THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

FAMILY COURTS

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1994

First Published March 1994

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Anthony J. Hederman, former Judge of the Supreme Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Professor of Law and Jurisprudence, University of Dublin, Trinity College;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in Psychology, University of Dublin, Trinity College;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty five Reports containing proposals for the reform of the law. It has also published eleven Working Papers, seven Consultation Papers and Annual Reports. Details will be found on pp.223–227.

Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.

Ms. Nuala Egan, B.C.L., LL.M. (Lond.), Mr. Jonathan Newman, LL.B., LL.M. (Cantab.), and Ms. Lia O'Hegarty, B.C.L., LL.M. (Mich.) are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 671 5699.

Fax No: 671 5316.

INTRODUCTION

Background To The Commission's Work

1.

In its first programme¹ the Commission undertook to review a number of aspects of family law. The Reports already submitted, which concern or touch upon family law, are as follows:

These Reports have addressed for the most part areas of substantive law. This Consultation Paper is concerned with the judicial process and procedures through which the remedies in family law are pursued and delivered. The Commission's first programme stated:

The Commission considers that this represents the most important aspect of family law which it has not so far examined.

2.

The concept of a “Family Court” embraces a wide range of ideas about how and in what context proceedings which concern family matters should be conducted. The issues go beyond the courtroom itself and concern, for example, ancillary services and procedures for diverting from the courts cases which may be more appropriately handled through alternative channels such as mediation. The Commission decided that, before addressing the broad question of the possible establishment of a new family courts structure, it should try to identify and analyse separately the wide range of issues involved, and indeed to consider whether there are features special to family law cases which justify them being singled out for special treatment within the legal system.

3.

The areas which the Commission decided to address were as follows:

The Working Group

4.

In the initial phase of its work the Commission benefited from the advice and observations of a Working Group, chaired by Commissioners Gaffney and Duncan, comprising Judges and practising lawyers with considerable experience in matters of family law, viz.

Ms. Una Ni Raifeartaigh attended the meetings and provided research support.

5.

The Commission wishes to record its gratitude to the members of the working party for their generosity in giving of their time and for their expert advice. The views of the Working Party are mentioned at various points within the Consultation Paper. However, it would be unfair to attribute the views thus expressed to individual members of the Working Party. There was considerable debate over many of the issues, and what is recorded is the general sense and direction of these debates rather than agreed conclusions. Needless to say the members of the Working Party bear no responsibility for the provisional recommendations.

Previous Proposals On Family Courts

6.

Some of the separate issues surrounding the idea of a family court have been discussed in previous official reports. The various proposals for reform made in these reports are mentioned within separate chapters below. These reports include the Report (including the Supplementary Report) of the Task Force on child Care Services (1980), the Report of the Review Committee on

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Adoption Services (1984), the Report (Irish Women: Agenda for Practical Action) of the Working Party on Women's Affairs and Family Law Reform (1985), and the Report of the Joint Oireachtas Committee on Marriage Breakdown (1985). Most recently the Government has, in the Department of Justice paper, Marital Breakdown, A Review and Proposed Changes (1992), signalled its intention to consider further the issue of family courts.³

The Need For Reform

7.

There has in the last twenty years been a vast increase in family litigation. While this may be a reflection of an underlying problem of greater instability in family relations, its more direct progenitor has been a series of reforming measures. New or improved remedies were introduced during this period in the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act of the same year, the Family Law (Protection of Spouses and Children) Act, 1981, the Status of Children Act, 1987, and the Judicial Separation and Family Law Reform Act, 1989. The introduction of a scheme of legal aid in civil cases in 1980, which has since been employed mainly in family law cases, made the new remedies accessible to a wider public. This was followed by a radical restructuring in the jurisdiction of the courts, effected by the Courts Act, 1980, which reduced the involvement of the High Court and for the first time gave the Circuit Court a prominent jurisdiction in family matters.

8.

Between 1990 and 1992 the total number of applications involving family law business in the District Courts rose from 8,028 to 12,380, an increase of more than 50%.⁴ In the Circuit Court, in 1989/90, there were 1,059 applications in family matters, including applications under the Married Women's Status Act, 1957 and the Family Home Protection Act, 1976. During the first 15 months of the operation of the Judicial Separation and Family Law Reform Act, 1989, there were 916 applications made to the Circuit Family Court for decrees of Judicial Separation, together with various ancillary financial and property orders.⁵ In the Dublin Circuit Family Court alone the annual application rate for judicial separation is in excess of 400.

8.

The strains to which the increasing volume of business is giving rise within the courts system are referred to in Chapter 7. The intense pressure under which judges are often working in family law cases, together with the delays and other frustrations being experienced by litigants, provide in themselves a compelling case for reform.

9.

The introduction of new or improved family law remedies has taken place without sufficient regard for the need to prepare the courts for their additional burdens, to provide them with appropriate physical facilities, and to ensure the availability of essential support services. The issue of judicial studies

or training has not been addressed, courtroom facilities in parts of the country remain a disgrace, the probation and welfare service have the resources to provide only a limited service to the courts in child custody cases, mediation facilities remain thin on the ground, and the legal aid and advice service has suffered from chronic under-funding.

An Integrated Approach

10.

Not all of these matters are within the Commission's remit, and they raise issues of priorities in funding which are beyond the Commission's competence. However, it is necessary to bear in mind, when considering reform of the judicial system, that it does not operate in a vacuum. The solution to the present crisis cannot be found only in the appointment of additional judges or in the construction of new court rooms, though these are badly needed. The background required for an effective and sensitive family courts system includes, in addition,

While the Commission has remained conscious of the limits of its brief, which is to formulate proposals for “law reform”, it has tried to adopt an integrated approach, maintaining an awareness of this broader context within which a system of family courts operates.

Justice And Welfare

11.

It is sometimes suggested that our traditional adversary mode of trial is unsuitable for the resolution of family disputes. Two different types of reason are given. Its confrontational character, it is said, may generate further bitterness

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between the members of an already disharmonious family, rendering future cooperation, especially over parenting arrangements, more of a problem. Secondly, it is argued that the control which the parties have over the introduction of evidence means that the court may sometimes not have access to all of the facts relevant to the issues which the court is asked to determine; where the case concerns the welfare of a dependent child this may be particularly unfortunate. Among the solutions which have been suggested are the introduction of an inquisitorial procedure in which the court plays a much more active and independent role in the inquiry, or the reshaping of procedures in respect of children to reflect the essentially “welfare” function that the court is asked to perform, or even the adoption of a more “therapeutic” approach geared towards the minimising of courtroom conflict.

12.

In its approach to these issues the Commission has tried to avoid an ideological preference for any particular mode of trial. Rather it has attempted to combine pragmatism with respect for the basic requirements of fair procedure. The following considerations, in particular, have influenced the Commission's thinking:

Submissions

13.

The Commission welcomes views on its provisional recommendations from members of the public generally and from those with a professional interest in the matters covered. Written observations should be addressed to:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2,

and should be submitted not later than 1 July 1994.

CHAPTER 1: THE ORGANISATION OF FAMILY LAW BUSINESS, COURT ACCOMMODATION AND ACCESSIBILITY

Introduction

1.01

The first chapter of this Consultation Paper comprises an examination of the courts in which proceedings relating to family law matters may be brought in Ireland and in other jurisdictions; as well as consideration of the most appropriate physical facilities that may be provided for the discharge of these matters.

1. FRAGMENTATION OF JURISDICTION IN FAMILY LAW MATTERS

A. Ireland

1.02

In Ireland, proceedings in family law matters may be initiated at the District, Circuit and High Court levels according to the relief claimed. The following is a description of the distribution of original family law jurisdiction in the Irish courts.

Marriage/Separation/Nullity

1.03

(1) Proceedings under the Family Law (Protection of Spouses & Children) Act, 1981 may be brought in the District Court or Circuit Court.¹ A barring order made by the District Court or Circuit Court on appeal has a maximum limit of 12 months after the date of its making,² although a further barring order may be made on or before its expiration.³ Whether proceedings may be brought in the High Court is discussed below.⁴

(2) Proceedings under the Marriages Act, 1972 (seeking exemption from age and parental consent requirements) may be brought before the President of the High Court or a judge of the High Court nominated by the President of the High Court.⁵

(3) Proceedings for nullity may be brought in the High Court.

(4) Proceedings for judicial separation may be brought in the Circuit Court or High Court.⁶ However, where in such proceedings an order could be made in respect of land the rateable valuation of which exceeds £200, proceedings may be transferred from the Circuit Court to the High Court on application.⁷

(5) Proceedings for matrimonial injunctions may be brought in the High Court or Circuit Court.

Maintenance, Property, Financial Matters

(6) Proceedings under ss.5, 5A, 6, 7, 9, & 21A of the Family Law (Maintenance of Spouses and Children) Act, 1976 may be brought in the Circuit Court or District Court.⁸ The District Court and the Circuit Court on appeal from the District Court do not have jurisdiction to make an order under the Act for the payment of a sum at a rate greater than £200 per week for the support of a spouse or £60 per week for the support of a child. The District Court and Circuit Court do not have jurisdiction to make an order in any matter in relation to which the High Court has made an order. The District Court does not have jurisdiction to make an order in any matter in relation to which the Circuit Court has made an order. However, the District Court or Circuit Court may vary or revoke an order made by the High Court prior to 12 May 1982 provided certain conditions are satisfied.⁹ Whether proceedings may be brought in the High Court is discussed below.¹⁰

(7) Proceedings under the Family Home Protection Act, 1976 may be brought in the High Court or Circuit Court.¹¹ However, where either spouse is of unsound mind and there is a committee of the spouse's estate, jurisdiction under the Act must be exercised by the Court that appointed the Committee.¹² All of the foregoing is subject to section 10(4)¹³ which provides that where the rateable value of the land exceeds £200 and the proceedings are brought in the Circuit Court, the Circuit Court shall transfer the proceedings to the High Court

if the defendant so requires. Also, the District Court has jurisdiction to make orders under s.9 of the Family Home Protection Act, 1976 (relating to the disposal or removal of household chattels), provided the value of the chattels intended to be disposed of does not exceed £5,000.¹⁴

(8) Proceedings under the Family Law Act, 1981 may be brought in the Circuit Court or High Court.¹⁵ The District Court has jurisdiction to hear proceedings under s.6 or 7 where the amount claimed does not exceed £2,500.

(9) Proceedings under the Married Women's Status Act, 1957 may be brought in the High Court or the Circuit Court. However, if the rateable valuation of the land exceeds £200 and the application is made to the Circuit Court, and the defendant or respondent requests a transfer, the proceedings must be transferred to the High Court.¹⁶

(10) Proceedings under the Succession Act, 1965 may be brought in the High Court or, in limited situations, in the Circuit Court.¹⁷

(11) Various ancillary orders may be sought under the Judicial Separation and Family Law Reform Act, 1989 in the Circuit Court or the High Court.¹⁸ Such orders include preliminary orders in judicial separation proceedings, maintenance pending suit, periodical payments and lump sum orders, property adjustment orders, orders extinguishing succession rights, orders for sale of property, and miscellaneous other ancillary orders.¹⁹ Some of these other orders are also available independent of the 1989 Act.

(12) Proceedings for partition of property under the Partition Acts, 1868 and 1876 may be brought in the Circuit Court.

Custody And Guardianship Of Children

(13) Proceedings under the Guardianship of Infants Act, 1964, Part II may be brought in the Circuit Court or District Court.²⁰ The District Court and the Circuit Court on appeal from the District Court do not have jurisdiction to make an order under the Act for the payment of a periodical sum at a rate greater than £60 per week towards the maintenance of an infant. Whether proceedings may be brought in the High Court is discussed below.²¹

(14) Proceedings under the Guardianship of Infants Act, 1964, Part III may be brought in the Circuit Court or District Court.²² Whether

proceedings may be brought in the High Court is discussed below.²³

(15) Proceedings in respect of Wardship may be brought before the President of the High Court or a Judge of the High Court where the President so directs,²⁴ or the Circuit Court.²⁵ Where the infant possesses property, however, the jurisdiction of the Circuit Court is limited to proceedings in relation to land the rateable valuation of which does not exceed £200.²⁶

(16) The power to make habeas corpus orders in a family law context is vested in the High Court.

Other Jurisdictions Affecting Children

(17) Section 28 of the Child Care Act, 1991 will, when in force, confer jurisdiction on the District Court and the Circuit Court on appeal from the District Court to hear and determine proceedings under Parts III, IV, and VI of the Act relating to the protection of children in emergencies, care proceedings and children in the care of health boards.

(18) Proceedings under the School Attendance Acts, 1926–27 may be brought in the District Court.

(19) Proceedings under the Adoption Act, 1974 (s.3) and the Adoption Act, 1988 (s.3) may be brought in the High Court.

(20) Orders for adoption are, under the Adoption Act, 1952, made by the Adoption Board.

Declaration Of Status

(21) Proceedings under the Legitimacy Declaration (Ireland) Act, 1868 may be brought in the Circuit Court²⁷ or High Court.²⁸

(22) Proceedings under Part VI of the Status of Children Act, 1987 may be brought in the Circuit Court.²⁹

Criminal Matters

(23) Proceedings in respect of juveniles may be brought in the Children's Courts/District Courts.

(24) Criminal actions in a family context are prosecuted in the criminal courts in the same way as other criminal matters.

Torts

(25) Torts in a family context are litigated in the civil courts in the same way as other torts.

The Fragmentation Issue Complicated By Constitutional Factors

1.04

Article 34.3.1 of the Constitution provides that the Courts of First Instance shall include a High Court invested with full original jurisdiction and power to determine all matters and questions whether of law or fact, civil or criminal. In the family law context, this Article raises important issues. Can the Oireachtas confer jurisdiction over certain family law matters on the District Court and Circuit Court to the exclusion of the High Court, despite the fact that the High Court has “full original jurisdiction”? The resolution of this problem determines in a concrete way whether certain proceedings may presently be brought in the High Court as well as in the District Court or Circuit Court. Also to be considered is the impact of Article 34.3.1 on any plan for the creation of a specialist family court.

