A proposal in the new Family Courts Bill to move divorce and separation cases with a land value of up to €1 million to overburdened District Courts will create a two-tier legal system and is not in the best interests of families, lawyers have said.
A huge caseload means District Courts have not enough time to deal with the family and childcare cases already in their lists and the proposal will increase hearing delays, more than nine in 10 family lawyers said in response to a Family Lawyers Association of Ireland (FLAI) survey.
More than 90 per cent of 241 respondents said the District Courts lack appropriate physical facilities, including consultation rooms, for existing family cases, particularly those involving domestic violence. One respondent referred to excrement being thrown and someone “punched” in the busy family court complex in Dublin’s Dolphin House.
Speaking at the publication of the report on Wednesday, Sandra McAleer, a solicitor, said Dolphin House is “not fit for purpose”, four gardaí are based there due to incidents and the Minister for Justice “should go in there and see what we have to deal with”.
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She said judges sit up to 8pm trying to get cases finished, while delays in getting reports on the voice of the child – section 32 reports required under legislation – can mean cases extend for up to two years.
Adding another 6,000 divorce/separation cases annually to the District Court workload amounts to “abuse of children”, she said.
Retired District Court judge Dermot Simms said he believed district judges do not have the necessary understanding of company and trust law to deal with divorce/separation cases as proposed in the Bill. For the Bill to work in the District Court, the necessary resources would have to be provided, he said.
Organised by The Bar of Ireland as part of a campaign against the proposal to move divorce/separation cases with a land value, including the family home, up to €1 million from the Circuit to the District Court, the legal “summit” was addressed by Bar Council chair Sara Phelan SC, Paul McCarthy SC, chair of the FLAI, family solicitor Keith Walsh SC, and barrister Caroline Counihan, legal adviser to Safe Ireland.
Presenting the survey, Mr McCarthy noted more than 90 per cent of respondents said the District Court was not an appropriate venue for hearing cases concerning judicial separation, divorce or cohabitation because that would negatively impact on litigants’ overall experience of the family justice system and the best interests of the family unit.
Some 86 per cent said it would lengthen proceedings and 44 per cent considered it would have a negative costs impact.
Noting many divorce/separation cases settle and are ruled on within 15 minutes in the Circuit Court, Mr McCarthy said a consent settlement is often the end result of an unseen “lengthy and considered” process.
The Circuit Court has the necessary architecture for such cases, including case management, he said. The Circuit Court system could be improved including by providing better judicial resources, support staff, digitalisation of some processes and additional resources for section 32 reports.
No other €1 million dispute goes to the District Court but, in most families, the single biggest thing they will row about is the family home and that will go to the District Court under the proposal, he said.
Some argue the proposal will reduce legal costs and the opposition to it involved “protectionism” by lawyers but that was not borne out by analysis, he said. Inefficient systems drive up costs rather than drive them down, he said.
Ms Phelan said she welcomed that the Department of Justice has asked to meet lawyers about the concerns raised.
Ms Counihan welcomed some “great things” in the Bill, including the proposed dedicated family courts system, but expressed concern that moving divorce/separation cases to the District Courts would increase delays for survivors of domestic violence in having their cases heard.
Owen O’Connor, a solicitor based in Naas, said he no longer does family law in the District Court because he simply cannot get cases heard there due to the volume of other cases. That is not the fault of the judges, it is “just not possible”, he said.
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