Reform of the Family Law System;

Identifying Solutions

by ARC founder Dr Róisín O’Shea

On the 6^thof March 2019 Dr Róisín O’Shea was invited to make an oral submission at Leinster House to the Joint Oireachtas Committee on Justice and Equality, and participate in questions and answers with the Committee. This is a summary of her full written submission.

Photo taken after Dail Select Committee meeting on Justice & Equality – from right to left: Dr Roisin O’Shea of ARC Mediation, Dr Carol Coulter, Minister Josepha Madigan, Mr Seán Ó hUallacháin (Bar Council)

Somehow this conversation always starts at the wrong end of the pipeline, the courtroom. Instead we should begin at the beginning.

If I am injured in a car crash I am brought straight to the Emergency Department. We need family E.D. Fast, effective supports. If the new norm was to first step into a wrap-around multi-disciplinary early intervention “ED” (Emergency Department) with mediation at its core, and with the ability to go straight to court in certain circumstances, we would solve the main problems of congestion, delay, significant cost and the destructive escalation of conflict over time.

How do we do this?

I first explored much of my submission to the Joint Committee in my 2014 PhD a more than 3 year empirical study of 1,200 cases in the Circuit Court all over Ireland, funded by the Irish Research Council.

We don’t need to re-invent the wheel, we need to grab and adapt the most effective solutions from other jurisdictions and adapt them for the Irish landscape, both legislative and societal.

I am currently carrying out research in the District Court where I have found that Family law litigants are experiencing two very different worlds. In the provincial courts there are still impossibly long lists. Litigants in Dolphin House, by contrast, benefit from a brilliant innovative system implemented by Eoin Manning, where almost 95% of the litigants are now self-representing. Staff assist litigants to complete forms, which ensures quicker access to the courts. Although this fast access is likely to act as a deterrent to trying mediation to resolve disputes.

Right now we should start to work with what we have, people cannot wait for shiny new buildings or reform of a system that is not fit for the users of that system.

Target State Resources for those who need it most

We should start with families experiencing financial hardship and I propose that the State offers two access points for fast intervention;

Path A; Leverage existing State resources, in the Community, at local level, and start diverting people away from the courtroom. Our means-tested Family Mediation Project is now available across the south of Dublin city in four Family Resource Centres, Quarryvale, Killinarden, St Kevin’s Kilnamanagh, and Ballyboden. Mediation is provided by a team of mediators from the not-for-profit Dublin Community Mediation

• Appointments in 10 days
• Means-tested
• A flat hourly rate of € 25, that can be waived
• It is child-inclusive,
• Cases are co-mediated, and bi-gender
• It is court-linked
• Issues that can be mediated are; Guardianship, Custody, Access and Maintenance.

The mediator assists the parents and children to access the wide range of supports available in FRCs, including counselling, play therapy, parenting courses, support groups, referrals for mental health or addiction issues, and can signpost additional resources such as MABS, FLAC and Citizens Information.

Path B; The Family Mediation Service could then be freed up to focus on separation and divorce for people who can’t afford private mediation or litigation. Again there needs to be a form of means-testing so that the State resources are targeted for the users that need it most. This two-level offering by the State, for the users that need it most, at local level and through the Legal Aid Board would slash waiting times and get appropriate help to families at the earliest possible point.

Family Mediation

I believe that we should not only have a mandatory information session (as described in the Mediation Act) but also a mandatory intake session, after which the parties can choose to continue in mediation or not. Mandating attendance does not in any way mandate an outcome which is wholly in the hands of the participants. Mandating attendance for the first mediation session has been shown to be hugely successful for families and children in the Los Angeles Superior Courts where this approach has operated for years as most people elect to continue in mediation and resolve some if not all issues. If people genuinely understood the benefits of mediation, I believe far greater numbers would opt for mediation to try and resolve disputes. I am in a working group convened by the Legal Aid Board to work towards forming a Mediation Council, which is looking to be possible in the short-term, and once the Council is in place the uptake of mediation is likely to increase as potential users of mediation; know what it is, understand the benefits, and become confident of the training standards and competency of mediators.

Why do people choose to litigate?

The two main reasons that I have observed for those choosing litigation as the first option is that

1. People believe or are being told that they will get a better outcome and
2. They believe they will get their day in court and that the judge will tell the other person they are wrong.

People need to understand that neither is likely to be true.

The overwhelming majority of cases ultimately settle out in the corridors of courtrooms, and those that don’t get an average of 10 minutes for a full hearing with a judge (District Court) and 20 minutes for divorce (Circuit Court).

The High Legal costs of Litigation

Legal costs for each litigant in private family law cases in the District Court, where there are multiple adjournments are at least € 5,000 per person and costs in the Circuit Court are at least € 10,000 per person and can exceed € 50,000 per person. A major factor for these high costs is the over-crowded lists resulting in multiple adjournments and the litigants have to pay the cost of their solicitor and often barrister attending at the courthouse every time. People are spending significant amounts of money to ultimately get a settlement, when the costs of coming to agreement in mediation, with legal advice from their solicitor, is a fraction of those costs, and can happen within weeks rather than years. The Family Home is usually the main resource that a family has, and it should not be used to fund a lengthy legal battle, instead it should be used by that family to fund the higher costs of living apart post separation or divorce.

Reduce VAT to reduce the cost of mediation

In Arc Mediation our fees for family mediations are VATable at 23% . One immediate step the Government could do to support families in distress is to reduce the State tax element of fees. Those who need the services of a family mediator and a family law solicitor are individuals rather than businesses and therefore cannot reclaim VAT, which at the current rate of 23% is almost a quarter on top of the fees charged. Those who engage in mediation should get legal advice so that they negotiate from an informed position, and lowering the VAT rate for family law solicitors fees would ensure better affordability.