1.05

The problem was first addressed in the family law context in a case before the High Court, R. v R.³⁰ The impact of Article 34.3.1 in another context was considered by the Supreme Court in Tormey v Ireland.³¹ While the two decisions are not on precisely the same point, they do represent a divergence of opinion with respect to the basic issue, namely whether the jurisdiction of the High Court may be limited or excluded by statute.

1.06

In R. v R., the plaintiff sought relief under a number of family law statutes: the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Law (Protection of Spouses and Children) Act, 1981 and the Married Women's Status Act, 1957. A preliminary issue arose as to whether the High Court had jurisdiction under these Acts. Jurisdiction under the Guardianship of Infants Act, 1964 initially had been conferred on the High Court and Circuit Court. The Courts Act, 1981 amended the Act so as to confer jurisdiction on the Circuit Court and District Court. Jurisdiction under the Family Law (Maintenance of Spouses and Children) Act, 1976 had been originally conferred on the High Court, District Court and Circuit Court on appeal from the District Court, but again the Courts Act, 1981 amended the Act so as to confer jurisdiction on the Circuit Court and District Court. In

neither case was the previous jurisdiction of the High Court referred to. Jurisdiction under the Family Law (Protection of Spouses and Children) Act, 1981 was conferred on the District Court and Circuit Court. No mention was made of the High Court. These jurisdictional arrangements reflected the desire of the Oireachtas to reduce the volume of family law work in the High Court and divert it into the lower courts.³² Was this attempt constitutional?

1.07

Because the relevant provisions did not expressly state that the jurisdiction of the High Court was ousted, the judgment of Gannon J in R. v R. involved a two-fold enquiry: (a) whether an attempt had been made to oust the jurisdiction of the High Court, and (b) whether such an attempt would be constitutional. In respect of the first enquiry, Gannon J. found that there was nothing in the Acts which affected the original jurisdiction which the High Court had by virtue of the Constitution. He viewed the provision as merely conferring additional jurisdiction on the lower courts, which they could acquire only by statute. This finding has been criticised³³ as being contrary to the intention of the Oireachtas as evidenced by the D il Debates and by the wording of the Act which appears in section 1(1) to define “court” exhaustively as the District Court and Circuit Court. Also s.17(3) of the same Act contains a transitory provision with respect to the High Court which suggests that the High Court would not retain its jurisdiction after a certain point.³⁴

1.08

With respect to the second inquiry, Gannon J. was of the view that the Oireachtas could not constitutionally “add to or increase” the jurisdiction of the High Court by legislation, nor could it “create ... a new judicial jurisdiction and withhold it from the High Court” or “reduce, restrict, or terminate any jurisdiction of the High Court”. However, he conceded that if the Oireachtas chose to confer additional jurisdiction on the lower courts, the High Court would not, in that event, be compellable to provide any person with recourse to the High Court at his or her choice. In such a situation, the High Court could decline to entertain the application and remit it to the lower courts.

1.09

Subsequent to the decision in R. v R., the President of the High Court issued a Practice Direction.³⁵ This provides that where a summons is issued in the High Court claiming relief under the Guardianship of Infants Act, 1964, the

Family Law (Maintenance of Spouses and Children) Act, 1976 or the Family Law (Protection of Spouses and Children) Act, 1981, the summons is returnable before the Master of the High Court in the ordinary way, and should be put into the family law judge's list. At this point, the parties must attend and submit evidence or arguments as to whether the case is one appropriate for the High Court to exercise its jurisdiction, or whether it should be remitted to the Circuit Court or District Court. Subsequently in O'R. v O'R.,³⁶ Murphy J. held that where legislation provided that application could be made in the first instance to an inferior court, the High Court would be justified in departing from that procedure only where it was satisfied that in a particular case there was “a serious danger that justice would not be done” if the High Court declined to exercise jurisdiction.

1.10

The decision of the Supreme Court in Tormey v Ireland regarding the extent of the jurisdiction of the High Court arose in the criminal law context. The plaintiff was charged with an offence under the Larceny Act, 1916 and was sent forward for trial on indictment in the Dublin Circuit Court. Formerly, he would have been entitled to apply for a transfer of his trial to the Central Criminal Court under s.6 of the Courts Act, 1964. However, s.32(1) of the Courts Act, 1981 repealed s.6 of the Courts Act, 1964 and abolished the right of transfer to the Central Criminal Court. The essence of the plaintiff's case in the Supreme Court was that the withholding from him of the right to a trial in the High Court was unconstitutional for being inconsistent with Article 34.3.1.

1.11

Delivering the judgment of the Supreme Court, Henchy J. held that Article 34.3.1 could not be read literally, because other constitutional provisions illustrated that original jurisdiction with respect to certain other justiciable matters could validly be exercised by entities other than the High Court, e.g. the Supreme Court with respect to Bills referred by the President, military tribunals with respect to military law, and the exclusive jurisdiction of the courts of summary jurisdiction to try “minor” offences. Henchy J. considered that a literal reading of Article 34.3.1 could be impractical because the jurisdiction would then be “overlapping and unworkable”. Moreover, a literal reading of Article 34.3.1 would dictate that the High Court had jurisdiction over all issues including those in respect of which the High Court was an inappropriate forum.

1.12

Rejecting a literal interpretation of the Constitution, Henchy J. held that the document should instead be read as an interlocking whole – an approach described as the “doctrine of harmonious interpretation”.³⁷ Applying this approach, he said that the jurisdiction of the High Court could be exercised in one of two ways. If there had been no statutory devolution of jurisdiction to the District Court or Circuit Court, the High Court would exercise jurisdiction in the area. However, if jurisdiction in a particular area has been delegated to lower courts exclusively, the High Court could not exercise jurisdiction, except in

proceedings for judicial review. Henchy J. concluded that the abolition of the right of transfer as achieved by the Courts Act, 1981 was constitutionally valid.

1.13

It is difficult to reconcile the decision of Gannon J. in R. v R. with that of the Supreme Court in Tormey. The apparent inconsistency between the two decisions leaves in some doubt whether proceedings under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976 and the Family Law (Protection of Spouses and Children) Act, 1981 may properly be instituted in the High Court. However, R. v R. has not been expressly overruled. Moreover, in the later case of McD. v McD.,³⁸ McKenzie J., following the Practice Direction,³⁹ decided that the case was appropriate for determination by the High Court, and proceeded to make orders under the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses of Children) Act, 1976.

1.14

Lastly, it should be pointed out that the decisions in R. v R. and Tormey v Ireland have implications for future reforms. If a specialised Family Court were to be set up, there are a number of possible forms it might take. For example, it might be at lower court level exclusively, at High Court level exclusively, or it might be three-tiered. It might be an independent entity, or it might be a division within the existing court structure. All of these options have been explored by other jurisdictions. In Ireland, the creation of a Family Court must be conditioned by considerations of what is constitutionally permissible in the light of Article 34.3.1, as understood in R. v R. and Tormey v Ireland.

B. Problems Of Fragmented Jurisdiction In Some Other Countries

(a) Australia

1.15

Unification of jurisdiction in family law matters in Australia is hindered by constitutional provisions which mandate that jurisdiction in such matters be split between the Federal Courts and the State/Territory Courts. The Australian Constitution vests in the Commonwealth jurisdiction over “marriage” and “divorce and matrimonial causes, and in relation thereto parental rights and the custody and guardianship of infants”.⁴⁰ The sum of these two parts does not constitute the whole of family law and the remainder is left to the state and territory courts. Fragmentation of jurisdiction in Australian family law remains a problem despite the existence of a unified Family Court. The federal Family Court was set up by the Family Law Act, 1975, but can exercise jurisdiction only with respect to matters falling within the ambit of federal law. Accordingly, jurisdiction over family law matters is exercised by all of the following courts:

1.16

With the enactment of the Family Law Act, 1975 (Cth.), the Federal Parliament attempted to legislate with respect to family law matters as far as possible within its area of competence. Broadly speaking, these matters include dissolution and annulment of marriage, and maintenance, custody and matrimonial property provided these issues relate to proceedings for principal relief (dissolution or nullity). Areas such as child welfare, parentage (including adoption), legitimacy and family inheritance do not fall within Commonwealth competence. Also, the Commonwealth powers relate only to families formed on the basis of marriage, as a result of which issues of custody, guardianship and maintenance of ex-nuptial children, as well as the rights and duties of persons living in a 'de facto' relationship, are excluded.

1.17

The Family Law Act, 1975 gave rise to much litigation. Numerous attacks were mounted on it relating to the assumption of jurisdiction in certain areas.⁴¹ Some of these decisions necessitated the narrowing of the federal jurisdiction, while others illustrated the difficult fragmented nature of family law litigation in Australia.⁴² The attacks on the Family Law Act, 1975 caused great concern and resulted in the appointment of a Joint Select Committee. In its report of July 1980, this Committee concluded that the Act did not exhaust the Commonwealth's Constitutional powers with regard to marriage and matrimonial causes.

1.18

In 1983, the Family Law (Amendment Act) was enacted, which Act further widened certain heads of jurisdiction at federal level. Nonetheless, problems continue to arise as a result of the division of jurisdiction caused by the Constitution. Accordingly, fragmentation problems in Australia may be seen as two-fold:

1.19

Various solutions to the fragmentation problem in Australia are a major focus of enquiry in that jurisdiction. The possibility of a constitutional referendum widening the Commonwealth's power in family law has been raised.

The Final Report of the Constitutional Commission (a body established to inquire into the revision of the Australian Constitution) in 1988 recommended the alteration of s.51 of the Constitution so that the Federal Parliament would have power to make laws with respect to:

1.20

Another solution is the “referral” of State/Territory powers to the Commonwealth. In essence, this involves the States and Territories abdicating their powers in the family law area to the Federal Parliament. This has been effected by some States in relation to certain powers but as yet is not far-reaching enough to solve all problems of fragmentation.⁴³ Legislative amendments in 1987 and 1988 have resulted in the acceptance of the references of powers with regard to children from the four states, so that all children are governed by the Family Law Act, 1975 in these States.

1.21

The third solution proposed by some commentators was implemented in 1987 by the Jurisdiction of Courts (Cross-Vesting) Act of that year, accompanied by equivalent legislation of the states and the Northern Territory which came into operation on 1 July 1988. This sets up a “cross-vesting” scheme under which all the participating courts, both state and federal, may transfer proceedings to the appropriate court, so that litigants will be spared inconvenience and expense.

1.22

The primary reason for the establishment of the Australian Family Court was to create an entity with procedures, personnel and support services appropriate to deal with family law matters. While these features of the Australian Family Court are worthy of study, it is arguably less valuable as a model for unification of jurisdiction because fragmentation of jurisdiction continues to be a feature of Australian family law.

(b) Canada

1.23

Canada is, again, a federal jurisdiction and suffers from problems of fragmentation similar to those seen in Australia. The British North America Act, 1867 confers legislative power over “marriage and divorce” on the Dominion

Parliament⁴⁴ and legislative power in relation to the “solemnisation of marriage” on the provinces.⁴⁵ Thus, the Dominion has jurisdiction over the beginning (except formalities) and end of marriage, while the provinces cover that which is in between.⁴⁶ A division in the court structure is also on a federal/provincial basis, because of ss.92(14), 96 and 101 of the British North America Act. Fragmentation of jurisdiction has been identified as a severe problem by the Canadian Law Reform Commission⁴⁷ and the Ontario Law Reform Commission.⁴⁸

1.24

In 1974, the Canadian Law Reform Commission recommended the creation of a unified Family Court which would have jurisdiction over the following matters:

1.25

It listed five other areas over which a difference of opinion existed:

1.26

With respect to the latter group, the Law Reform Commission recommended that such matters should not fall within the exclusive competence of the Family Court but that proceedings should be heard in the Family Court

where this is deemed appropriate. Legislative provisions regulating transfer and waiver of jurisdiction, therefore, would be required. The Commission came to no firm conclusion as to whether juvenile delinquency should come within the purview of the Family Court proposed.

1.27

The Ontario Law Reform Commission recommended that the following matters should come within the jurisdiction of a unified Family Court:

(c) England

1.28

While there is no unified Family Court in England, calls for the creation of a Family Court have been made since the early 1960's. The leading Report in England is that of the Finer Committee⁴⁹ in 1974, which recommended the creation of a unified court system. The Finer Committee did not list in detail the heads of jurisdiction which it thought the Family Court should absorb, but implied that jurisdiction would encompass matrimonial matters, presently heard in the Magistrates Courts, the County Courts and matters heard in the Family Division of the High Court. The one head of jurisdiction the Finer Committee did discuss was that of crime. It said that the Family Court should deal exclusively with civil matters, considering that “the arguments of principle for an undiluted civil jurisdiction outweigh the advantages (such as they may be) of permitting it to spill over into penal law”.⁵⁰ Indeed, the Committee observed that one of its reasons for recommending the removal of magisterial jurisdiction from family law matters was the “distress” of dealing with people in matrimonial dispute in “a court which is almost entirely given over to the trial of criminal offences”.⁵¹

1.29

Other suggestions for a unified Family Court in England and its jurisdictions are as follows:

1.30

The Government appears to have rejected the idea of setting up a Family Court. Instead, it is committed to the creation of a concurrent family jurisdiction to be applied in all Courts. The intention is to develop a coherent family code and to remove the differences in procedure between the different courts. Therefore, as each area of family law is reformed, a unified concurrent jurisdiction for its operation will be developed. Such concurrent jurisdiction has been provided for in the Children Act, 1989. The jurisdiction of the courts under the Children Act operates as follows:

1.31

The structure for appeals in Children Act cases is as follows:

Thus, if the case is very complex or if the case is very sensitive or involves matters of great public interest, the High Court alone will have jurisdiction. If, on the other hand, the issues involved are not too complex Magistrates can, with a reasonable level of training, deal with the case at local level.

