The 1980s in England and Wales saw a critical re-appraisal, new thinking and reform of the family justice system. The Law Commission during that time had reviewed child care law and this had acted as a catalyst to concentrate official and professional thinking about the need to rationalise the court structure. In addition it heightened awareness that Family Law was a distinct inter-disciplinary branch of civil jurisprudence, a point fully appreciated by Lord Mackay of Clashfern, a former Lord Chancellor, who commented that, “in family work, knowledge of the black letter of the law did not take one very far” and he urged all those involved—judges, social workers, lawyers and medical experts—to develop common perspectives and a mutual understanding of each other’s disciplines.
Despite all the good intentions and the rhetoric, almost 20 years later a further review of the family justice system (Norgrove Report 2011) took place and found, inter alia, that there was no set of shared objectives to bind agencies and professionals to a common goal and to support joint working and planning between them. It also found that family justice did not operate as a coherent managed system and recommended:
- The creation of a dedicated, properly managed family justice service;
- Improved judicial leadership;
- Improvement to case management;
- That the core aim should be to support the delivery of the best possible outcomes for those who come into contact with the family justice system, in particular children;
- The need to reduce delay;
- That there be a competent and capable workforce, through effective workforce development.
There was clear evidence in the Norgrove Report that the current family law structure was inadequate to deal with the ever-increasing complexity of family law issues coming before the courts. These issues included complex medical and psychological evidence proffered by experts in relation to children and their parents; child abduction issues; multi-cultural issues; a rise in the number of litigants in person—these latter cases taking longer to conclude, thus leading to a delay in the decision-making process.
In Australia, the Family Law Act 1975 established the Family Court of Australia. The Act introduced a no fault divorce and set up a specialised family court complete with court-attached conciliation and counselling. The impetus for the establishment of a separate court to deal with matrimonial causes came from the Senate Standing Committee on Constitutional and Legal Affairs as the Committee had emphasised the need to establish a court which could deal exclusively with family law matters. Under the FLA 1975, judges are appointed to those specialist courts for their suitability to deal with matters of family law by reason of training, experience and personality. The family court of Australia has a dual role in counselling and mediation, known as “timely dispute resolution”. There have been significant amendments to the FLA over the years, primarily as a result of reviewing the judicial system and its operation in practice and challenges to the constitutionality of the Act.
In an attempt to improve outcomes and reduce delays in children matters, the courts in Melbourne piloted in 1998 what is commonly known as the Maggellan Project. The project involved early intervention and special case management of cases involving serious abuse of children. These cases are dealt with by a designated team of Judges, Registrars and Counsellors. Thorough investigations were carried out by relevant organisations early in the process and all the children were legally represented in court. This pilot Project, was rolled out between 2003 and 2006 and extended to all States and territories, except Western Australia. The family courts in Australia are regularly reviewed and evaluated by, amongst others, the Australian Institute of Family Studies and this is seen as an invaluable tool in measuring the workings of the family justice system there.
In 2008, a report commissioned by the then Attorney General set out a possible framework of governance options to achieve a more integrated system of case management practices across the family law jurisdiction, with changes in judicial structures recommended. The report concluded that there was a significant overlap of duplication of administration structures across the Family Court. The report concluded that the most effective model for the delivery of the court and family law would be a single family court, with two separate judicial divisions, serviced by a single administration. These recommendations to some extent mirrored the findings of our nearest neighbours in the Norgrove Report (2011).
Minister Alan Shatter has announced his intention to reform the family court structure here. The precise details of those reforms are not yet disclosed but they will, we understand, to some extent be based on the Australian model of family law. The Minister has indicated his intention to appoint specialist judges to the family courts here. This is a development to be hugely welcomed.
How can the proposed reforms of the Irish family courts avoid the pitfalls of our nearest neighbour and the Australian family court?
I would suggest we need:
- a unified family court structure to recognise and actively promote the inter-disciplinary system to ensure effective communication between all the disciplines involved in family law, for example medicine, law, education, Guardians ad litem and social services;
- to ensure that the re-organisation of the family courts is not at a cost of access to justice, so that those living in rural areas with limited transport are not disadvantaged;
- that early intervention is seen as one of the most important aims in the re-organisation of the family courts;
- to ensure that children are at the centre of the family justice system, and that they are properly heard and represented;
- that notwithstanding our recessionary times, the Government commits to radical reform of the family justice system with a central tenet that the proposed new structures actively protect families from excessive delay and ensures that there is sufficient funding for services which some families may need to avail of, for example, family therapy, counselling and mediation.
Minister Shatter does not operate in a political vacuum. It is vitally important that he is supported by a political mind-set in Government which is committed to providing a family court structure with support services properly funded. Minister Shatter has the political opportunity of a lifetime. Let us hope that he is able to deliver a legacy of which he can be justifiably proud. Communication with the stakeholders of the current family law system is in my viewpoint vital to ensuring that we build on our positive experiences together with learning from the mistakes of other jurisdictions.
- Geraldine Keehan, Partner
01 September 2013