Specialist Family Law judges

We need specialist volunteer family law judges with a genuine interest in this area of law, who are not rostered in but opt-in. We could use the 80/20 approach adopted by the Family Superior Courts of Toronto, where a judge who is a family specialist judge spends 80% of his/her time per year on family law cases and is a generalist for the remaining 20%. We should also ensure that specialist family law judges have an aptitude and personality suitable for family law.  In New Zealand it is one of the criteria for selection as a family law judge. If there are insufficient judges that choose to opt-in we could substitute the requirement for 10 years practising as a barrister or solicitor with 10 years professional experience in family related work and a primary degree in law or equivalent.

Change the jurisdiction of the courts

Our system currently discriminates against married people, who are forced to make any application relating to Separation or Divorce at Circuit Court level, generally a much more costly exercise with greater time delays. I propose that all private law matters relating to children and maintenance are heard in the District Court, and the Circuit Court deals with everything else in relation to separation or divorce. Orders made at District Court level would follow the case to the Circuit Court, but any variations of those orders are heard by the District Court. We should adopt a general principle that any issue of family law should be dealt with by the lowest possible court.

Predictability

In the hundreds of family law cases that I have observed to date the same matters arise in almost every case and I have rarely seen any legal complexity, however, the unfettered discretion of judges results in a considerable variation of approach and outcome. It is difficult to identify any pattern, with outcomes depending on the personal views and disposition of a judge. I have even seen significant variations in outcomes with the same judge. We need formulas that quantify maintenance and guidelines for all other matters. These exist in other countries and I am happy to go ask for permission for us to use those here.

Encouraging litigants to try mediation

The Mediation Act 2017 provides the groundwork for the State policy that mediation should be considered for any civil dispute ahead of litigation and at any point up to the final determination of a court. Judges are already very supportive of mediation, the State can offer further support by opening up the Courthouse facilities for mediation sessions where a case is already underway and has been adjourned to allow time for mediation. Legal professionals routinely use Courthouse facilities for settlement negotiations, the same facility should be extended to mediators. The Courthouses can promote mediation by having leaflets available from private providers and information on the State Family mediation service.

Legally binding and lasting agreements in mediation

Mediators have for many years drafted legally binding agreements such as separation agreements ( see Geoffrey Shannon’s Family Law 4^thEdition) and the Mediation Act 2017 section 11 (1) (b) now says that it is for the parties themselves to decide if they want the mediated agreement to be legally binding, so sufficient legal knowledge is an important part of the training requirement for mediators. Before starting mediation you can ask the mediator about their qualifications, their training, and how many cases they have completed, see section 8 (1) (b). Mediation is timely, very cost effective, confidential, self-determining and can provide lasting solutions designed for that family through understanding the needs of that family.

Children

I suggest that the most appropriate way to hear the views of a child, in relation to access, custody and guardianship, is in child-inclusive mediation, with appropriately trained mediators, both private practice and public practice, who can ensure that the child’s views are heard in matters that effect them. A judge who is subsequently asked to rule or enforce any agreement resulting from child-inclusive mediation can be satisfied that the views of the child have been heard, in the most appropriate forum, with the least amount of stress for the child.

Where a case is in court and a welfare issue in relation to a child arises or is alleged, then the court needs a panel of Child View Experts immediately available, who can produce a report for the court within a reasonable time-frame, at a reasonable cost. If we operate a Regional hub approach, then it may be more cost-effective to have these Child View Experts on salary.

We should have parenting guidelines for judges based on international research, so that a child’s right to have both parents in their lives is a priority. The default parenting order of every second weekend and one night during the week, was developed in Ireland from Expert reports to the court where child welfare issues were raised, this should not be the standard order made by the court. Judges need to be aware that extensive research exists that indicates that very young children should have frequent contact with both parents, unless there is an identified reason why this should not be the case, and a predictable schedule and routine. To develop and maintain a healthy attachment to both parents  young children should if possible not be away from either parent for more than two to three days.

 Key principles;

• Families must be dealt with at the very earliest stage, at local level, with as little formality as possible
• If, and only if, this is not successful, every issue in the dispute should be dealt with in the lowest possible court, as quickly as possible
• We need to ensure parity of treatment for both parents in our courts. The guiding principle for the court should be that children do best when both parents are in their lives.

Recommendations;

1. The State should provide means-tested family mediation in the 120 Family Resource Centres around the country, dealing with Access, Maintenance, Guardianship and custody.
2. The State Family Mediation Service should also be means-tested and only deal with Separation and Divorce.
3. All family law disputes must complete a mandatory information session and a mediation intake session, before filing an application to go to court
4. Applications in relation to children and maintenance should be dealt with by the District Court, even after an application has been made for Judicial Separation or Divorce in the Circuit Court. The Circuit Court will deal with final orders at the end.
5. Regional hubs should operate sufficient District Court family law days with designated family law judges, to bring the benefits of Dolphin House to the rest of the country and end the lengthy delays of the current system
6. Designated family law judges should opt-in to hear cases, have a suitable personality, and have access to appropriate training.
7. These family District Courts should have access to salaried Child View Experts, Mediators, and links to other appropriate support services
8. The family District Courts should use maintenance guidelines
9. Reduce VAT on family mediation fees and family law legal fees
10. Mediation should be promoted at every possible point, right up to final orders being made by a judge.