Seanad Éireann - Volume 98 - 19 May, 1982

Adjournment Matter. - Family Law Cases Jurisdiction.

Mrs. Barnes: Before I start on the formal business may I congratulate you on your election as Leas-Chathaoirleach and wish you a fairly peaceful session without too much disorder? May I also welcome the Minister for Justice and hope that we shall be seeing much of him in the Seanad as well? The Seanad should also be operating in the important area in which he is operating, that is, the whole area of reform of legislation. I hope this is but the first of many visits by the Minister to the Seanad. I thank him for coming here this evening. I also am grateful to the House for giving me the opportunity to move this motion on the adjournment, and also for allowing me a certain amount of flexibility as a neophyte. Senator O'Rourke may have been in the last Seanad. I am merely preparing myself in this session.

However, I welcome the fact that I am allowed to address the House and the Minister on this very urgent issue. The urgency of it will become clear as we discuss it further. For many years now Members of the House and all of us have been aware of the pressure and the lobbying for a humane socially just law reform in all areas, and particularly in the area of family law cases, where some of the most vulnerable members of our society find themselves the victims and at risk.

I talk not just of a minority but of a majority when I talk of women and children. It is sometimes forgotten that women and children collectively form a majority. It is of the very essence of importance that we address ourselves to [158] family law reform and the whole institution of marriage. We pay great lip service to the institution of marriage and the protection of women and children in the home within the Constitution, but lamentably we have failed miserably to live up to that by having any kind of law reform which would actually ensure that the very people whose rights are enshrined within the Constitution got a fair deal under the law.

Many people have lobbied for such reforms; legal practitioners, voluntary organisations, and particularly women's organisations in the past ten years. We never felt the answer was the situation in which we now find ourselves. Under the Courts Act, 1981, which became law on May 12 last, important areas of family law were transferred from the High Court to the District and Circuit Courts, this despite requests to the Minister for Justice both inside and outside the Dáil that such action be deferred, and such Act be deferred for at least 12 months, in order to give everybody an opportunity — but particularly the courts and the facilities within the courts — to provide the resources and facilities needed for the extension to them of such a very serious area of law and a very complex one as well.

Unfortunately it was not entertained in the Dáil, and I know that many anxieties and concerns were expressed publicly and also to the Minister at meetings. For instance, the Council for the Status of Women which represents over 30 women's organisations had a meeting with the Minister on this very issue and stressed to him the concern they felt about it on behalf of their members. We now find that the worst fears of people who spoke against it have been confirmed.

There has been delay and confusion about drawing up rules and notifying them to the court personnel within the District and Circuit Courts. No provision has been made, to my knowledge, for improving the already bad or non-existing facilities in a large number, lamentable too large a number, of our District and Circuit Courts. I cannot over stress how serious this is. It is serious for anybody [159] coming before the law. This has been a cause of scandal throughout the State for many years with regard to civil cases. When we think of sensitive, painful and complex cases involving human suffering and psychological and physical damage, then we begin to realise the extent of the lack of such facilities: consultation rooms, confidentiality, the personal and painful lives of people being tried in bad, small, cramped, open public courts. It certainlty does not help or support people who find themselves at a very vulnerable time in very painful situations. In fact, it is totally unacceptable. As well as that no special training has been prepared or given to court personnel in this sensitive and complex area. My remarks regarding the facilities in the courts would refer as much if not more so to the personnel because here, not alone are we being unfair to the people who come before the courts, but we are also being totally unfair to the personnel who are expected to try to administer such legislation.

We have reached the very dangerous and painful situation when chaos and industrial action which had been feared have now become a reality. This has led to women being in the vulnerable situation of going down to the courts for barring and protection orders and being turned away. This is particularly serious in the case of protection orders which are invoked only by persons in fear for their immediate physical safety.

My remarks regarding the sacredness of the family and the vulnerable people in our society really take on a stark reality when we add in violence. That is the situation in which women and children find themselves. They are at risk from violence, physical, psychological and emotional. It is a great pity that, when we eventually decided to transfer jurisdiction from costly over-crowded higher courts, a commitment to social justice could not have been made at the same time. It is not that there were not people around to lobby, to suggest, and that we did not have experience in other countries of how courts dealing with family law cases should work. We have models [160] in other countries. We have just had a very supportive and developed debate here in this House on health and, of course, one of the areas of health stressed both by the Minister for Health and the Senators who contributed to it was the health and welfare of our people.

I put it to the Minister for Justice that there is no point in our discussing the health of the nation and particularly its vulnerable members when the law as it now stands to protect them totally fails to do so. Apart from being able to think about preventive medicine we cannot even think about preventive violence.

