The Family Courts Bill 2022 (“the Bill”) is currently before Seanad Eireann Third Stage. The Bill provides for the establishment of a Family High Court, Family Circuit Court and Family District Court as divisions within the existing Court structures as part of a proposed major reform of the family law service generally. The stated aim is the development of a more efficient and user-friendly Family Court system. It hopes to achieve a system that puts families at the centre of its activities, facilitate access to specialist supports and encourages the use of appropriate dispute resolution in family law proceedings.

Main changes

The main changes proposed to be introduced include:

• Introducing a Family High Court, a Family Circuit Court and a Family District Court, each dealing with family law matters as appropriate to its jurisdiction.
• Judges will be assigned on a full-time basis to the Family Court divisions. These will be judges who, by reason of their training or experience, are suitable to deal with matters of family law. Ongoing professional training in family law will be required.
• Proceedings will be held in a different building or room from which other Court sittings are held or on different days or at different times from other Court sittings.
• Proposed re-organisation of jurisdiction to allow for the hearing of most of the judicial separation and divorce cases to be heard and disposed of in the Family District Court as opposed to the Circuit Court as it currently stands.

Under the Bill, the Courts, legal practitioners and parties to family law proceedings will be required to have regard to certain guiding principles. The key principles include:

• The best interests of every child involved or likely to be affected by the outcome of family law proceedings shall be a primary consideration in the conduct of the proceedings.
• The child’s views should be ascertained, where practicable, and given due weight, having regard to the child’s age and maturity.
• The promotion and engagement by the Court in active case management practices.
• The Court should encourage and facilitate, as far as possible, alternative dispute resolution, such as mediation - except in cases where this would not be appropriate, such as domestic violence cases.

The aim is that the legislation will enable a greater proportion of non-contentious family law matters to be dealt with at District Court level with the core justification being to minimise the costs for litigants.

The general purpose of the Bill marks an important milestone in efforts to reform the Irish Family Courts system. Most of the proposed changes will assist litigants and the guiding principles, specialist judges, specialist Courts, dedicated Court rules and proposed new Court buildings are all long overdue. However key stakeholders in the practice of family law such as the Law Society of Ireland, the Bar Council of Ireland, the Family Lawyers Association and various prominent family lawyers have identified some major concerns in the Bill in its current format.

Concerns

1. Jurisdictional issue

By far the most concerning from a practitioner's point of view is the proposal to move divorce, judicial separation and cohabitation cases from the Circuit Court to the District Family Court by increasing the jurisdiction of the District Court.

Currently, the monetary jurisdiction of the District Court is €15,000, the monetary jurisdiction of the Circuit Court in family law matters is €3 million and the monetary jurisdiction of the High Court is family law matters over €3 million. The Bill proposes to have the District Court deal with divorce, judicial separation and other cases where the value of the land at issue is less €1 million. This would mean that the jurisdiction of the Circuit Court would be significantly reduced and limited to family law matters with a monetary value of between €1 million and €3 million.

The District Court is a Court of summary jurisdiction and is designed to process high-volume, minor offence matters. The onus and management of the Court's workload falls solely on the Judge with the assistance of their clerk. The Circuit Court on the other hand has various procedural safeguards and administrative support systems already available in respect of judicial separation and divorce.

Cases involving judicial separation and divorce in the Circuit Court, when contested, rarely take less than two hours or half a day. Many cases take one day and some other cases take two or more days to complete. Most divorce and judicial separation matters give rise to challenging and complex legal and factual scenarios. If the parties have not been able to resolve their issues, as well as addressing the breakdown of the relationship, the Court has to untangle economic and welfare interests and adjudicate on what is in the best interest of any dependent children. Where there is a dispute and competing claims, the Court process must ensure that all relevant evidence is before it and is property tested. Parties emerging from marital breakdown deserve to be heard carefully and have their issues analysed forensically and this is a process that takes Court time. There is therefore significant potential for judicial separation and divorce cases to take up most of a District Court Judge’s Court day to the detriment of other cases. If divorce and judicial separation cases are moved to the District Court, this will likely result in significantly less time being available for other family law cases including domestic violence, guardianship, custody, access, maintenance cases, all of which will create further delays.

