The Attorney General has pledged that while it is possible there will be constitutional change to reflect the reality that not all families are founded on marriage, “under no circumstances” will that “dilute or diminish” the State’s commitment to the protection of the family.
Attorney General Rossa Fanning told a top-level family law conference that ensuring adequate resources for the operation of new, dedicated family law courts, as provided for in the new Family Courts Bill 2022, was a “key priority” of Government. The Government’s commitment to the family extended to legislative intervention to protect those who were perhaps most vulnerable within the family, children.
He said a Bill amending the Child Care Act 1991 was being drafted to reflect changes in Irish law and society in the intervening 32 years, including the insertion of article 42A, the child rights amendment, into the Constitution. The Bill would make clear the best interests of the child were “of paramount importance” in childcare proceedings.
The Attorney General was opening the Law Society’s family law conference held in Dublin on Friday. Senior family law judges from England and Wales, including Lord Justice Peter Jackson of the Court of Appeal of England and Wales, were among the speakers.
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While welcoming the Family Courts Bill, the society said it required “significant improvement” before it was passed by the Oireachtas if it was to avoid representing a “false promise” to litigants and their families.
It said in a detailed submission that a major concern was whether the new family law courts, reforms and support services would be adequately resourced. Another key concern was that the new Bill does not give enough prominence to the voice of the child. The provision that the best interests of the child were the “primary” consideration should be redrafted to provide the best interests of the child are the “paramount” consideration in line with article 42A.
Caoilfhoinn Gallagher KC, Ireland’s special rapporteur on child protection, told the conference she shared that concern along with several other concerns expressed by the society in its submission. Ireland had a “commendable” commitment to making this country “the best place in the world to be a child” but there had been a “fundamental mismatch” between that principle and what so many children see in the family justice system over a long period of time.
She said families involved in the family law system have described it as chaotic and not fit for purpose, and children felt their voices were not properly heard in proceedings. “We need to ensure the best interests of the child are considered first and there is a fundamental question about why the Bill has best interests of the child as the primary consideration, not paramount consideration.”
Bar Council chair Sara Phelan SC said one of the Bar’s real concerns with the Family Courts Bill was that most cases were being “pushed down” to the District Court, a court of limited and summary jurisdiction.
She said family law was not summary and to expect a District Court used to dealing with short summary matters to also deal with fully contested family law judicial separation and divorce cases up to a land value of €1 million was “simply untenable”. Assets of many families today could extend beyond land to include companies and pensions but the Bill as it stood would mean such complex cases would have to be dealt with by the already very busy District Courts.
Newly-appointed Circuit Court judge Geoffrey Shannon, while chairing a panel discussion, said the Bill was a “landmark piece of legislation”.
“Our children are our greatest national resource and we really need to invest in our children. We have a Rolls-Royce commercial court system that now needs to be merged with a Rolls-Royce family justice system. If we want to build a world class justice system we’ve got to have the welfare of our citizens at the heart of it.”