(d) New Zealand

1.32

The New Zealand Family Court was established in 1981 at the same as time other substantive family law reforms were introduced. The Court was constituted by the Family Law Courts Act, 1980 which came into force on October 1, 1981. The New Zealand Family Court is a division of the District Court and it is an inferior court. However, according to Bill Atkin,⁵⁵“the Court has developed its own ethos and built up its own reputation which makes the description inferior somewhat inappropriate”. The Court has its own accommodation and administrative facilities and has attached an official called the Counselling Coordinator, whose task it is to direct members of the public to the appropriate agencies.

1.33

There is considerable emphasis in the Court upon resolution by agreement and for this reason the parties are referred to counsellors. If this fails, a judge can chair a mediation conference. This is not mediation in the pure sense as the judge can play an active role in obtaining a result and can issue and

send orders at the end. According to Bill Atkin, this may well raise questions about the power potentially wielded by the judge and about the propriety of such informal justice mechanisms. Despite these doubts, however, the participants seem content, at least for the present, with a process that tries to avoid formal argument and adjudication and there is no call for a return to the days of the strict adversary system.

1.34

The Family Court began its life with jurisdiction over only traditional family law matters; divorce, maintenance, matrimonial property and child custody were the principal ones. Because of the success of the court, its jurisdiction has gradually widened. The family courts now have jurisdiction in the following areas:

1.35

More recently the family court has been given jurisdiction to hear family protection claims, testamentary promises claims and wardships, all formerly the preserve of the High Court.⁵⁶ The Court's jurisdiction in relation to child maintenance has changed significantly with the enactment of the Child Support Act passed in 1991 and effective on July 1 1992. This Act follows a pattern set in other countries by developing a formula for the calculation of child maintenance.

1.36

The Family Court's success and the attractiveness of its style has led to suggestions that its jurisdiction be widened. For example, it has been suggested that the family court might be the appropriate forum for granting compulsory treatment orders in mental health cases. It is also proposed to extend the jurisdiction of the family court further in relation to property disputes between de facto partners. However, as pointed out by Bill Atkin, wider jurisdiction can bring its own problems. The more issues that are dealt with by the family court, the more its distinctive character is in danger of being lost. Standards of judging, training and ancillary services are consequently placed under greater pressure. An alternative is to create more specialist tribunals but in a nation with a population of just over three million, the proliferation of such tribunals could, as in Ireland, prove too much of a strain on resources and expertise.

Criticisms Of The Present System

1.37

The problems associated with fragmentation of jurisdiction in Ireland have been variously described. The present system has been criticised because it impedes the development of a specialist judiciary; and because the large number of judges and justices hearing family law matters may lead to a disparity in the manner in which cases are heard and orders are made. Delay caused by having to proceed in different courts, as well as the often prohibitive costs involved in multiple proceedings, are also cited as problems inherent in the present system. In particular, the system is criticised for its effects on litigants who are forced to seek distinct legal remedies in separate courts for the resolution of issues arising out of the same family dispute. The demand in this regard for the consolidation of trials in family law proceedings is examined in greater detail in chapter three.

1.38

As we have seen, fragmentation of jurisdiction in family law matters is also a problem encountered in the other jurisdictions examined. In England and Canada, a desire for unification of jurisdiction is the main motivating force behind calls for a unified Family Court. In Canada and Australia, the problems of fragmentation are exacerbated by constitutional provisions dividing family law powers between Federal and State Parliaments and therefore Federal and State Courts.

1.39

In June 1993 the Public Service Executive Union (P.S.E.U.) which represents clerks in the District and Circuits Courts submitted a recommendation to the special Judicial Commission on the Courts, the Law Reform Commission, and the Minister for Justice for the establishment of Family Courts Tribunals. The recommendation is intended to apply to all family law matters and to s.24 and 58 of the Children's Act, 1908. The Union pointed out that its recommendation that Family Courts should be established separately from the existing courts structure in each county could be achieved either by the introduction of new legislation or within the existing legislative framework. It considered that new legislation is not necessary and that the existing framework would be sufficient. The central recommendation was that there should be established within each county an office to deal with all family law matters within

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that county. The Union pointed out that, at present, 3 different offices, attached to the District Court, the Circuit Court and the High Court, all administer family law matters. It pointed to the disadvantages involved in such a system, particularly if a case moves from one court to another. Work and records are duplicated. Delay arises in transmitting orders. Litigants, referred from one level of court to another, are confused. This would all be eliminated by having one office dealing with family law matters.

1.40

The system proposed by the Union would work as follows:

The office of the Family Court would receive the originating documents and would schedule the case to the appropriate court depending on the reliefs sought. In this way the officer in the Family Law Court would be acting as registrar to the District Court Judge, the Circuit Court Judge and the High Court Judge. It is envisaged that in the larger centres like Dublin, Cork and Limerick, court clerks employed full time on this work at present at different jurisdictional levels, would continue at this work but would be employed in one Family Law Office which would administer the system at all three levels.

1.41

The Union suggests that the following advantages would be expected to follow from the adoption of the proposed system.

Technology could also be introduced to streamline the family law system and only one computer per county would be required.

2. THE FORUM

(1) Accommodation

1.42

It is felt by many people involved in family law cases that the highly personalised nature of the disputes involved means that traditional court facilities are unsuitable and intimidating. Calls have been made in several countries for the provision of suitable court facilities for family cases, whether such cases are heard within the ordinary court system or in a specialised Family Court.

1.43

In Dublin separate courtrooms are in fact provided for the High Court,

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Circuit Court and District Court hearings of family law cases. The High Court and Circuit Court rooms are in Áras Uí Dhálaigh, beside the Four Courts. This facility was opened in 1988. The District Court room is in Dolphin House. These court rooms were specially designed for family law hearings and are recognised to be more modern and familiar reducing the overall intimidatory effect of the adversarial process; thus the situation in the Dublin Courts has clearly improved.

1.44

Outside Dublin family law cases are heard in camera in ordinary court rooms, special rooms or judges chambers. In areas outside Dublin the situation has markedly disimproved; Athlone Court no longer sits as a Circuit Court due to the state of disrepair of the building. This represents a problem with regard to accessibility in that litigants must travel to Mullingar. Also Carlow Circuit Court was not sitting for the same reason until recently and now it has only one sitting a term. Clearly this is not sufficient to meet the needs of litigants.

1.45

The main problem with the provision of special family courts is of course the financial cost involved. However, some argue that it is unnecessary to build special court buildings and that use can be made of schools, town halls and community centres.

1.46

The Joint Committee on Marriage Breakdown (1985) felt that existing facilities in Ireland for family law cases were inadequate and unsuitable:

1.47

The Committee recommended the creation of a Family Tribunal and that accommodation for this entity should have a number of features:

The Committee suggested that certain types of accommodation could be adapted for use in this regard, such as conference rooms or meeting rooms in community facilities.

1.48

The Judicial Separation and Family Law Reform Act, 1989 contains a number of provisions relevant to the conduct of family cases in the Irish courts. S.31(1) provides that when the Circuit Court is exercising its jurisdiction to hear and determine “family law proceedings” or when transferring “family law proceedings” to the High Court, it shall be known as the Circuit Family Court. S.32 provides that the Circuit Family Court must hear family law proceedings in a different place, or at different times, or on different days, from those on which the ordinary sittings of the Circuit Court are held.

1.49

The Finer Committee in England (1974) had recommended the creation of a unified Family Court, but during the House of Commons debate upon the Report, the Secretary of State for Social Services, Mrs Barbara Castle, said that the Government saw no prospect of accepting the recommendation for Family Courts because of the cost of the new buildings which would be required. Thus, accommodation has been one of the major stumbling blocks to creation of a Family Court in England. This approach was criticised by the Family Law Sub-Committee of the Law Society in 1979:⁵⁷

1.50

The Consultation Paper on Family and Domestic Jurisdiction published in 1986 by the English Lord Chancellor's Department considered the creation of a unified Family Court and discussed the issue of accommodation. It said that the traditional courtroom with the raised bench, witness box and tiered seating was inappropriate for family cases. The room in which cases were heard should be big enough for all the parties and their advisers, and perhaps different types of room would be necessary, for example, a more formal lay out for domestic violence proceedings, and less formal for care proceedings. It was thought that rooms should be available for consultation with welfare officers and legal advisers, and again it was felt that suitable accommodation might be available in church halls or schools.

1.51

Australian experience, on the other hand, suggests that such solutions may not be successful. Mr Justice Fogarty, writing in 1985,⁵⁸ points out that when the Australian Family Court first came into operation in 1976, the larger registries were placed in commercial buildings and the courts were designed to give an air of informality and smallness. The government in power at that time was not over-enthusiastic about the Family Court and did not wish to lay out capital for the construction of new court buildings. Mr Justice Fogarty observed:

(2) Geographical Accessibility

1.52

Many persons and bodies advocating the creation of Family Courts have laid emphasis on the accessability of such courts, i.e. that the courts would be geographically widespread and, hence, easily accessible to litigants.⁶⁰ This issue is linked with that of accommodation, since any difficulties of financing suitable central Family Court accommodation will be increased by placing Family Court centres around the country.

1.53

In March 1990 the government decided to transfer financial responsibility for the court accommodation outside Dublin from the Local Authority to the Exchequer. This arrangement was “intended to ensure that court houses in greatest need received priority and that appropriate facilities are provided in each location – for example, through the provision of special facilities for Family Cases where this type of special facility is considered desirable, warranted by the amount of business arising and capable of being accommodated in the space available without undue cost”.⁶¹

1.54

The Department of Justice White Paper on Marital Breakdown states at Proposal 16 that a “Special Family Law Court room will be provided in future large scale projects. The more urgent requirement of decent interview facilities for District Court Clerks to meet Family Law Clients will be given priority as schemes come up”.

1.55

In some countries, the issue of accessibility is addressed by placing the Family Court at District Court level. In New Zealand, for example, the Family Court is a division of the District Court. In Japan, Family Courts are at a higher level than the lowest court, the Summary Court, but Family Courts are located around the country at the seat of every summary Court. The Canadian Law Reform Commission laid emphasis on the accessibility factor, saying that it was “a prerequisite to the resolution of disputes”, because in the changing circumstances of a family situation, the parties should be able to apply without delay to the judge to consider the new circumstances and, where appropriate, to

vary the original order.⁶² This Commission favoured the creation of a Family Court at Superior Court level, but said that superior court judges would be resistant in a number of provincial centres.

1.56

The Ontario Law Reform Commission also laid emphasis on accessibility, but came to a different conclusion. It felt that the creation of a Family Division of the Supreme Court would cause problems of delay and would mean that the Judge would not be as familiar with the resources of the community as he should be. This Commission felt that it should be mandatory that the Family Judge reside in the community he serves. It recommended the creation of a separate Family Court and that there be a branch of the court in each country and district in Ontario.

Conclusion

1.57

The absence of research on family law matters in Ireland⁶³ makes it difficult to gauge whether litigants in family law proceedings find traditional courtroom structures too formal and overbearing or whether they would prefer to travel further afield to avail of facilities purpose-built for the resolution of family disputes. There would appear to be general agreement, however, amongst persons involved in family law matters that traditional courtroom facilities are ill-equipped and unsuitable for family law proceedings. Any proposals for the overhaul or replacement of present facilities would need to take into account concerns, on the one hand, that litigants should feel comfortable and uninhibited by their surroundings, and concerns, on the other hand, that proceedings may not be taken seriously enough in an overly casual setting.

CHAPTER 2: ALTERNATIVE MEANS OF DISPUTE RESOLUTION

PART 1: MEDIATION

2.01

The last two decades have witnessed a growing interest in the provision of mediation services to parties in a marital dispute in many jurisdictions. We shall be examining the meaning of mediation in more detail shortly, but at this point it suffices to note that mediation is a process in which a third party, a mediator, helps the parties in a dispute to resolve it by agreement. The outcome of a successful mediation is an agreement that is satisfactory to all the disputants and is structured in a way that attempts to maintain the relation of the people involved. Proponents of mediation argue that it is ideally suited to many family disputes.

2.02

Mediation services are not intended to supplant the existing adversarial process, but rather to divert certain cases away from it. Some cases will inevitably end up in court as no agreement will be forthcoming. Equally importantly, there are certain types of case which should generally go to court and may not be appropriately resolved by mediation. Such cases include those where there is serious violence against one of the spouses, or where there are allegations of child sexual or physical abuse, or where a declaration of legal status is sought. Mediation should be viewed only as one of a number of methods employed in the resolution of marital disputes.

2.03

The principal existing methods of resolving marital disputes in Ireland consist of the adversarial court hearing and the settlement negotiated by lawyers. Bearing in mind that a mediation service would co-exist with these methods of resolving disputes, what does mediation offer to the parties?

The following arguments inter alia are put forward in support of mediation.

2.04

The movement in favour of mediation services has not been without its critics. Arguments against mediation include the following.

Definition Of Terms

2.05

The terms “reconciliation”, “conciliation”, “counselling” and “mediation” are often used interchangeably. However, we shall use the terms as follows:

In this chapter, we shall be using the terms “conciliation” and “mediation” synonymously. Although certain commentators prefer to distinguish them, in reality conciliation services in one country often closely resemble mediation services in another. As the term “conciliation” tends to be confused with “reconciliation” we prefer where we have a choice, to use the term “mediation”. However, in describing services in other countries it may sometimes be necessary to use the term “conciliation”.

