Courts and Civil Law Bill 2013

-   Alan Farrell TD

I would like to thank the Minister for bringing this Bill before the House.

 

This legislation aims to make two very important changes in our legal system. First of all, it sets out to achieve transparency of family law practices by abolishing the ‘in camera’ rule, and secondly, to achieve efficiency and affordability within our courts service.

 

For many years, experts and family rights groups have been advocating for the abolition of the ‘in camera’ rule, citing it as a reason for the lack of confidence, transparency and mistrust in our family law system.  

 

While it is a constitutional requirement that justice is administered in public, there is no question that the existence of the ‘in camera’ rule has served a real and significant purpose for individuals who have found themselves in family law proceedings.    

 

Ironically, its purpose may be more relevant now than ever before.   The right to privacy during proceedings that are by nature very personal and sensitive is something that we as law makers cannot take for granted, particularly in the world in which we currently live.   As a society, we have barely come to terms with the pace and tone of online communication, not to mention the irreparable damage that a loss of anonymity can do to an individual, particularly children.  

 

In theory, transparency and justice are intrinsically linked, as our justice system is our ultimate instrument of accountability.   In reality, cases of family law are personal, sensitive and often psychologically damaging to individuals involved, including children.  

 

The ‘in camera’ rule was derived from the principle that some proceedings were so sensitive that it served the public interest to protect its confidentiality.   While I fully accept the flaws that it has masked in the family law system, I welcome the restrictions on reporting and press that are being set in its place, such as the creation of a robust system of intolerance toward any reporting that may identify litigants.   Some have criticised the strength of restriction measures for the press, stating it will act as a deterrent for reporters.   I however believe first and foremost that creating a deterrent for individuals to seek justice on family matters for fear of identification and humiliation is by all means a more damaging concept. This is   a concern that has also been raised by the Children’s Ombudsman, who has reiterated in her contribution to this debate that ‘The rights to privacy is a fundamental consideration in this regard and non-identification must be guaranteed.’

 

I believe that best practice for the reporting of family law cases would involve the establishment of a panel of journalists who would be allowed access all family law proceedings, similar to the system that functions within the Houses of the Oireachtas.   This strategy would ensure that members of the press with sufficient expertise and respect for the court will be appointed by their publications, allowed to access and to report on proceedings, and develop a culture of trust between the press, the legal profession, and their clients.   I would also welcome a move by the courts themselves and agencies such as the Central Statistics Office to play a part in communicating family law practices through the publication of reports and statistics that could be made available through websites and public libraries.     This would be particularly useful as we approach the referendum to establish a new family court which the Minister recently announced his intention to hold in 2014.

 

This referendum will set in motion a radical overhaul of the family justice system. Set out in the Programme for Government in 2011, this proposal has received government approval for the purpose of establishing a distinct and separate system of family courts, streamlining family court processes, making them more efficient and less costly.

 

Last week I attended a Family Law seminar and heard some very worthwhile contributions from stakeholders and international experts in this field.   While all contributors bore in mind the impact that the ‘in camera’ rule has had on transparency within family law,   their own professional experiences, as well as evidence derived from the Law Reform Commission in 1996, and the Family Law Matters report in 2007 all make a very compelling case for urgent reform.

 

Highlighted in these reports, and during the seminar, were the mutual and serious factors that make the system so difficult and traumatic for litigants. Emphasis was placed on the significant inadequacy of expertise of family law within the courts, inconsistency of judges when it came to dealing with the same case, lack of information, inadequate dispute resolution, waiting times, pressure on staff to help with litigant’s paperwork, and the legal environment itself which has proved itself to be an inappropriate place for cases of such a sensitive nature.      

 

For example, one speaker, Muriel Walls, Chair of the Legal Aid Board, described a conversation with a client about how she would draft a bills, an affidavit, a notices of motion for her case etc, and how her client had no idea what she was even talking about. From this simple example we can understand the frustration and confusion that litigants face when entering this system.   Another issue highlighted in the report was that many litigants are left with no choice but to represent themselves, if they are unable to access legal aid or afford representation.   For these reasons, I would very much welcome a shift towards minimal legal jargon and access to information within the family courts in order to make the system as user friendly, and user focussed as possible.

 

Another point made by the Minister that I welcomed was his considerations regarding training for family law professionals and its impact on inconsistency of rulings.     At present, there is no specific training for the legal profession in the area of family law, and bearing in mind the evidence that we see from these reports of expertise in family law being thin on the ground, I very much hope that this will make up part of the plan going forward.

 

In summary, I believe it is essential that Family Law practice is removed from the general court system and that a dedicated family court system will be instrumental in developing the required expertise for family law practice.  

 

There are a variety of measures in this Bill that deal directly with the distribution of cases between the High Court, The Circuit Court and the District Court, and interim measures introduced to tackle delays in the Supreme Court.

 

The clear objective to amending the jurisdiction limits for the Circuit Court and the District Court is to minimise legal costs for the public, including small businesses, to access the courts and also to address the long overdue requirement for an increase in jurisdiction levels to reduce unnecessary burdening of the High Court as a result.    

 

Monetary limits of the District and Circuit Court have remained unchanged since 1991, over 20 years ago. At this stage, with levels for the Circuit Court are currently just over €38,000, and the District Court only at €6,384,   it is forcing modest civil matters into the High Court, increasing costs for litigants and wasting the resources of the High Court itself.          

 

If the average cost of a case increases by 30% if brought to the High Court, it is in the financial interest of the individual, more likely a middle income business person or member of the public, to remain within the remit of the Circuit Court to retain more reasonable costs when making modest claims. This is a sensible measure, and will also in time remove the potential for further appeals to be made to the Supreme Court, where we are aware are dealing with delays of up to four years.     I acknowledge the concern on the impact that this will have on the District Court as these changes are implemented, and I would strongly urge the Minister to continue to engage and monitor this process in order to ensure that progress is made successfully.          

 

It is my opinion however that reform of the Supreme Court system is and must remain a priority for this Government.   As I have mentioned, the average waiting period for a case to be brought before the Supreme Court is currently 4 years.   This is unfair to those who are waiting, it is an obstruction to justice, and in addition unsustainable for the staff and personnel who are working within the system.  

 

As we are aware, Chief Justice Susan Denham has already called to a halt to any further appointment of priority cases to the Supreme Court, which is now at 70 cases.   This is a crisis for the justice system, and requires a multi-faceted and robust approach, which I believe this Government has begun to undertake.   The appointment of two additional Supreme Court Judges to tackle this delay is essential as an interim measure, bringing the total number of Supreme Court Judges to 10.   However it is the referendum to establish a Court of Appeal, due to take place in September of this year, which will allow for real reform of the entire appeal system.  

 

Under this establishment, appeals will no longer be under the remit of the Supreme Court. Instead, a dedicated court will be established with the function to deal with appeals within reasonable time periods, with frequent sittings, covering civil and criminal matters.   This reform will begin with the amendment to the Constitution. I believe will be in the interest of the justice system as a whole for this change to take place and I hope that this will be supported by the public.  

 

In conclusion I would like to acknowledging the many reforms being introduced within the Irish justice system, undertaken by this government, namely the Legal Services Bill, the Personal Insolvency Legislation, two planned referenda to establish two new courts, and the variety of significant changes proposed in this Bill that will increase affordability and access to justice of the courts system, and will improve transparency of our family law system.   I commend the Minister and his Department’s work thus far and hope that we reform is something that we will see during the lifetime of this government.

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