It is also important to note that while many divorce and judicial separation cases taken in the Circuit Court may be finalised on consent and therefore listed in the Court Services data as a non-contested case, there is likely to have been months and months of very hard work undertaken by very experienced legal teams to reach that point of agreement. The Circuit Court allows for that time and allows people the space to attempt to reach their own settlement. This space is vital for people who are trying to decide how the rest of their lives will play out. It is likely that the District Court simply will not have the luxury of affording people that time.

2. The District Court - A & E of the justice system

The District Court is already overworked and under-resourced. The latest Court Service figures show the following numbers of family law cases were started in the District Court 2022:

• Guardianship, custody, access — 10,822
• Maintenance — 5,862
• Domestic Violence — 23,536
• Childcare — 14,985
• 55,205 in total

These figures are totally separate and apart from all of the other matters brought before the District Court. In 2022, there were a total of 76,193 and a total of 338,825 criminal cases processed in the District Court. There were a total of 6,305 divorce and judicial separation cases processed in the Circuit Court. The movement of these divorce and judicial separation cases to the District Court will have a very significant negative impact on the time available for other family law cases and may even displace existing family law cases causing further significant delays for family litigants and reducing the quality of service for all litigants.

3. Two-tier system

The Bar Council has warned that the movement will create a “two-tier” system. The consequence of the proposed jurisdiction may mean that families in a particular socio-economic class, with land valued at more than €1 million, will benefit from more in-depth consideration of their cases in the Circuit Family Court than those with land valued at less than €1 million heard summarily at District Court level. This may be despite the fact that their cases may be similar or more straightforward as the cases directed towards the District Court.

4. Court infrastructure

The infrastructure of the District Court is unsuitable for the conduct of divorce and judicial separation cases. The Circuit Court deals with lengthy trials on a regular basis. It has developed the administrative infrastructure to deal with these cases which, like judicial separation and divorce, may involve interlocutory applications such as applications for maintenance, directions with regard to access, custody, domestic violence, applications to appoint child assessors and orders to freeze monies which are injunction type orders. The management of these cases requires a quasi-judicial Court official called a County Registrar to deal with the volume and case management of these cases and also in the case of family law to deal with additional mini-hearings called Case Progression hearings. The volume of family law work in the Circuit Court for the County Registrar and the administration and management involved is significant. The District Court has no history of dealing with longer trials nor has it the benefit of having a County Registrar. The Family Courts Bill does not provide for the appointment of such an official nor does it provide any administrative support system for dealing with the complexity of cases such as judicial separation and divorce.

A further concern is that if the reforms are dependent on new Court facilities being provided to house the new family Courts, the reform will be further delayed. For those of us practicing in divorce and judicial separation in the Circuit Court in Cork, we already have the benefit of a separate Court building on Washington Street which tends to deal mainly with civil and family matters. This building has consultation rooms for clients which provides an element of privacy for those navigating this difficult time in their lives. If, however divorce and judicial separation cases are transferred to the District Court, the parties involved may not be quite so lucky. The Courthouses throughout Cork County, while hugely important for our communities and regular District Court business, they are not at all appropriate settings for complex matters such as separation and divorce.

5. Reduction of costs

If the stated rationale for the movement to the District Court is to reduce legal costs for parties, then I believe that it is misplaced. Legal costs are generally calculated in respect of the time involved and the complexity of the issues. These won’t change and the costs to litigants will not be reduced by simply reassigning cases to the District Court. Parties in this situation want to have their cases heard properly and to be treated fairly. Adding thousands of cases – many of which have a high degree of complexity – to the busy District Court, will just add time and cost to the process as more Court frequent hearings will be required.

If the objectives of the change are to reduce legal costs and to make the system of divorce and judicial separation more efficient, then this can be achieved without a change in the jurisdictions. It has been submitted that the reduction of legal costs and making the system more efficient could be achieved first of all by changing existing practice and procedure in the Circuit Family Court. This can be done by introducing more emphasis on cost penalties for those who delay cases, further incentivising ADR and early resolution and ensuring earlier judicial involvement. The current system of Court pleadings could be overhauled as could the Case Progression system. Almost all of these changes could be made within the current system with less cost and far greater effectiveness than transferring divorce and judicial separation cases from the Circuit Court to the District Court.

While the proposed transfer of divorce and judicial separation proceedings from the Circuit Court to the District Court may have the best of intentions, in practice it is likely to result in significant delays for all litigants in the District Court, gridlock for judicial separation and divorce applicants and result in a system that currently is in need of overhaul being replaced with a system that does not function.

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

March 2024 Wolfe & Co. LLP Solicitors