2.06

Unlike reconciliation, conciliation/mediation proceeds from the premise that the marriage has broken down and seeks to promote agreement between the parties on specific legal and practical issues, such as child custody, property matters and maintenance. The following are merely a sample of the numerous definitions of mediation/conciliation which have been put forward:

2.07

The extended code of practice of the National Association of Family Mediation and Conciliation Services in England (NAFMCS) states:

In the short term, the objective of mediation is to help the parties reach a workable settlement which takes account of the needs of the children and adults involved. The longer term objective is to help both parents:

NAFMCS defines the process as an intervention in which a third party assists the parties to a dispute to negotiate over the issues that divide them. The mediator has no stake in the dispute and is not identified with any of the competing interests involved. The mediator has no power to impose a settlement on the parties who retain authority for making their own decisions. The mediator is therefore responsible for the conduct of the process (which is held to be discrete

and unambiguous) but is not responsible for the outcome.

2.08

We may distinguish mediation from other forms of intervention. For example, mediation is not a therapeutic process:

Mediation is not like arbitration. In arbitration, the parties authorise a third person to decide upon a binding resolution of the issues, and although the proceeding is less formal than in court, the process is adjudicatory. In contrast, the parties to mediation may choose a mediator but do not authorise the mediator to make decisions for them.

Features Of Mediation Schemes

2.09

Several different types of mediation service will be described in the following pages. In compiling these descriptions, the Commission has focused attention on the following components of the mediation services offered in all of the various jurisdictions examined:

Ireland

2.10

In June, 1984, the Department of Justice held a Seminar on Conciliation in Family Law Cases, indicating perhaps the first official interest in the subject.⁹ Before the Divorce Referendum in 1986, the Department issued a Statement on the Government's Intentions with regard to Marriage, Separation and Divorce¹⁰ which proposed changes in procedures for separation and gave details of the proposed divorce legislation. This Statement included a proposal to set up a Family Court to be presided over by one of a number of Circuit Court Judges specially assigned for the purpose. The Government further proposed that:

2.11

In 1985, the Joint Committee on Marriage Breakdown described the essential features of mediation as follows:¹³

2.12

The Committee favoured a mediation model in which a third party would be present with the two spouses and would act from a position of neutrality to help the parties towards an agreed outcome, providing assistance by helping to formulate their positions, identifying options and pointing out the consequences of these options. The Committee preferred this model because it allowed the parties to retain control over their case, and because decisions reached in this way would be more likely to be adhered to, because it encouraged the spouses to focus on the interests of the family as a whole, because it would establish a pattern of communication for the future, and because it would reduce expense, delay and costs for spouses and for the State.

2.13

The Committee examined three schemes of mediation: (1) an independent mediation service, (2) mediation through the Court Welfare Service, (3) mediation by a judge or person in a quasi-judicial capacity. It favoured the independent mediation service. It envisaged the use of this service at an early stage of proceedings, preferably before court proceedings had arisen. The Committee recommended that such a service be nationwide so as to avoid difficulties of diverse approaches, staff levels and organisation as had been encountered in England by reason of the existence of separate independent mediation services.

2.14

The Committee did not favour mediation through the Court Welfare Service (or “in-court mediation”) for a number of reasons. The first was practical, namely the limited nature of the welfare service attached to the Irish courts. A second reason was that one of the functions of the Welfare Service, if attached to the proposed Family Court, would be the preparation of independent reports to the courts on family circumstances. It was felt that persons would be unlikely to enter mediation if they suspected that what they said would be reported in court proceedings.

2.15

The Committee also rejected the idea of mediation by a judge or person in a quasi-judicial capacity, because the parties would tend to be intimidated by the status of the mediator and the surroundings in which such mediation would take place. In particular, persons would find it difficult to realise that the decision-making power lay in their hands despite the presence of a Judge. Also judges might be inclined to turn mediation into adjudication. Finally, it was unlikely that the court system would have sufficient time to set aside for effective mediation.

2.16

Regarding the scope of the service, the Committee felt that the issues of property and finance should be included within the scope of the service. The mediator would have a good working knowledge of the relevant law and the parties would receive legal advice from their lawyers.

2.17

As for methods of referral, the Committee rejected the idea of

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compulsory participation in a mediation scheme as being contrary to the spirit of mediation. It recommended instead that active steps should be taken to inform persons of the existence and nature of the scheme, i.e. that it be widely publicised generally and to those dealing regularly with marital breakdown – lawyers, social workers, doctors, counsellors. It recommended that the originating document in family proceedings contain a paragraph informing the parties about the mediation service – what it is, how it could assist them, and costs. The Committee recommended that the adjournment of cases should be possible if both parties wish to attend mediation and that all communications between spouses during mediation be privileged and, therefore, not available as evidence in subsequent proceedings without the consent of both parties. It recommended a simple and inexpensive procedure whereby the agreement reached through mediation would be noted and accepted by the court.

2.18

Some of the Joint Committee's recommendations have been implemented. The Judicial Separation and Family Law Reform Act, 1989 contains provisions which inter alia place an obligation on lawyers to suggest reconciliation, agreed separation and mediation to clients seeking judicial separation¹⁴, allow the court to adjourn cases to facilitate reconciliation, mediation and agreed separation¹⁵, and provide for privilege in respect of communications made during mediation.¹⁶ The Committee's proposal for a nationwide mediation service has not been implemented. The Family Mediation Service (FMS) was established in Dublin in 1986 as a relatively small pilot scheme and its future expansion is currently under examination by the Department of Equality and Law Reform. In the next section, we examine the scheme presently being administered by the FMS in Dublin.

The Family Mediation Service

2.19

On the 1st September, 1986, the Family Mediation Service opened its doors to the public. It was set up as a three year pilot scheme under the auspices of the Department of Justice and has continued in operation despite the lapsing of its time limit. The scheme closely identified with that proposed by the Joint Committee of Marriage Breakdown. As we have already noted, it is an out-of-court, voluntary and free service. It is located at the Irish Life Centre, Lower Abbey Street, Dublin 1. It is staffed by a full-time co-ordinator who is a trained mediator, a secretary, and four part-time professionally trained mediators.

2.20

The Family Mediation Service was set up following the recommendations of a voluntary steering committee, which adopted the following definition of mediation:

The service is available to couples who have decided to separate or who are already separated. It is not a marriage counselling service. If couples enter into mediation and subsequently decide that they wish to continue the marriage, they are referred to a counselling agency.

2.21

The mediation process in the Family Mediation Service has been described as follows.¹⁷ The whole process takes anything from 2 to 6 working sessions and covers an introduction, exploration of the issues and options, negotiation and decision-making, writing up the agreement and review. In the introduction, the mediator clarifies the process to the couple, his or her role, and the issues. The couples are informed that mediation is a co-operative process and that the mediator is there to guide and structure their discussions so that they can make their own agreements. The separation is then explored, as well as the issues on which agreement will be required. In the next few sessions, each issue is taken one at a time – finance, property, children. All the options are explored and the couple is asked to mull them over until the session on negotiation and decision-making. Once all the options are explored, the parties go through a negotiation and decision-making session. Once decisions are made, the mediator goes through a rough draft of the agreement with the couple. Finally, the agreement is written up in a document in a clear and simple way. Each spouse then takes an unsigned copy to his or her solicitor to draw up a legal agreement, if required. Having made the agreement, the couple is invited to bring in the children and include them in a joint session in which the

separation and the future plans will be explained to them. A review session is set for 6 months after the last session to give the couple a chance to implement the arrangements. The review session allows the spouses to air feelings, and enables the mediator to assess the effectiveness of various options. If there are major conflicts, a further session may be arranged.

2.22

The Family Mediation Service observes the following Rules of Family Mediation:

2.23

According to the latest statistics submitted by the Family Mediation Service to the Department of Equality and Law Reform, between 1st September, 1986 and 31st December, 1992 there were 5,531 requests for initial appointments. Of these 3,525 received advice and information only, because the request was unsupported by the other spouse. The remaining 2,006 were given appointments. Of these 1,437 couples attended mediation, 774 reached a mediated agreement on all disputed issues and in 102 cases, the couples were reconciled. The demand for mediation is increasing. In September 1991 there were 80 couples undergoing mediation, while 70 couples were on the waiting list. By July 1993, there were 120 couples on the waiting list, an increase of over 70% in just over a year and a half.

2.24

On April 25 1990, Mr. S. Barrett, T.D. asked the Minister for Justice in the Dáil¹⁸ if he would make a decision regarding the future of the FMS following the report which he received from the Committee in September 1989 containing recommendations for setting up a permanent structure. The Minister for Justice, Ray Burke, said that in light of the report on the pilot scheme, he considered that a number of wider issues needed to be examined before decisions were reached on the long-term future of the service. The Minister proposed to appoint a committee to examine all the various options, having regard, among other things, to such matters as mediation services provided privately, quality of service, geographical distribution, cost-effectiveness. The Minister would then put a proposal to the Government on the matter.

2.25

To date, no committee has been appointed. In its White Paper on Marital Breakdown (1993), the Government recognised the success of mediation services and proposed to determine the nature of appropriate long-term mediation services. There have since been three important developments. First, there has been a heightened awareness of the potential of mediation in the media, in social service organisations and in educational establishments. Second, responsibility for mediation has been moved from the Department of Labour to the new Department of Equality and Law Reform. Third, the Minister for Equality and Law Reform, Mr. Mervyn Taylor, T.D., in a recent press release (Wednesday, 10th March, 1993), paid tribute to the work done by the Family Mediation Service since its establishment in 1985. He said “it would be all the more important in the future to have a strong Family Mediation Service particularly in the context of the proposed referendum for the removal of the ban on divorce from our Constitution”. The Minister said that the best way this could

be achieved was by putting the service on a statutory basis.

Training And Selection Of Mediators In Ireland

2.26

The Family Mediation Service is conscious of the importance of laying down standards in the selection, training and accreditation of mediators. Up to now, the Family Mediation Service has used the United States system of accreditation and qualified mediators are associated to the American Academy of Family Mediators; indeed most mediation trainers used in Ireland are from the United States.

2.27

The requirements set down by the Family Mediation Service for the practice of mediation are in line with international standards of the Academy of Family Mediators. These include:

In total this is equivalent to approximately three and a half months of immersion training. Those who seek training in mediation in Ireland normally obtain their training at the Family Mediation Service or attend an introductory sixty hour programme given by a small number of qualified mediators. This intensive training is complemented by private supervision. Some introductory training in mediation, though not as comprehensive as the above, is also provided by groups of psycho- therapists and counsellors. However, there is some debate with regard to the different models of mediation that are used by psycho-therapists and counsellors.

2.28

Despite the comprehensive training and accreditation process operating in the Family Mediation Service, there is real concern at the increasing number of people who are practising mediation around the country, who are not subject to any control or ongoing supervision and may have had little or no training. It has been suggested by the Family Mediation Centre that training should be centralised with Government approval and financing at a designated training centre.

2.29

The Mediators Institute of Ireland, a professional body of mediators has prepared a document examining the possibility of setting up an Irish accreditation system. At the time of writing, this document has not been published. The criteria for selection for training by the Family Mediation Service include:

2.30

In England any person with a relevant degree or professional qualification or with five years work experience in Human Relations or Management is eligible for selection or training by the NAFMCS. A new pilot selection procedure was introduced by NAFMCS in Spring 1993, which widens the entry base by selecting trainees on the basis of their aptitude for mediation, mainly assessed at the level of interpersonal skills, supplemented by an educational or professional qualification. Trainees on the programme tend to come from a wide range of professional backgrounds and they include teachers, family lawyers, nurses and administrators. However, reservations have been expressed about any system of selection which looks primarily at aptitude at the expense of academic qualification. For a comparative analysis of mediation services in other jurisdictions, see Appendix 1.

MISCELLANEOUS ISSUES PERTINENT TO MEDIATION

A. Power Imbalance In Mediation

2.31

Perhaps the most important criticism of the mediation process is that, in emphasising the importance of reaching agreement between the parties, mediation pays insufficient attention to the power imbalances inherent in many marital relationships. The wife is usually seen as the more vulnerable partner as she is more often economically dependent on her husband.

2.32

However, a power imbalance may arise for many reasons. A 1989 report by the Ontario Advisory Committee on Family Mediation²⁰ listed some of those reasons including domestic violence, one spouse having greater earning capacity or being more experienced in business and financial matters than the other, and one spouse being more confident than the other. The report noted that the disadvantaged spouse tends to be the wife and that such disadvantage may be

compounded by women's tendency to be self-sacrificing, to make do, and to negotiate for their children rather than for themselves.

2.33

Some commentators take the view that such sexist imbalances are so pervasive that it means that many couples – in one study cited by the Ontario Advisory Committee, up to 25% of couples – are found to be “unsuitable for mediation”. Power imbalance may also arise for psychological reasons. For example, one spouse may be desperate to maintain the relationship or to obtain custody or access to the children, or may feel so burdened by guilt about behaviour in the marriage or about initiating the separation, that she/he is unable to assume an equal bargaining position. Some of these issues can be addressed by proper screening procedures. For example, there can be a policy of not mediating in cases of domestic violence or where one spouse has not accepted that the marriage is over. Other issues can and are normally addressed during the process of a properly conducted mediation. For example, mediation may be terminated when it becomes clear that one partner is consistently intransigent, domineering or unwilling to disclose information.

2.34

Another concern raised by the Ontario Advisory Committee was that a mediator would bring to the process his or her own values about the role of women. However, it could be argued that such bias, or gender stereotyping, applies equally if not more so to litigation, where judges are predominantly male. It may also be said that the risk of bias or gender stereotyping may work equally to the disadvantage of men if, for example, the mediator assumes that women are necessarily better at child rearing. However, just as the judge's bias is constrained by legal norms and rules, the mediator's bias is constrained by the ethos and process of mediation. The agreement is negotiated by the parties themselves and is not imposed by a third party. If the mediator is pushing a stereotyped solution not agreeable to one of the clients, that client is free to refuse it.