There is much to be done, and I should like to ask the Minister what he proposes to do having regard to the urgency and seriousness of the situation in which we now find ourselves. The District and Circuit Courts lack the additional personnel who should have been appointed before such changes took place. Additional personnel and existing personnel should have been trained to meet the complexities and the needs and demands of this new area of legislation. Facilities should have been extended to enable them to cope adequately and comprehensively with the areas of laws transferred to them. Does the Minister feel the District Courts can deal on the pavement or in the toilets of certain courts with family and marital problems before their cases are tried?

In the long term we have all been struggling for a social, just and equal society. Unfortunately I have to say “in the long term” because, as far as I know, nothing has been put forward by this Government towards the establishment of proper, humane and socially just family courts to deal comprehensively with family law cases coming before them, backed up by conciliation services, relieving over-crowded courts, and perhaps preventing those cases from coming to court if they get the right support in time.

I have been informed, for instance, with regard to dealing comprehensively or non-comprehensively with such cases that, as the matter stands at the moment, part of a case involving family law can be tried in the higher court while the other part of it has to be tried in the lower [161] courts. It does not even make good sense logically, much less humanly or personally, which hopefully we want this law to be all about, particularly in these very sensitive cases.

While I should like clear, concise and hopefully very quick answers and solutions to the first part of my question, I should also like some commitment from this Government and from the Minister on the establishment of such family courts. Without these family courts there is no way within the present structure or the present system in which marital breakdown and the consequent pain, loss, financial, emotional and otherwise, and the damage to children, can be dealt with in any kind of humane or comprehensive way. We are not just talking about a certain elite or exclusive part of the establishment. We are talking about a law, a structure, which has to deal with an increasing number of marital breakdowns and the consequent pain and harm that come from them. The longer the Government fail to face up to the reality of such breakdowns, the longer the court cases will become, the more overcrowded will become the already under-staffed courts lacking in facilities.

We must keep in mind that we are not just talking about this generation, about the difficulties, problems and damage to the couples involved, we are talking about the next generation as well. We are talking about the children of marriages which have broken down, about our great heritage to which we all pay great lip service, and our children are our greatest heritage. Research in other countries has shown that the most human, the most caring and the most supportive way in which marriages and the marriage breakdowns can be helped is by having a comprehensive legal system accessible quickly and easily to everybody and not depending on how much money or influence one has.

I need hardly remind this House, because it shames me to do so, that women in family breakdown situations have had to have recourse to Europe and to the European Court, because this State and the law of the land in this State [162] totally failed them, excluded them and discriminated against them. Are we to continue to live with this shame and this embarrassment? Are we to allow not just this generation but the next one to suffer from the damage and consequences? At this moment here today, women — and, of course, their children — are being denied barring orders, are being denied protection orders to protect themselves physically. Can we as a civilised nation, in one of the Houses of what is considered to be a democratic Parliament, sit here and realise that there are women in houses tonight desperately hoping that they will not be damaged physically, mentally and emotionally by tomorrow morning?

I ask the Minister in the name of the law we all revere, the law that should exist in the terrible situation in which women and their children find themselves, to take immediate action and to inform this House what that immediate action will be, and also to give a long needed commitment to family courts to deal with the most important areas of life in this country.

Minister for Justice (Mr. Doherty): A Chathaoirligh, first let me congratulate you on your appointment and wish you well in your very onerous task.

In connection with this motion I want to say that on many occasions while I was Minister of State at the Department of Justice, Senator Barnes came to that Department and discussed the legislation which is now the subject of some controversy. Indeed, on all occasions when she visited me, she stressed the urgency for the introduction of such legislation. She was aware — and, indeed, I stated it at the time of the introduction of the legislation — that there would be a 12 month period before the legislation would become operable in some regards. However, unfortunately for eight months of that 12 month period I and my party were not in Government. I found that on some of the matters which could have been dealt with no sensible or responsible approach was taken by my predecessor during that period. Neither was there any extraordinary cry during that period from [163] the people who are now making such loud noises about this very important and sensitive area.

As regards the drawing up of rules for the District and Circuit Courts, on two occasions the Department of Justice urged that those rules should be sent forward for ministerial approval, and the most recent occasion was in April of this year. Unfortunately I do not have any representative on the Rules Making Committee in either case, but I should like it to be known that some of the solicitors and barristers now talking do have representation on the Rules Making Committee. It would have been in their interest, I am sure, to have urged their colleagues on the Rules Making Committee to bring forward the rules as a matter of urgency, rather than to attempt to cause what I can describe as nothing less than political embarrassment on the one hand or to frustrate very sensitive and delicate discussions now taking place.

It is not correct for Senator Barnes to say no training was given to court staff. Justices have had the benefit of a special seminar arranged by the Chief Justice to give them the experience of High Court judges. Court staff have also attended a course in the new jurisdiction. I must make it perfectly clear that no chaotic situation has been caused by the coming into operation of the provisions of the Courts Act, 1981, which conferred jurisdiction in family law matters on the District Court and on the Circuit Court. A problem has arisen in the District Court as a result of action being taken by the court clerks concerned who are not only refusing to deal with cases under the Courts Act but also under other recent legislation.

