court SystemLegislative Context Legislative Context -- ProcedureProcedure

� Proceedings in the Circuit Family Court shall be as informal as is practicable and consistent with the administration of justice – s.33 (1) of the 1989 Act.

� Likewise neither judges, barristers or solicitors in family proceedings in the High Court shall wear wigs or gowns – s.33 (4) of the 1989 Act.

� Such family proceedings in the High Court shall be heard in as informal a manner as is practicable and consistent with the administration of justice.

� Similar requirements apply to the District Court, and on appeal to the Circuit Court, when hearing child care cases or cases concerningmaintenance, guardianship, custody or access.

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06/07/2013 7

Reimagining the Family Court SystemReimagining the Family Court SystemOverview of present legislative arrangements Overview of present legislative arrangements -- JurisdictionJurisdiction

� There would appear to be a lack of coherence in the rules as to which court will have power to determine a particular type of application.

� Some cases must be commenced in the District Court e.g. child care.

� In some cases there is a discretion whether to commence in the District Court or the Circuit Court e.g. guardianship or custody.

� In other cases there is a discretion whether to commence in the Circuit Court or High Court e.g. judicial separation or divorce.

� Some cases must be commenced in the High Court e.g. applications in relation to adoption, child abductions or secure care.

� There doesn’t appear to be a great deal of logic as to why particular types of cases can or must be commenced in different courts in the system.

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06/07/2013 8

Reimagining the Family Court SystemReimagining the Family Court SystemOverview of present legislative arrangements Overview of present legislative arrangements -- AppealsAppeals

� In Dublin a Circuit Court family case is likely to be heard by a Judge

who has experience in the area.

� Equally a family law appeal to the High Court in Dublin is likely to be

heard by an experienced family law Judge.

� A Judge hearing a family case at first instance on Circuit is likely to

have some experience in hearing such cases.

� However a Judge hearing a family appeal on Circuit may well have

little or no experience in such cases.

Seminar on Family Law Courts

06/07/2013 9

Reimagining the Family Court SystemReimagining the Family Court SystemThe Present System The Present System -- StrengthsStrengths

� Independence: Judges provide an independent and unbiased

hearing and determination of a case.

� Learning: In general Judges have a reasonable grasp and

knowledge of the law in regard to child and family cases.

� Fact Finding: The adversarial system is usually good at resolving

issues of fact.

� Resolution: A judicial determination normally brings an end to a

family dispute and relatively few cases prove intractable.

Seminar on Family Law Courts

06/07/2013 10

Reimagining the Family Court SystemReimagining the Family Court SystemThe Present System The Present System -- WeaknessesWeaknesses

� Uncertainty: There can be a considerable difference in approach and outcome depending on the Judge who hears the case.

� Lack of Predictability: It is difficult to predict the outcome of a case which can make it more difficult to arrive at a settlement.

� Delay: The system is slow, and in some cases very slow in reaching a final determination of a case.

� Distress: Many litigants find involvement in family or child care cases tobe both stressful and upsetting.

� Cost: Family Cases can be costly, in some cases very costly.

� Lack of Openness and Transparency: The fact that cases are heard in private leads to a lack of transparency in regard to the operation of the family and child care courts.

Seminar on Family Law Courts

06/07/2013 11

Reimagining the Family Court SystemReimagining the Family Court SystemPublic Law and Private LawPublic Law and Private Law

� A particular problem is the absence of expert evidence in private law

cases involving children.

� In public law cases under the Child Care Act 1991 a Court is likely to

have the benefit of the views of social workers and a guardian ad

litem for the child.

� In contrast a Court in dealing with a private law case concerning

children may have no access to expert evidence.

� Equally it may have no means of ascertaining the views of children.

� These problems will have to be addressed if and when Article 42A of

the Constitution comes into effect.

Seminar on Family Law Courts

06/07/2013 12

Reimagining the Family Court SystemReimagining the Family Court SystemSpecialised CourtsSpecialised Courts

� The contemplated changes involve consideration of the desirability

of specialisation in regard to family law.

� There are advantages and disadvantages to specialisation in the

Court system.

� These are analysed in Opinion number 15 of the Consultative

Council of European Judges. The Council is an advisory body of the

Council of Europe.

� It is made up of Judges from the 47 countries who are members of

the Council of Europe.

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– Specialisation of JudgesSpecialisation of Judges

� Opinion 15 was compiled following significant preliminary

investigations and enquiries.