B. Legal Protection

2.35

Mediation is a means of settling family law disputes outside the adversarial court forum. Yet the very fact that it is conducted outside court means that the procedural and substantive rules that would be employed in a court are absent. This is an advantage in that the informality tends to be more conducive to agreement. However, there is a fear that the absence of such safeguards leaves a party exposed to the risk of agreeing to unfair arrangements. For example, a spouse may agree to a specific amount of maintenance in order to obtain custody of the children, when that spouse might have obtained a higher rate of maintenance as well as custody in court. Full disclosure in respect of financial means may not be forthcoming. The view has been taken throughout this chapter that mediation is intended to complement, rather than supplant, the adversarial court process. Thus, parties may choose to participate in mediation because of the benefits that it offers. In this sense, the parties can choose to waive their strict legal rights and to negotiate instead on the basis of their mutual needs and interests. However, it is felt that such choice must somehow be an

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informed choice, and that mediation should not become a means of depriving parties of their rights. In light of such considerations, it is generally felt that certain legal safeguards should be built into the mediation system. These safeguards tend to take any or all of the following forms:

2.36

The parties should be encouraged to seek independent legal advice before and during the hearing.

In this respect, it should be observed that the 1989 Report of the Ontario Advisory Committee on Family Mediation recommended as follows:

2.37

Legal advisers should be present during the hearing.

One difficulty with this type of safeguard is that the presence of legal advisers may render the atmosphere of mediation somewhat more formal and adversarial, thus diluting the atmosphere which is said to foster agreement. Substantial extra costs may also result.

2.38

The mediated agreement should be reviewed by the court.

Such a legal safeguard is also somewhat problematic. If review is to have any teeth, the judge would have to be able to vary or reject the agreement, which may be at odds with the process of mediation. The view has also been expressed that judges are not well placed to detect and remedy unequal bargaining power:²¹

Mnookin and Kornhauser suggest two further possible advantages of judicial review of negotiated agreements. The first is that the spectre of court review means that the parties may deal with each other in a fairer way and “may be more likely to reach an agreement reflecting appropriate social norms”.²² The second is that the prospect of judicial review might improve the quality of negotiations from the child's perspective:

Mnookin and Kornhauser again question the reality of these arguments, in light of the fact that courts rarely overturn parental agreements and the minimal time devoted to scrutinising agreements.

2.39

Review of mediated agreements by legal advisers following mediation.

This is the most common safeguard, and is the practice following mediation in the Irish Family Mediation Service. Folberg suggests that given the high rate of settlement of family cases within the existing system, review of mediated agreements by legal advisers affords at least as much protection as judicial review:

If there is to be review of mediated agreements by legal advisers, there must be some adjustment on the part of legal advisers. Solicitors are accustomed to obtaining the maximum possible for their clients, whereas the notion underlying mediation is the reaching of agreement, without, as it were, exacting one's pound of flesh. It is pointless to undergo the process of mediation if the agreement reached is going to be ripped apart by legal advisers informing their clients that they could bargain for more. Considerable understanding of the process and advantages of mediation on the part of legal advisers is required if legal review of mediated agreements is to be a satisfactory and workable safeguard.

In this context, it is to be noted that the absence of independent legal advice would probably not, under the present law, be a ground for setting a mediated agreement aside. This is the position with regard to separation agreements in respect of which no independent legal advice was sought.²⁴

It might also be noted that the Advisory Committee on Family Mediation in Ontario (1989) felt that mediators should not draft the mediated agreement and then send it to independent lawyers for execution, but rather that the mediator should simply provide clients at the conclusion of mediation with a memorandum summarising their points of agreement and disagreement. The clients would then determine whose lawyer would take responsibility for the drafting of the final agreement. The Committee accepted that this might increase costs and perhaps even jeopardise the agreement, but preferred this to the risks inherent in mediator drafting which it saw as being dangerously close to providing legal advice.

The Code of Practice of the English National Family Conciliation Council also provides that “both parties should be encouraged to seek legal advice” and “both parties should be warned not to enter into an agreement without first seeking legal advice on its terms”. The conciliation service should send, as soon as possible after a referral from solicitors, a written acknowledgement to each solicitor, indicating the date of the first appointment and how long the conciliation process is expected to last. Where circumstances require and especially where the process is prolonged, the conciliator should send each solicitor an interim summary in terms agreed by both parties. At the end of conciliation, the conciliator should prepare for each party and their solicitors a summary of the outcome, marked “without prejudice”. This should recommend proposed arrangements, stating that these are subject to legal advice.

C. Financial Implications

2.40

It is anticipated that the most vociferous objections to the provision of a nationwide state-funded mediation service in Ireland will be on the basis of cost. Indeed, when this issue was raised in the discussions of the Working Group on Family Courts, it was generally agreed that the financial costs involved in the setting up of a comprehensive, cost-free, nation-wide mediation service in Ireland were prohibitive. Several of the participants suggested that a two-tiered system might be the best solution to this problem, i.e. a mediation service should be established nation-wide which would be means-tested and free for those who could not afford it, while alternative services could also be set up by a network of private mediators.

2.41

It should be noted that this issue has produced divergent views in England, despite the establishment of a committee to examine precisely the issue of cost-savings. The Robinson Committee focused on the financial implications of providing a nationwide conciliation service, and concluded that an out-of-court service would not be cost-efficient and that the most practical course was to attempt to base conciliation around an in-court model. The Newcastle Project also found that conciliation, whether court-based or independent, involves a significant addition to the cost of settling disputes.²⁵

2.42

Eekelaar and Dingwall have recorded three main objections voiced against the Robinson Committee's conclusions:

2.43

Financial concerns continued to be reflected in the Lord Chancellor's Department's statements on conciliation. In 1984, an invitation to tender was issued for a project unit to carry out the detailed studies recommended by the Robinson Committee. Its task was defined as comparing modes “primarily with a view to assessing and comparing their costs and benefits ... but with a view to attempting to access and compare the non-financial benefits of different schemes particularly for the parties and their families”, (emphasis added) This project was undertaken at the University of Newcastle-Upon-Tyne.

However, the Annual Report 1983–84 of the Lord Chancellor's Legal Aid Advisory Committee argued that there were grounds for supporting voluntary conciliation services from public funds:

Therefore, while costs are but one aspect of the complex equation involved in evaluating mediation, the calculation of costs may itself be a controversial matter.

D. Confusion And Overlap Between Mediation And Reporting

2.44

This issue has again been the focus of attention primarily in Britain because conciliation services based in the courts have tended to be provided by the probation service welfare officers. This issue has also been a matter of controversy in Michigan where the counsellor in charge of unsuccessful custody mediation may report to the court and submit his or her opinion as regards the appropriate outcome for the case.

2.45

There has been controversy in England and Wales as to whether conciliation can be combined with reporting to the court. Some County Courts have allowed welfare officers to undertake conciliation and then make recommendations to the court if no agreement is reached. The Booth Committee emphasised the difference between conciliation and welfare in their Consultation Paper in 1983.

2.46

It is certainly arguable that the principles of conciliation are violated if admissions or other information derived from conciliation are used subsequently to assist the court's decisions. In its Final Report, the Booth Committee recommended that the same welfare officer should not perform both tasks.²⁷ It has been argued that this raised problems in certain rural areas where there may be only one welfare officer to perform both functions. Nonetheless, a Practice Direction was issued in 1986 prohibiting a divorce court welfare officer who acts as conciliator under an in-court scheme from reporting to the court with respect to the same case.²⁸

E. Scope Of Mediation

Family violence

2.47

We have seen that the various mediation schemes differ in scope. Some deal only with custody and access issues, others include financial and property issues. One type of case, however, is usually rejected as unsuitable for mediation in any form. It is generally accepted that where a family dispute involves violence on the part of one spouse, mediation is not appropriate. This is because it is felt that the right to bodily integrity should not be compromised. Furthermore, it seems more appropriate that violent behaviour should be dealt with promptly and coercively, as through a court order, rather than through prolonged discussion. Thirdly, the imbalance between spouses where one is in fear of the violence of another may well render mediated agreement unsafe.

In June 1990, an Interdepartmental Committee on Family Law Violence in the province of New Brunswick published “Woman Abuse Guidelines”. That part of the report dealing with abuse in the context of mediation says at the outset:

2.49

The Report emphasises that court counsellors and mediators should not engage in any formal mediation proceedings with couples where there has been a disclosure of domestic violence. It follows this statement with the following remarks:

Comprehensive mediation

2.50

Another important question that arises as regards the scope of mediation is whether it should be confined to child custody issues or whether questions of finance and property should also be mediated. The findings of the Research Project Unit of the University of Newcastle-Upon-Tyne (1989) strongly supported the view that conciliation should not be restricted to child issues:

However the Unit went on to say;³¹

2.51

The Family Mediation Service in Dublin has been providing comprehensive mediation, that is mediation dealing with property and finance matters as well as child issues, almost from the outset. In their view this has never been a problem. A study comparing the advantages and disadvantages of comprehensive mediation with mediation on child issues alone has been carried out by the National Association of Family Mediation and Conciliation Services in Britain. (See Appendix 1, Mediation Services in Other Jurisdictions), and that study generally supported the value of comprehensive mediation.

The advantages of comprehensive mediation are as follows. The development of comprehensive mediation may result in mediation being taken more seriously by the public, the government and the legal community. Comprehensive mediation has the advantage that all issues arising on the breakdown of a marriage can be dealt with without the need for recourse to litigation. This avoids the argument that mediation constitutes an added cost in addition to the expense of litigation. Even where the sole issues in mediation appear to be custody or access, the agreements reached may be based on implicit expectations of specific property arrangements. For example, it may be agreed that one party will obtain custody of the children, on the implicit basis that this party will remain in the matrimonial home. When the property matter comes to court, however, the expectations may not be fulfilled. There is a danger that mediation which deals with one aspect of the dispute may result in defective agreements.

2.52

The Ontario Advisory Committee on Family Mediation noted:

2.53

An obvious difficulty with comprehensive mediation is that it involves the mediator in dealing with potentially complex financial matters which would require full financial disclosure and knowledge of property law. According to the Family Mediation Service this factor has not caused undue difficulty. If the legal issues become too complex the couples can refer to a solicitor as they arise. This involvement of lawyers provides an in-built legal protection. According to the NAFMACS, lawyers will almost inevitably become involved in comprehensive mediation but the cost will still be a third to a quarter of the expected cost of a fully litigated case.

2.54

The members of the Commission's Working Group on Family Courts were in favour of comprehensive mediation. Their view was that financial and property matters are inextricably linked with questions concerning children.

F. Coercion And Mediation

2.55

In our section on the Japanese mediation system,³³ we note that coercion in relation to mediation can take forms other than simply obliging the parties to participate in mediation. Here, however, coercion refers to whether parties should be obliged to attempt resolution of their dispute through mediation before they proceed to a court hearing.

2.56

A New Zealand commentator³⁴ suggests three reasons why coercion in relation to counselling and reconciliation procedures would be desirable:

2.57

However, there are strong arguments against the use of coercion in relation to mediation.

2.58

The issue of coercion is also linked with whether the service should be in-court or out-of-court. In-court services tend to be more coercive than out-of-court services. Referring to in-court conciliation in England, Lisa Parkinson has said:

On the other hand, she also makes the point:

She points out that while the aim of the latter scheme is to help the parties to settle matters, the court decides who may be present and the amount of time allowed. The process is under the court's control.

2.59

In Ireland, under section 5 of the Judicial Separation and Family Law Reform Act, 1989, there is an obligation on the applicant's and respondent's solicitor to advise them as to the possibility of resolving their difficulties by mediation. There is no obligation on parties to seek mediation and if they are unrepresented they will possibly not be aware of its existence or its advantages. In the High Court, some judges have begun enquiring in family law cases whether the parties have had recourse to mediation. This is perhaps due to a conviction that many of the cases reaching the courts should in fact have been settled.

2.60

The ethos of mediation under the Family Mediation Service is that it is voluntary, independent, separate from the court structure and even quasi-therapeutic. In this respect, there was general agreement among members of the Working Group on Family Courts that there should be a slightly changed emphasis to this approach, although views differed as to the extent of such change. Some members felt that mandatory mediation was appropriate to overcome the issue of pride in the refusal by some persons to participate in mediation; others were of the view that a judge should have discretion to order mediation.

G. Mediators

2.61

We have seen that a wide range of persons perform the task of a mediator in different schemes, and that the function of the mediator varies from scheme to scheme in different countries. For example, there is quite a difference between the role of a mediator in the Family Mediation Service in Ireland, and the Family Court Judge who chairs a mediation conference in New Zealand. We have seen that sometimes financial and property disputes are mediated by lawyers

or court registrars while the child related issues in the same case may be mediated by counsellors. Other solutions allow for lawyers to attend mediation sessions where property and financial issues are involved, as under the Order 24 conference in Australia.

2.62

In the case of lawyers acting as mediators, the Rules of Professional Conduct of the Law Society of Upper Canada provide:

2.63

One writer at least has put forward the view that some of the problems associated with the suitability of mediation to deal with financial and property disputes might be solved by having an interdisciplinary mediation team.

Folberg draws attention to a number of advantages that such an interdisciplinary team might have:

H. Privilege In Mediation

2.64

Mediation is an alternative to litigation and adjudication but may occur,

nonetheless, within a legal framework; legal proceedings may follow mediation or take place concurrently. The question arises of the use which may be made in such legal proceedings of statements made in the course of mediation.