I must also deprecate the continuous efforts made by vested interests both in the Houses of the Oireachtas and outside, to bring into disrepute the provisions in question. The law represents the decision of the Oireachtas as to the jurisdiction in family matters, and gives effect to the recommendations of a most eminently qualified body, the Committee on Court Practices and Procedure, presided [164] over by Mr. Justice Walsh, and also including the Presidents of the Circuit and District Courts. The changes involved were all changes deemed to be in the wider public interest.

I have mentioned that vested interests are concerned in efforts to prevent these changes, and I do not intend on this occasion to spell out in any greater detail what I mean by that. I am sure it is clearly understood by many. The vested interests I refer to appear to me to have a greater concern for their monetary aspirations than they have for giving cheaper and easier access to the court provisions in this Act. I know Senator Barnes is seriously concerned about family law, and about the terrible difficulties now being posed, and posed in the past, for families where there is violence in the home.

However, I will have no hesitation on some suitable occasion in the future in making more specific reference to the vested interests and what they are attempting to do.

Mrs. Robinson: Why not do it now?

Mr. Doherty: You are one of them.

Mrs. Robinson: I totally reject that.

An Cathaoirleach: No interruptions, please.

Mr. Doherty: I saw you at play when I was here dealing with very important court legislation prior to the 1981 Act. You had yourself debarred from this House so that you could go and canvass. That was your concern.

Mrs. Robinson: That is absurd.

Mr. O'Connell: On a point of order——

An Cathaoirleach: The Minister should be allowed to continue without interruption.

Mrs. Robinson: I do not like his insinuations. I am glad I flushed him out.

Mr. Doherty: I flushed you out. I mentioned the campaign on that occasion——

[165] Mr. O'Connell: On a point of order——

An Cathaoirleach: There are no points of order on the Adjournment.

Professor Dooge: Even if the Minister continues to attack people in their own avocations?

Mr. Doherty: If the Minister commits himself to making public statments which have a credible basis, he should not read in the papers the next day that he misled the other House of the Oireachtas. I consider that a disgraceful tactic.

Mr. O'Connell: A Chathaoirligh, are you saying it is in order——

An Cathaoirleach: The Minister must be allowed to continue.

Mr. O'Connell: Is it in order for the Minister to address a Member of the House directly in a personally insulting fashion without addressing his remarks through the Chair? As far as I could understand it, the Minister attacked a Senator and made personal allegations without addressing his remarks through the Chair.

An Cathaoirleach: The Minister was interrupted. Senator O'Connell, I have to ask you to resume your seat and let the Minister continue.

Mr. O'Connell: I accept your ruling, but I am puzzled as to the——

An Cathaoirleach: Senator O'Connell, I am asking you to resume your seat and let the Minister continue.

Mr. O'Connell: I defer to your judgment, but I am puzzled as to a ruling which permits the Minister to direct an insulting remark and make an allegation directly——

Mr. Doherty: The Minister was invited to name the vested interest.

Mrs. Robinson: Since the Minister has insinuated that in some way I have a vested interest, could I have a moment to reply when the Minister has finished? I have no vested interest. I should like to [166] reply to the allegation made by the Minister.

An Cathaoirleach: There can be no discussion. The Minister must be allowed to continue.

Mr. Doherty: I mentioned the campaign on this occasion because it seems to me to have led to confusion about what is happening in relation to the present court problem.

The action being taken by the court clerks is a different matter. As workers, understandably enough they are concerned to get the best deal possible. Similarly, the State has been conducting the necessary negotiations having regard to the public interest—— the very interest about which Senator Barnes is rightly concerned. What is involved essentially is a grading claim. It should hardly be necessary for me to acquaint Senators on the other side of the House with the importance of issues of this kind in relation to public sector pay. I do not want to say anything here this evening which would tend to harden attitudes in the present dispute, but I am convinced that the demands being made on the taxpayer by the officers concerned are out of proportion to the realities of the situation. Nevertheless I am hopeful that with recourse to the normal procedures provided, we can settle this dispute at a very early date and ensure that the provisions in the Act which were intended to help people in greatest need can be brought into operation fully if there is reason and understanding on all sides.

Mr. O'Connell: On the motion for the Adjournment is it in order not to agree with the Adjournment?

Mrs. Robinson: Is it in order to ask the Minister why he did not postpone bringing in this Act until he had resolved this problem? That is the whole point.

An Cathaoirleach: Before I came back into the Chair, the House had already decided to adjourn sine die. The House is now adjourned.

The Seanad adjourned at 7 p.m. sine die.