Friday 22 November 2019

Roisin O'Shea: The alarm bells have been ringing for more than two decades on family court problems

Children’s views were not heard directly by the judge in any of the family law cases studied for the research. Picture posed. Thinkstock Images
Children’s views were not heard directly by the judge in any of the family law cases studied for the research. Picture posed. Thinkstock Images

Roisin O'Shea

I WANTED to carry out research that puts a spotlight on our family courts, warts and all, to shake out the dust and debris accumulated from over 200 years of custom and practice.

The aim of my project was to carry out a holistic review of the family law system in Ireland, by examining the Circuit Court, which hears approximately 98pc of all divorces and judicial separations.

It has been an interesting and, from time to time, a deeply distressing journey.

In this, the first substantial empirical family law research carried out in the Circuit Court, I have seen so much anger, frustration, fear and misery, for both men and women.

And it was very difficult at times to continue to observe and remain detached.

I was not alone: most of the judges interviewed indicated an intense dislike for the emotional context of family law cases, finding disputes over the arrangements for children to be extremely difficult – and sometimes distasteful.

I have gathered clear information, both qualitative and quantitative, on how our family courts actually operate; profiled those who attended at court; documented all aspects of the process; heard the opinions of judges; and quantified the outcomes.

I am grateful for the support and assistance of the judiciary, both in terms of a Canadian Irish Family Law conference I organised in 2010, and during my time observing cases in courts around the country.

While my thesis presumes knowledge of family law, little or no case law was actually argued in the courts, nor did the Constitution make its presence felt.

There was little complexity of law, the issues were uniform and a predictable range of human dynamics presented in almost every case.

Until now, we have been unable – due to a weakness in existing data – to give meaningful answers to questions regarding the quality of the Irish family justice system.

This includes details about litigants and their circumstances, as well as the timing, costs and true outcomes of cases.

Records to date comprise of elementary statistics compiled in an Annual Report by the Courts Service, and reported judgments from the Superior Courts.

The Courts Service Pilot Project in 2006-2007, co-ordinated by Dr Carol Coulter, was a starting point for my research.

Dr Coulter's pilot project found that there was a need for the development of a statistics gathering system.

My project has addressed that need and provides a good indicator of what is happening across all cases dealt with by the relevant family law circuits, eight in all, between October 2008 and February 2012.

Funded by the Irish Research Council, it uses a purpose-built database, including 187 anonymised family law case reports.

Significantly, this research found that the poorest outcomes were for men who were lay litigants (represented themselves), followed by non- national lay litigants.

It found that 22pc of all litigants had no legal representation and the formality and age-old traditions operated by the courts creates an uncomfortable and often incomprehensible forum for them.

In no case were the views of any child heard directly by a judge. The children's views were often expressed through the primary carer (mostly the mother) or through court-ordered experts where there were allegations of abuse.

I practised as a family mediator throughout my research, and was shocked by the incredibly small uptake of mediation, just eight cases, as an alternative to litigation.

Mediation was misunderstood as a reconciliation process, and some mediated agreements were criticised by judges as being poorly written and incapable of legal enforcement.

These extensive findings support the need to establish a designated family court and ancillary services. Evidence-based reform is really necessary, and now that I understand the injustices of the Irish family law system, I, like many others in this arena, am fully committed to improving its outcomes.

Justice Minister Alan Shatter noted that alarm bells started to ring in the 1985 Report of the Joint Oireachtas Committee on Marriage Breakdown, which highlighted the difficulties experienced due to the onerous demands placed on the courts.

Those bells are still ringing.

Mr Shatter has already taken significant steps towards reform, the most far-reaching of which is his proposal to facilitate the development of a dedicated and integrated Family Court structure.

We must now go beyond the traditional role of the court and develop a family justice system that effectively and meaningfully contributes to the cost-effective and timely resolution of family disputes.

Going to court should be the option of last resort for those who are separating, not the port of first call.

ROISIN O'SHEA DIP, BA HONS (LAW) WAS A DOCTORAL SCHOLAR, THE IRISH RESEARCH COUNCIL 2009-2012, AND IN 2010 WAS JOINT WINNER OF THE 'IRISH INDEPENDENT'/HIGHER EDUCATION AUTHORITY (HEA) MAKING AN IMPACT COMPETITION FOR POST-GRADUATE RESEARCHERS.

Irish Independent

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