2.65

In the context of marriage counselling it has been decided³⁹ that communications between spouses and a priest attract privilege. This arises from the public interest in supporting marriage and the family as expressed in Article 41 of the Constitution. The privilege is that of the spouses and may be waived by them.

2.66

Section 7 of the Judicial Separation and Family Law Reform Act, 1989, renders inadmissible in evidence in any court communications (written or oral) between a spouse and a third party who is assisting towards a reconciliation or agreement on the terms of separation, where proceedings under the Act have been adjourned for that purpose.

2.67

It is possible that the courts will extend privilege to statements made in the course of mediation in other contexts.⁴⁰ There is a strong public interest in fostering mediation. However, it is doubtful whether such a privilege could be regarded as absolute. There may, for example, be cases where the protection of a child from a serious threat of injury would justify a court in setting aside the privilege.

2.68

In England, the Court of Appeal in Re D (Minors)⁴¹ has decided that discussions in mediation in relation to disputes involving children are privileged to the extent that statements made by either party cannot be disclosed in proceedings under the Children Act, 1989. An exception arises in the rare case where a statement indicates that its maker caused or was likely to cause serious harm to the well being of a child. Within that narrow exception, the trial judge should admit the statement only if the public interest in protecting the child outweighed the public interest in preserving confidentiality. The Court of Appeal made it clear that the privilege exists as an independent head based on the public interest both in sparing children unnecessary suffering while encouraging the settlement of issues concerning them, and in reducing the burden of the cost and delay of litigation.

Views Of Working Group

2.69

Amongst members of the Working Group on Family Courts, there was general agreement that mediators should be professionals with expertise in human relations and law. A priority in setting up a mediation service on a nation-wide basis should be the training of personnel. It was also suggested that a team of mediators, both legal and psychological, to cover each case might be appropriate. The mediators would not necessarily have to work with the parties

at the same time; the parties could see each of them separately. Although it was acknowledged that such a system would be very costly, it was felt that these costs would be offset by a reduction in court cases and related costs.

PART 2: ARBITRATION

2.70

In March 1988, the Family Law Council of Australia published a detailed Report entitled Arbitration in Family Law, in which the Council recommended the establishment of a scheme of arbitration (as distinct from conciliation/mediation) in family law matters. This report was based on the Council's support for alternative dispute mechanisms which would “provide disputing parties with more control over the processes to be used in settling their own disputes and to avoid and minimise the legalism and formality of the traditional common law adjudicative process” (para 3.3). The Council noted significant developments in arbitration in civil cases in several jurisdictions and said that these should be applied to family law disputes.

At the outset, therefore, we must understand what the Council means by arbitration. The Council distinguished between arbitration and conciliation/mediation on the basis that arbitration results in a determination (“award”) which is legally binding on the parties, either because they agreed to be bound or did not exercise their right to a curial re-hearing. In this respect, arbitration is similar to court adjudication. The Council said that the major feature which distinguishes arbitration from other forms of alternative dispute resolution and brings it closer to traditional curial litigation is the greater degree to which the disputing parties relinquish their decision-making power than in those other forms. Like a Judge, the arbitrator's role is to make a decision which is imposed on the parties (para. 4.2).

2.71

However, arbitration was said to differ from court adjudication in several ways:

2.72

The Council distinguished between consensual and mandated arbitration. The terms refer to the basis of the arbitrator's authority. Consensual arbitration involves reference of the dispute by the parties themselves to an arbitrator for

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resolution. It is consensual because the parties themselves decide that the dispute should be resolved by arbitration. Usually, the agreement to submit to arbitration involves agreement to be bound by the arbitrator's decision. Mandated arbitration is arbitration arising independently of the agreement of the disputing parties. It may arise from the operation of legislation or a rule of law, or the law may give judicial authorities a discretionary power to order or mandate arbitration in particular cases.

2.73

It was envisaged that arbitration and the conciliation processes would co-exist, rather than that arbitration would replace conciliation. The co-existence of conciliation, litigation and arbitration reflected the Council's view that “the best overall system for dispute resolution is one that offers a number of viable alternatives” (page 10).

2.74

The Council listed the advantages and disadvantages of arbitration as follows:

Advantages

Disadvantages

2.75

To these might be added the argument that while arbitration saves public money, it increases the costs for the disputing parties, because they have to cover the costs of the arbitrator and accommodation as well as lawyer's fees. However, the system recommended by the council would be paid for out of State money. As to the relationship between arbitration and conciliation, the Council envisaged that mediation and conciliation would be the first stages in the dispute resolution process and that the parties would resort to arbitration if these failed to produce agreement (because mediation/conciliation are aids to negotiation while arbitration is ultimately an adjudicatory process).

2.76

It must be noted that the Council envisaged that certain types of case would continue to be appropriate for litigation only:

The Council, therefore, recommended that the arbitration system should co-exist with the curial system. It further recommended that it be court-annexed i.e. court administered and supervised.

2.77

We saw above that the Council drew a distinction between consensual and mandated arbitration. The Council recommended the introduction of a scheme of consensual court-annexed arbitration, which would allow parties to agree to be bound by the arbitrator's award without a right of rehearing, in certain family situations. However, it also recommended a mandated system of court-annexed arbitration for certain family disputes. It examined the issue of re-hearings after arbitration and recommended that parties to arbitration in either form (consensual or mandated) should be able to elect as of right to have a curial re-hearing.

In deciding the jurisdiction of each form of arbitration (consensual and mandated), the Council set out certain situations where, as a matter of public policy, arbitration should not be allowed and only a court should hear the matter:

The Council set out guidelines which would help the courts decide when they should mandate arbitration (i.e. in the absence of the consent of both parties):

Effect Of Award And Rehearings

2.78

In addition to recommending that a system of consensual arbitration be introduced in relation to certain disputes, the Council recommended that this scheme allow the parties to agree to be bound by the arbitrator's award without a right of rehearing in some circumstances, subject to certain safeguards. It also recommended that parties to either form of arbitration (consensual or mandated) be able to elect as of right to have a curial re-hearing. Parties would not be able to exclude the right to a re-hearing in disputes relating to child welfare matters. A court would be entitled to set aside an arbitrator's award which is deemed to be an order of that Court if it is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance. Such proceedings would have to be instituted within 12 months of the making of an order arising from the arbitrator's award, although the Court would have the discretion to extend this time period if satisfied that the interests of justice so require.

2.79

The Council recommended that the system establishing arbitration of family disputes should contain provisions enabling awards of arbitrators to become in appropriate circumstances orders of a Court, subject to safeguards

relating to appeals and/or rehearings by a Court. Where provision is made to allow parties to agree to be bound by an award, such agreement would have to be made effective by registration.

The Arbitrator

2.80

The arbitrator would be required to make his or her determination according to law. He or she would be allowed to relax the strict requirements of the laws of evidence on the consent of the parties. Standard sets of procedural rules should be available which the parties would be able to modify to suit their case. The arbitrator would be required to provide brief reasons for his or her decision so that the parties could decide whether or not to seek a rehearing. The arbitrator would enjoy an immunity similar to that given to a judge or registrar. He or she would have the power to refer to a Court any person who in his or her opinion may have committed the offence of contempt during the arbitration. The arbitrator would be under a duty to terminate proceedings if issues arise which are not available for arbitration and to refer the matter back to the court. The arbitrator would also have an unfettered discretion to state a case for the opinion of the Court.

2.81

Regarding qualifications, the Council envisaged that arbitrators would be persons qualified in the areas of law, social work, psychology, psychiatry, accountancy, education, or be a religious leader. However the “paramount qualification” would be the “ability to enjoy the respect of the parties to the arbitration”. The Council recommended a “process of accreditation for appropriately qualified persons”. The Attorney-General of the Commonwealth would have responsibility for the appointment of arbitrators to a panel.

Funding

2.82

Most significantly, the Council recommended that the government would be responsible for the payment of arbitrators in a court annexed system. Also, court facilities or other government premises would be available for cases where it was inappropriate to use the arbitrator's private office.

CHAPTER 3: PRE-TRIAL PROCEDURES AND DOCUMENTATION

(1) CONSOLIDATION OF TRIALS

3.01

One aspect of the problem of fragmentation of jurisdiction examined above in Chapter One is the inability of some litigants in family law proceedings to consolidate all issues of the same controversy within the one trial. A single marital breakdown situation may lead to a number of applications being brought in the courts, for example, for orders for protection, barring, separation, custody and division of property. Calls have been made, therefore, for provisions allowing different cases to be consolidated in a single trial.

Other Jurisdictions

3.02

An example of a provision allowing for consolidation of trials is to be found in New Zealand legislation. The Family Proceedings Act, 1980 deals, in its substantive part, with separation, validity of marriage, welfare of children and maintenance. Section 160 of this Act provides that an application under the Act may be joined with an application under the Guardianship Act, 1968 and the Matrimonial Property Act and that “it shall not be necessary to file separate applications”. Subsection (2) provides that a Court may hear and determine any proceedings under the same Act or under the Guardianship Act, 1968 and the Matrimonial Property Act, 1976 in any case where (a) all the proceedings are between the same parties, or (b) all proceedings are in respect of members of the same family. Subsection (3) provides that sub-section (2) applies whether or not any other person is also a party to the proceedings.

3.03

The Canadian Law Reform Commission recommended that rules of procedure be devised to enable all related matters to be consolidated for trial and heard by the same judge at one time, and that the rules should provide simple methods whereby all persons who may be affected by the disposition of

the issues may be made parties to the proceedings.¹

3.04

The Family Law Sub-Committee of the English Law Society examined the issue of fragmented treatment of divorce cases.² It said that one of the disadvantages of this system was the increased cost, both directly in money and indirectly because of increased time. It thought that a reduction in the number of separate hearings would bring about considerable savings and would produce two other benefits. The first was that a court which had before it at one time full information on all the inter-dependent aspects of a case would be better able to judge the relative importance of the various issues involved and the consequences of its decision on any one aspect for the others. The second benefit was that the need to prepare a case fully before filing a divorce petition would discourage dilatoriness of the part of the petitioner – a common cause for delay in divorce proceedings. The Sub-Committee recommended that the rules on divorce procedure allow the presentation of a complete case allowing all issues to be decided by the court.

(2) COURT DOCUMENTS

Ireland

Commencing Proceedings In The High Court

3.05

Family matters in the High Court are commenced by way of two main documents. Until 1990, all proceedings in matrimonial causes and matters were commenced by filing a petition, which is in Form No. 1 Appendix L of the Rules of the Superior Courts. However Statutory Instrument No. 97 of 1990 (RSC (No. 1) 1990) came into force on May 1 1990. This provides that a Family Summons shall be used to commence proceedings under the following statutes:

There is one exception to the rule that proceedings under these Acts are to be commenced by way of Family Summons, namely an application pursuant to section 6A(3) of the Guardianship of Infants Act, 1964 (as inserted by s.12 Status of Children Act, 1987) which is by motion on notice to the mother.

3.06

The endorsement of claim is entitled “Special Endorsement of Claim” and must state specifically, with all necessary particulars, the relief sought and the grounds upon which it is sought, and a sufficient statement of the facts alleged to establish the right to such relief, together with all such ancillary relief and the grounds upon which it is sought. Indeed, the need for clarity in the drafting of the special endorsement of claim was emphasised in the decision of O'Hanlon J. in H. v H. In affirming the decision of the Master to strike out the plaintiff's summons on the grounds, inter alia, that the summons was too lengthy and contained matters unnecessary in the Special Endorsement of Claim, O'Hanlon J. noted that:

In practice, however, despite this exhortation, the new Rules with regard to the form of affidavits have resulted in affidavits becoming very long, in that they tend to refer to every possible legal and factual permutation – even matters which will not usually be considered at the trial. On the other hand the new Rules have reduced the likelihood of inflated claims and inflammatory language appearing in the affidavit.

3.07

Rule 3 provides that in proceedings pursuant to Rule 1(3), (5), (6) or (7) an affidavit verifying such proceedings or in reply thereto shall contain the following:

Thus, the new Rules provide that details of all financial and property matters should be set out immediately. Whilst in theory this would seem to be a good idea, by the time the case comes on for hearing the situation may have changed substantially. Also this can cause difficulty for the applicant in that he or she will have to make up his or her mind at a very early stage as to what exactly is to be claimed. This is intended to encourage a more realistic approach to litigation and prevent greed, thereby reducing the inflammatory effect of the document. In practice, the result is that the initial documents will tend to plead every relief possible, making it difficult for the party receiving the document to know what is realistically sought or expected of him/her.

3.08

The affidavit must exhibit the certificate required under s.5 or s.6 of the 1989 Act. This certificate is in the following form:

CERTIFICATE OF COMPLIANCE WITH SECTION 5 OR (AS THE CASE MAY BE) SECTION 6 OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT.

1989

XY of the estranged spouse of ZY

1. I, AB, a solicitor of (firm of solicitors) situate at (insert address) do certify that I have discussed with the above-named XY the possibility of his or her reconciliation with ZY and that I have given him/her the names and addresses of the following persons who are qualified to help effect a reconciliation between spouses who have become estranged:–

[Set out here the names and addressed of such qualified persons.]

2. I also hereby certify that I have discussed with the above-named XY the possibility of engaging in mediation to help effect a separation on an agreed basis with ZY and that I have given to him/her the names and addresses of the following persons and organisations qualified to provide such a mediation service:–

[Set out here the names and addresses of such qualified persons and organisations.]

3. I further certify that I discussed with the above-named XY the possibility of negotiating and concluding a separation deed or written separation agreement with ZY.

4. I further certify that I believe that no application has been made by the above-named XY for a decree of judicial separation (or in the case of a solicitor acting for a respondent) I hereby certify that having received instructions from the above-named respondent ZY on the ........day of .......19.. that I have discussed the above mentioned matters with ZY as soon as possible thereafter.

