NUI Galway on RTÉ Brainstorm: Why it's time to reform the family law system

Image: RTÉ Brainstorm
Mar 04 2020 Posted: 12:25 GMT

Author: Dr Connie Healy, School of Law

Opinion: the court system should provide the scaffolding required to give families a chance for a new beginning

The beginning of the year is a busy time for family law solicitors based on the number of queries they receive about separation and divorce. The launch of the #courtingdisaster campaign in December highlights the frustration evident amongst many family law practitioners and NGOs about the lack of services for separating parties who find themselves before the family court system in Ireland. The #courtingdisaster campaign focuses on facilities (or lack thereof), lack of privacy and the indignity of having to wait around in hallways amongst other things.

Arguably, there are few more poignant times in one's life and when one feels more vulnerable than having to approach the courts to resolve an issue that has arisen within a family. Society has a tendency to take a blinkered approach, perhaps due to the view that it will never happen to us, or a fear that it could be any of us. While ending up before a judge may resolve the immediate issues, it may do nothing to assist with the wider impact of a family falling apart.

From RTÉ Radio 1's Today with Sean O'Rourke, the Children's Rights Alliance's Tania Ward and family law barrister Rachel Baldwin discuss the #CourtingDisaster campaign

While aiming to resolve all of the financial and societal issues that may contribute to family difficulties is unrealistic, an understanding of the issues is crucial. Lessons from other jurisdictions highlight the importance of an interdisciplinary approach. This is one that addresses the underlying issues, if any, through referral to appropriate support services, effective case management and a graduated response to dispute resolution. The latter can begin with less adversarial approaches though mediation, judicial conferences and ultimately a court hearing for those who cannot resolve within those processes.

It is time to move away from the mindset of pitting courts’ processes against alternative methods of resolution, of viewing "alternative approaches", counselling and mental health services with suspicion and to take a guided, systematic approach that aims to resolve rather than to settle conflict. Rather than use lack of resources as an excuse for inaction, it is necessary to maximise the resources we have and to use them creatively.

From RTÉ Radio 1's Morning Ireland, Noeline Blackwell from the Dublin Rape Crisis Centre on the launch of a campaign advocating for a dedicated family law court

Assistance and support could be garnered from a portion of lawyers' continuing professional development requirements being directed towards pro-bono work providing services for unrepresented clients. Law student and trainee mediator engagement can benefit both students and litigants. There is also an argument for engagement from universities in judicial training, research and reviews of standards. More support could come from the streamlining of processes, effective case management and maximising the use of court buildings outside of court times to provide centres for supervised access.

As in other jurisdictions, courts can lead the way in developing schemes where alliances with local business help those who assert that they have no money to pay maintenance to re-engage with the workforce rather than imprison them for default. It is time for those who have lead this campaign to be heard and to be involved in reform. Structuring the proposed Family Court requires strong judicial leadership and an engaged stakeholder approach. Reform in a piecemeal way is inefficient.

A client cannot design the model because they haven't been here before and they aren’t emotionally placed to be able to deal with it

Is this a paternalistic attitude? Arguably yes, but as noted by a family lawyer interviewed for research undertaken by the author, "a client cannot design the model because they haven’t been here before and they aren’t emotionally placed to be able to deal with it". Empowering litigants to walk away from the system better able to resolve issues should be the aim. The legal system should provide the scaffolding required to at least give families a chance for a new beginning.

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