� Questionnaires in regard to the extent of specialisation in the Courts

were issued to all Member States.

� 30 replies were received.

� The Opinion is therefore based on a significant and diverse body of

information and knowledge.

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 -- Replies to Questionnaires in regard to Replies to Questionnaires in regard to

SpecialisationSpecialisation

� There were replies from 30 countries.

� 21 countries indicated they had some kind of specialised family court.

� 9 countries indicated they had no specialised family court.

� Of the 21 countries, 17 indicated their family court/judges operated within a generalist court.

� Of these 17 countries, 11 had special rules of evidence or procedure in respect of family cases, while 6 did not.

� 4 countries had a family court which did not operate within a generalist system.

� Of these 4, 3 had special rules of evidence or procedure in family cases, while 1 did not.

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06/07/2013 15

Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– The Strengths of Specialised Courts or JudgesThe Strengths of Specialised Courts or Judges

� An in-depth knowledge of a particular legal field can improve the quality of the decisions made.

� Greater expertise in a particular area can enhance the Court’s authority.

� Concentrating cases in a particular area in the hands of a select group of specialist Judges can be conducive to consistency in judicial decisions.

� Such consistency in decisions can promote legal certainty.

� Specialisation can help Judges who repeatedly deal with similar cases to gain a better reality of such cases both at social and economic levels.

� A better understanding can help to identify solutions better suited to those realities.

� Specialisation may help to improve a Court’s efficiency and case management.

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– Possible limits and dangers of SpecialisationPossible limits and dangers of Specialisation

� The main risk in specialisation is the possible separation of specialist

Judges from the general body of Judges.

� Specialisation may cause Judges to reproduce previous decisions

which can hamper the evolution of case law.

� This is a particular danger where cases in a specific field are always

taken by the same select group of Judges.

� Specialisation can lead to compartmentalisation of the law and

procedures.

� Specialist Judges can become cut off from legal realities in other

fields.

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– Possible limits and dangers of SpecialisationPossible limits and dangers of Specialisation

� They can also become isolated from general principles and

fundamental rights.

� Specialist Judges can view themselves as being in an elite group.

� A specialist Court can give the impression of excessive proximity

between Judges and Lawyers who practice in that Court. Such an

impression can tarnish the image of judicial independence and

impartiality and expose Judges to a real risk of secret influence.

� Specialisation can lead to concentration of the speciality within a

single Court for the whole country or one national region. This may

hamper access to Courts and create too great a distance between

the Judge and the litigant.

Seminar on Family Law Courts

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– Conclusions of the Consultative CouncilConclusions of the Consultative Council

� All Judges whether generalist or specialist must be expert in the art

of judging.

� The predominant role in judicial adjudication should be by generalist

Judges.

� Specialist Judges should only be introduced when necessary

because of the complexity or specificity of the law or facts and

therefore for the proper administration of justice.

� Specialist Judges and Courts should always remain a part of a

single judicial body.

Seminar on Family Law Courts

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Reimagining the Family Court SystemReimagining the Family Court SystemOpinion 15 Opinion 15 –– Conclusions of the Consultative CouncilConclusions of the Consultative Council

� Specialist and generalist Judges must meet the requirements of

independence and impartiality set out in Article 6 of the European

Convention on Human Rights.

� Mobility and flexibility on the part of Judges will often be sufficient to

meet the needs for specialisation.

� Rather than having non jurist assessors sitting with a specialised

Judge it is preferable that experts be appointed by the Court or the

parties whose opinions are subject to challenges and submissions

by the parties.

Seminar on Family Law Courts

06/07/2013 20

Reimagining the Family Court SystemReimagining the Family Court SystemPrest v. Petrodel Resources Limited Prest v. Petrodel Resources Limited [2001] 3 WLR 1[2001] 3 WLR 1

� This case concerned the practice of the Family Division to treat the assets of a company substantially owed by a party as available for distribution by way of ancillary relief in divorce proceedings.

� In the Court of Appeal one of the two Chancery Judges described the practice as amounting “almost to a separate system of legal rules unaffected by the relevant principles of English property and company law”.

� He made clear that the practice “must now cease”.

� In a very recent judgment (12th June 2013) the Supreme Court held that “to authorise the appropriation of the company’s assets to satisfy a personal liability of its shareholder to his wife” would be an “even more remarkable break with principle”.

� The case is an interesting example of a specialist court, the Family Division, consistently applying a set of rules in its specialist area which were inconsistent with the relevant principles of property and company law.

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