Dated the day of 19..

Signed

(Name and address of Solicitor)

Proceedings under rule 1(3), (5), (6) and (7) are as follows:

3.09

Rule 12 provides that an application pursuant to s.22 of the Judicial Separation and Family Law Reform Act, 1989 should be made by motion on notice supported by affidavit. Rule 13(1) provides that an order pursuant to s.11 or s.29(2)(a) of the Judicial Separation and Family Law Reform Act, 1989 may be applied for ex parte in urgent cases. Rule 13(2) provides that applications under section 13 of the Act for maintenance pending suit, and all applications under section 29, should be made by motion on notice grounded on an affidavit setting forth particulars of the financial or other relief claimed or granted, and where applicable particulars of the disposition or transfer of property done with the intention of defeating the claim for financial relief, together with documents or other exhibits supporting such claims.

3.10

Proceedings in the High Court other than those commenced by the Family Summons continue to be commenced by petition under Order 70 RSC.

Commencing Proceedings In The Circuit Court And District Court

3.11

The relevant forms are scattered throughout a number of statutory instruments. The examples given here relate to the bringing of maintenance proceedings under section 5(1) of the Family Law (Maintenance of Spouses and Children) Act, 1976.

DISTRICT COURT [FL (MSC) ACT 1976] RULES 1976

S.I. No. 96 of 1976

General heading to be used on all forms:–

SCHEDULE OF FORMS

AN CHÚIRT DÚICHE THE DISTRICT COURT

SCHEDULE A

Rule 7

Form 1

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976

section 5(1)(a)

MAINTENANCE SUMMONS

District Court Area of

District No.

Applicant

Respondent

WHEREAS a complaint has been made by

the above applicant

* residing

*carrying on profession, business or occupation

at

†(in court area and district aforesaid)

that you

the above named respondent

*residing

*carrying on profession, business or occupation

at

†(in court area and district aforesaid)

being the spouse of the said applicant have failed to provide such maintenance as is proper in the circumstances for the said applicant

†[and the dependent children of the family namely

born on

born on

under the age of 16 years]

†[and born on

who has attained the age of sixteen years and is under the age of twenty-one years and who is †(will be) receiving full-time education or instruction at an educational establishment]

†[and born on

who has attained the age of sixteen years but who is suffering from mental or physical disability to such an extent that it is not reasonably possible for him to maintain himself fully]

THIS IS TO COMMAND YOU to appear on the hearing of the said complaint at the District Court at in the court area and district aforesaid on the day of

19, at .m.

Dated this day of 19.

Signed

Justice of the District Court,

Peace Commissioner, or

District Court Clerk

To

of

(the above named respondent)

(*Delete whichever inapplicable)

(†Delete where inapplicable)

**********

RULES OF THE CIRCUIT COURT (No. 6) 1982

S.I. No. of 1982

FORM NO. 3

AN CHUIRT CHUARDA

(THE CIRCUIT COUR

Circuit

County of

Record No

APPLICATION

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT, 1976, SECTION 5(1)(a)

BETWEEN

A.B.

APPLICANT

and

C.D.

RESPONDENT

TAKE NOTICE that the above named Applicant of in the County of##hereby applies to the Court sitting at, pursuant to section 5(1)(a) of the above Act for an Order that the Respondent do make to the Applicant periodic payments for the support of (a) the Applicant and each of the dependent children of the family for such period during the lifetime of the Applicant of such amount and at such times as the Court may consider proper and for an Order providing for the costs of this Application.

AND TAKE NOTICE that the Applicant will rely upon the following matters in support of the Application:

AND TAKE NOTICE that this Application will be mentioned before the Court on the day of 19 , or on the first available day thereafter and shall be heard on that day or on such date as the Court may fix for the hearing thereof.

AND TAKE NOTICE that if you intend to dispute the Applicant's Claim you must within four days of the service of this Application on your file

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with the County Registrar in the Circuit Court Office at an Answer in the form prescribed by the Rules of the Circuit Court.

Dated the day of 19

Signed

(Applicant or solicitor for Applicant)

Address:

To: (C.D.)

(Respondent)

Of

(Address)

(a) Delete the words “the Applicant and” where no claim is made on behalf of the applicant

(b) Here identify the Church or Registry Office at which the marriage ceremony was performed.

Other Jurisdictions

3.12

Samples of the forms used in the New Zealand Family Courts are set out in Appendix 2 for the purpose of comparison. It should be noted that the forms are specific to each type of case and are phrased in relatively clear terms. In addition, the forms explicitly instruct litigants not to provide details as to every aspect of the case so as to limit the inclusion of acrimonious material.

Previous Proposals For Reform In Ireland

3.13

The Joint Committee on Marriage Breakdown (1985) inspected the documents used in family law cases and described them as “generally complex and intimidating in nature and using a type of language and format which is off-putting and unintelligible to most people”. Even District Court Forms, which were shorter and easier to understand, were open to criticism in that little or no information was given as to the nature of the case that a person will have to meet. The Committee recommended that one type of form should be used for all family matters, which would set out:

3.14

In 1992 the County Registrar for Dublin approached the Family Lawyers Association and asked them to submit a draft for a new set of Circuit Court Rules for family matters. A sub-Committee was set up by the Family Lawyers Association to draft the Rules and submit the draft to the Department of Justice and the Rule Making Committee. The Rules drafted are accordingly being proposed by the County Registrar for Dublin and were at the time of writing being redrafted. The Rules endeavour to facilitate a more efficient and speedy hearing of family court cases. In particular the draft Rules take on board the suggestion made in an early draft of this Consultation Paper that the present method of pleadings could be improved by the adoption of clear and concise language in the initial form, instructing the recipient as to the case he/she will have to meet. In particular the document should detail the remedy being sought; the grounds on which the application is based and the steps which the recipient should take.

Conclusions

3.15

The Commission tentatively suggests that the present method of pleadings in the High Court could be improved by the adoption of clear and concise language in the initial form, instructing litigants with regard to the particular remedy being sought, the grounds on which the application is based, and the steps which litigants should take. By limiting the form in such a manner, the inclusion of inflammatory material may be avoided.

Listing Of Family Law Cases

3.16

In February 1993 Costello J. issued a practice note in family law cases in the High Court in Dublin. In essence this provides for a call over on a Friday for the cases listed for the following week. Barristers should be present to say whether their case is ready to go on for hearing or not; if a listing is rejected due to unpreparedness another case may take its place in the list. Previously family law cases were only given listings on the day of their trial. Now, if a case can be brought into court at short notice, or if it is of a very urgent nature and deals only with net issues, it can be dealt with at three days notice. The Family Lawyers Association are making representations to amend this practice to one of calling over cases to be heard in two weeks instead of for the following week in order to give litigants more time to prepare.

CHAPTER 4: THE CONDUCT OF FAMILY PROCEEDINGS

4.01

In many jurisdictions throughout the common law world, there have been proposals for change in regard to the conduct of family law proceedings. Various aspects of these proceedings have been criticised for being confusing and unsatisfactory and for aggravating the frustration and distress often associated with a family dispute. Moreover, the procedural aspects of family law proceedings may have a tangible effect on the practical working of substantive laws. The purpose of this chapter, therefore, is to focus on certain key issues that arise in the conduct of family law proceedings in Ireland. Rather than attempting to provide an exhaustive account of all the procedural aspects of such proceedings, the Commission has chosen particular issues which were considered to be of key importance by the Working Group on Family Courts. These include an examination of the appropriate form of family proceedings, representation of children, and the extent to which the proceedings should be publicly accessible.

(1) THE FORM OF FAMILY LAW PROCEEDINGS

(a) Adversarial or inquisitorial procedures?

4.02

In general, there are two separate and distinct forms of court proceedings, viz. adversarial and inquisitorial proceedings. The adversarial procedure is the system of law which operates in most common law countries. It is a system which is premised on the view that the truth is best elicited when two sides to a dispute pitch their wits and skills against each other in eliciting evidence; and where the judge's role is much diminished insofar as she or he is not permitted to come into the arena by taking over the examination of witnesses. Thus, the adversarial system has been described as follows:

4.03

Inquisitorial proceedings, on the other hand, predominate in civil law countries. Their essential feature is that the judge is given an investigative role and is not confined to adjudicating upon the evidence presented by the parties. Rather than casting the proceedings as a duel, the inquisitorial system is based on a cooperative quest for the objective truth in a dispute. The inquisitorial system has been defined as follows:

Ireland

4.04

While Irish family law cases are conducted according to the adversarial procedure, specific inquisitorial-type powers may be conferred on judges. For example, under section 11 of the Guardianship of Infants Act (as amended by section 40 of the Judicial Separation and Family Law Reform Act, 1989), the court may, in proceedings for judicial separation, of its own motion give directions to procure a report from such person as it may nominate on any question affecting the welfare of an infant. The court must have regard to the wishes of the parties, but is not bound by them. The court may receive the report in evidence at the proceedings and may cross-examine the person making the report as witness.³

4.05

Section 27 of the Child Care Act, 1991, enables the court, of its own motion or on the application of any party to certain proceedings concerning a child under the Act, to procure a report from any person affecting the welfare of the child. A copy of any report must be made available to counsel or solicitor representing each party in the proceedings, or, if any party is not represented, it is to be made available to that party. The reports may be received in evidence at the proceedings and the person making the report may be called as a witness.

4.06

Section 20 of the Child Care Act, 1991, confers on the court a power of a more far-reaching nature. It provides that if, in proceedings under the Guardianship of Infants Act, 1964, or the Judicial Separation and Family Law Reform Act, 1989, or any other proceedings for the delivery or return of a child,

it appears to the court that it may be appropriate for a care order or a supervision order to be made, the court may adjourn the proceedings to enable the health board to investigate the child's circumstances. This may be done irrespective of the wishes of the parents. It creates a power that clearly goes beyond the adversarial nature of proceedings in that the court is not acting or adjudicating upon the wishes or proposals of the parties.

Some Other Jurisdictions

England

4.07

The Finer Committee pointed out that certain aspects of English Family Law already had inquisitorial features. In the divorce jurisdiction, for example, the court is charged with the duty of being “satisfied” that it could grant relief, which involves, in appropriate cases, a duty to enquire into matters which may not be disputed by the parties. Similarly, in child custody cases, the court has to have regard to the “paramount interests” of the child – a consideration which is not necessarily determined by the views of the parties even if their views coincide. The Committee rejected the idea of any further inquisitorial element in family law cases. By contrast, the Family Law Sub-Committee of the Law Society in England has recommended the adoption of an inquisitorial system in family proceedings.⁴ It envisaged that the court would be able to conduct its own examination of the parties or witnesses, and that in giving judgment it could select a course of action other than that required by either party, if this seemed desirable.

4.08

One of the Sub-Committee's reasons for proposing an inquisitorial-type trial was that it would reduce the competitive element in the trial and emphasise instead the making of fair arrangements and ensuring the welfare of children. A second reason was that tax, welfare and social security matters were often important issues, and the court should be able to ensure that the best arrangements were reached even if the spouses were unable to adduce expert evidence. The Sub-Committee accepted that the inquisitorial process could be longer because of the Court's duty to investigate, but pointed out that the consolidation of trials (i.e. one hearing of all matters related to one particular family dispute) would reduce overall hearing time.

Canada

4.09

The Canadian Law Reform Commission considered that “...[i]n general the adversary approach promotes a ritualistic and unrealistic response to family problems”⁵ and that “... [p]leadings and procedures should stay away from the traditional adversary or fault-oriented approach”.⁶ By contrast, the Law Reform Commission of Ontario has recommended the retention of adversary procedures

in family law cases:

New Zealand

4.10

The New Zealand Family Courts are armed, under the Family Proceedings Act, 1980, with quasi-inquisitorial powers, including the power to call as a witness any party to the proceedings, or the spouse of any such party. A witness called by the Court has the same privilege to refuse to answer any question as when called by a party to the proceedings. The witness called by the Court may be examined or re-examined by the Court, or by any barrister or solicitor assisting the Court, and may be cross-examined by or on behalf of any party to the proceedings, or a barrister or solicitor representing a child involved in the proceedings. The expenses of any witness called by the Court are paid out of monies appropriated by Parliament.

Previous Proposals For Reform In Ireland

4.11

The Joint Committee on Marriage Breakdown recommended that the manner of hearing, in which each side in a case is responsible for presenting its own case, should continue. However, family law judges should be given a slightly more inquisitorial role. This would be achieved by giving them the power to direct that further evidence other than that produced by the parties be heard by the court.⁸

4.12

The Law Reform Commission addressed the issue of adversarial procedures in family law cases in the Report on Divorce a Mensa et Thoro and Related Matters:⁹

Conclusions

4.13

The main arguments in favour of retaining the traditional adversarial system in the conduct of family proceedings would appear to be twofold. First, the adversarial approach is said to be the most effective way to test the credibility of a witness's evidence by virtue of the process of cross-examination and examination-in-chief.¹⁰ Second, the adversarial system mitigates the risk of excessive judicial interference in the conduct of a family law case. The main arguments against the adversarial system in the context of family law are that it may have a further polarising effect on the parties, and will not always provide the court with the full range of facts which it needs to make informed decisions in areas such as financial provision and child custody. Also, to work effectively, the adversarial system is heavily dependent on the skill and preparation of lawyers on both sides.¹¹ The proper balance may best be achieved by maintaining the adversarial system, while continuing to supplement it by conferring specific powers of an inquisitorial nature on judges. We proceed to a consideration of one such power.

(b) Admission of reports

4.14

One example of a judicial power which may be considered appropriate in family law proceedings is the power to order a report from a person or agency on a particular issue with a view to assisting the court in making the relevant order. As we have seen in the previous section, there are only two provisions in Irish Law that specifically empower a court to order a report to assist it in making a decision. These are section 40 of the Judicial Separation and Family Law Reform Act, 1989, which confers on the court the power to order a report

on any question affecting the welfare of an infant; and section 27 of the Child Care Act, 1991, enabling the court to order a report with respect to any question regarding the welfare of a child. There is no provision in Irish law granting the power to a court to order a report from an expert or agency in the course of maintenance proceedings.¹²

Other Jurisdictions

Australia

4.15

Section 62A of the Family Law Act, 1975, as amended, provides that in any proceedings under the Act in which the welfare of a child under the age of 18 years is relevant, the court may direct a court counsellor or welfare officer to furnish to the court a report on matters relevant to the proceedings. The court may make orders or give further directions as it considers appropriate in relation to the preparation of the report. A report furnished to the court in this way may be received in evidence in any proceedings under the Act. The court is not obliged to request a report in every case in which the welfare of a child is relevant. The court may direct a party or child to attend upon the person preparing the report, and disobedience of such an order may lead to contempt proceedings. The procedure is not confined to custody or access proceedings. The court has a wide discretion as to what matters the report should contain. The practice of different judges varies considerably. Nonetheless, the report must be relevant to the proceedings. The court should have regard to the fact that the ordinary rules of evidence will apply at the trial and should not ask the reporter to pursue irrelevant matters.

4.16

The report may be received in evidence at the discretion of the court. It was held in In the Marriage of Mulcahy¹³ that the court has a discretion to receive the report and make it available to counsel but not to the parties. However, section 62A of the Family Law Act, 1975 is open to the alternative interpretation that the court may not act on such reports unless they are received in evidence in the presence of the parties in the ordinary way.

4.17

The report itself is in writing, but the court may permit oral examination and cross-examination of the reporter. The reporter is the witness of the court and not of either party. The principle that a judge should not allow any person to communicate with him or her in the absence of the parties or their legal representatives applies to court counsellors.

Canada

British Columbia

4.18

Section 15 of the Family Relations Act, 1979, (R.S.B.C. 1979, c.121)

empowers the court in proceedings under the Act to direct an investigation into a family matter by a person who has had no previous connection with the parties to the proceeding, or to whose investigating each party consents; and where the person is a family counsellor, social worker, probation officer, or other person approved by the court for the purpose. The report may not be brought before the court unless it has been served on every party to the proceedings 24 hours in advance. In addition, it should be noted that the Family and Child Service Act, 1979, (R.S.B.C. 1979, c.119, section 6(3)) enables the family advocate, where she or he suspects that a child is abandoned, deserted or maltreated or otherwise in need of protection, to request a report from any person whom she or he believes to have relevant information.

Ontario

4.19

In Ontario there is the Official Guardian ad litem of infants.¹⁴ The Matrimonial Causes Act, (R.S.O. 1970, c.265) section 6, as amended by the Matrimonial Causes Amendment Act, (R.S.O. 1978, c.2) section 83, provides that the Official Guardian shall cause an investigation to be made and shall report to the court on all matters relating to the custody, maintenance and education of the child, where in a petition for divorce or an action of annulment there is a child under the age of 16, or of 16 or 17 years and engaged in a full-time education institution or unable through illness or infirmity to earn a livelihood. The Act allows the Official Guardian to engage a person to make an investigation on his or her behalf. The report may be received in evidence after the investigator has verified it by affidavit. Where the facts in the report are disputed, the Official shall, if directed by the court, and may, when not so directed, attend the trial and cause the person making the investigation to attend as a witness.

New Brunswick

4.20

The Judicature Amendment Act, 1979 (S.N.B. 1979, cc.36, section 11.4(1)) provides that upon ex parte application, or on his or her own motion, a judge of the Family Division may direct a family counsellor, social worker, probation officer or other person to make a report concerning any matter that in the opinion of the judge is a subject of the proceedings. A related power is provided for in the Child and Family Services and Family Relations Act, 1980, (S.N.B. 1980, cc.2.1) under which the court may, in any proceedings under the Act that affects a child, require that a child, parent or any other person living with the child undergo psychiatric, psychological, social, physical or any other examination or evaluation specified by the court prior to or during a hearing. In the event of a refusal or failure of a person to participate, the court may draw such inferences as appear to be warranted in the circumstances.

Newfoundland

4.21

Newfoundland appears to have been influenced by the British Columbia provision as to reports. The District Court of St. John's in Newfoundland is served by a Unified Family Court. Section 16 of the 1977 Act Respecting the Creation of a Unified Family Court provides that upon an ex parte application, the court may direct a person who (1) has had no previous connection with the proceedings and (2) is a family counsellor, social worker, probation officer or other person appointed by the court, to make a report on a party to a family matter or any other person who in the opinion of the court is associated with the family matter. A copy of the report must be served on every party to the proceedings not less than 24 hours before it is presented.

England

4.22

Under section 12(3) of the Domestic Proceedings and Magistrates' Court Act, 1978, a Magistrates' Court may at any stage of proceedings in which children under 18 are involved, request a local authority to arrange for an officer of the authority to make to the court a report, orally or in writing, with respect to such matter as the court may specify or may request a probation officer to make such a report to the court. The court is empowered to take account of any statement contained in the report or included in the evidence of the person making it notwithstanding any enactment or rules of law relating to the admissibility of evidence. However, nothing may be included that was said by either party to the marriage in an interview at which a probation officer was present with a view to the reconciliation of the parties, unless both parties consent. If the report is in writing, a copy must be given to each party to the proceedings or their counsel or solicitor either before or during the hearing.

4.23

Under section 7(1) of the Children Act, 1989, in proceedings in which the court is considering a question with respect to the child under the Act, it may ask a probation officer or a local authority to provide a report on the child's welfare and specific matters relating to the child's welfare. According to section 7(4) statements in the report and any evidence given in respect of the matters referred to in the report will always be admissible in evidence, even if a rule of law otherwise excludes it. In addition, a guardian ad litem appointed on behalf of the child¹⁵ is authorised under section 41(2) of the Act to report to the Court; and under section 41(8), the High Court may ask the Official Solicitor to provide a report.

Conclusions

4.24

There was general agreement among the Working Group on Family Courts that the traditional use of reports, whereby each party obtains an expert to prepare a report as part of that litigant's case, was often unproductive and costly. It was recognised that there were certain advantages to the idea of

augmenting the present position by statutorily empowering a judge to order an investigation and report in certain family law proceedings, e.g. maintenance proceedings. It was recognised that the use of such procedures should be at the discretion of the judge. In addition, it was felt that infringement of the hearsay rule could only be justified if the report is furnished to all parties to the proceedings, and all parties are given an opportunity to cross-examine the person who has prepared the report as regards its content and the sources of information used in its preparation.

(2) FORMALITY

4.25

A related issue in this context is the extent to which proceedings in family law matters should be conducted in a formal or informal manner. In Ireland, there have been a number of recent legislative provisions aimed at reducing the formality of family law proceedings. Section 33(1) of the Judicial Separation and Family Law Reform Act, 1989, for example, provides that Circuit Family Court proceedings shall be “as informal as is practicable and consistent with the administration of justice”. Section 33(3) provides the same with respect to family law proceedings before the High Court, and section 45(1) with respect to proceedings under a number of family law statutes in the District Court. Section 29 of the Child Care Act, 1991, provides that care proceedings shall be heard in private and shall be as informal as possible. Another positive step which has been taken in Ireland to reduce the formality of family hearings is the abolition of the wearing of wigs and gowns.¹⁶

Reservations As To Informality Of Procedure

4.26

Informality of procedure may be interpreted in any of three ways. First, it might mean simply that the proceedings should not be hostile or intimidating and that judges and counsel should be sensitive in their handling of litigants in family law cases. One Australian writer suggests that changes of this nature may be challenging for judges accustomed to traditional court procedures:

4.27

Second, the direction that proceedings be conducted informally might be seen as turning family proceedings into inquisitorial proceedings. This was the view taken by at least one Australian judge in relation to a similar provision in Australian legislation. Section 97(3) of the Family Law Act, 1975, provides that in proceedings under the Act, the Court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted. When the Act first came into effect, this provision prompted the question whether proceedings would in the future be conducted according to the traditional adversarial procedure or by way of enquiry by the judge. One judge, Watson J., was of the opinion that the nature of family proceedings under the Act had been changed. However, the view that proceedings under the Act were to be inquisitorial rather than adversarial was rejected in R v Watson; Ex parte Armstrong¹⁸ in which the High Court made it clear that section 97(3) did not authorize a judge to convert proceedings under the Act into an inquiry. The court held that judges of the Family Court exercise judicial power and must discharge their duties judicially, clearly meaning in accordance with the established rules of evidence and procedure.

4.28

Third, informality of procedure might be seen as being synonymous with the erosion of the normal rules of evidence in civil cases. As one writer has warned:

In the United States, for example, informality of procedure in juvenile cases led to the erosion of due process and other resultant problems which had to be eradicated in the leading Supreme Court decision of In Re Gault.²⁰ In that case, a 15 year old boy was taken into custody without notice to his parents, and was accused of making an obscene telephone call. The petition filed at the hearing the following day was not served on or shown to the boy or his parents. The petition made no reference to the factual basis for the judicial action, stating only that the boy was a delinquent minor. The complainant was not present at the hearing. No-one was sworn at the hearing. Neither the boy nor his parents were notified of his right to be represented by counsel. The boy was committed to custody for a maximum of six years. The boy's petition for habeas corpus before the Maricopa County Superior Court, Arizona, was subsequently dismissed, which decision was later affirmed by the Supreme Court of Arizona. On appeal, the Supreme Court of the United States reversed the decision, holding that the boy had been denied due process of law.

4.29

Perhaps, the lesson to be learned form Gault and applied to family law cases is that in advocating flexibility of procedure, we should not lose sight of basic procedures. As Mr Justice Fortas in Gault pointed out”... [d]ue process of law is the primary and indispensable foundation of individual freedom”. This should not be taken as suggesting that there should be no changes in procedures in family cases, but rather as encouraging precision in the recommendations for reform. A friendly and helpful atmosphere in family law cases is not incompatible with due process. It is suggested, that if flexibility in family law cases is desired, specific changes of procedure should be enumerated rather than a blanket “informality” mandate. On the other hand, if a change in atmosphere is what is really meant by the term “informality”, the way of altering this is by choosing appropriate and sensitive judicial personnel.²¹ New Zealand, in particular, would appear to have struck a reasonable balance. There, informality has been achieved by a combination of specially appointed judges, early counselling efforts and trials conducted “in such a way as to avoid unnecessary formality” (Family Courts Act, 1980 section 10) together with an express statutory prohibition against the wearing of wigs and gowns.

(3) REPRESENTATION OF CHILDREN IN FAMILY LITIGATION

4.30

A movement in favour of the legal representation of children in family litigation has been in evidence in recent years. This is the result of increased understanding of the psychological development of children and an awareness that the interests of a child are not necessarily identical at all times with those of his or her parents. The main questions that arise in this context are the types of situations in which the child should receive separate representation, if any, and the identity and role of the person carrying out such representation.

Ireland

4.31

The Law Reform Commission has already considered the issue of representation of children in the context of care proceedings in its Consultation Paper and Report on Child Sexual Abuse. In the Consultation Paper,²² it was suggested that provision should be made for the appointment by the justice of an independent representative for the child where this appeared to be necessary in the interests of the child. It was envisaged that in many cases the justice would take the view that the child's interests were represented adequately by the health board. However, some cases would arise where an independent voice on behalf of the child would assist the court in achieving a balanced view, for example in the case of an older child who has strong objections to the plans being made for him or her by the Health Board.

4.32

The above provisional recommendation was affirmed by the Law Reform

Commission in its Report on Child Sexual Abuse.²³ Its final recommendations in this area were as follows:

4.33

Since then, the Child Care Act, 1991, has been enacted containing certain provisions relevant to the child's voice in court. Section 24 provides that in any proceedings under the Act relating to the care and protection of a child, the court shall (a) regard the welfare of the child as the first and paramount consideration, and (b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child. Section 25 empowers a court to make a child a party to all or part of care proceedings and to appoint a solicitor to represent the child in any case where the court is satisfied that this is necessary in the interests of the child. Where a solicitor is appointed by the court, the costs and expenses incurred will be paid by the health board involved in the proceedings unless the court orders otherwise. Section 26 empowers a court to appoint a guardian ad litem for a child in care proceedings where the court is satisfied that this is necessary in the interests of the child. The cost incurred by a person acting as a guardian ad litem will be paid by the health board involved in the proceedings unless the court orders otherwise. Where a child with respect to whom a guardian has been appointed subsequently becomes a party to the proceedings, the order appointing the guardian will cease to have effect. Although not provided for initially in the first draft of the Child Care Bill as approved by the Dáil, this section incorporating the notion of a guardian ad litem was inserted following the contributions made by a number of Senators during the Committee Stage in Seanad Éireann.²⁴

4.34

At the time of writing, the Child Care Act is being brought into operation piecemeal and the Department of Health is still working on the details of the rules and regulations necessary to bring section 26 of the Act into effect. Hence, the practical implementation of section 26 remains to be seen. Nonetheless, some insight into the prospective role of the guardian ad litem can perhaps be gleaned from the statements made by the Minister for State, Mr. Noel Treacy, during the final reading of the Bill in the Dáil:

According to Mr. Treacy, it was envisaged that while the health board will be responsible for the expenses of the guardian ad litem, it may recoup its expenses from a party or parties to the proceedings if it can be proved conclusively that those parties have the necessary resources to contribute to the costs.²⁶

The United Nations Convention On The Rights Of The Child

4.35

The United Nations Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November, 1989, and has been ratified by Ireland. Article 12 of the Convention provides as follows: