Current System of Child and Family Courts Not Child, Family or Disability Friendly – Irish Human Rights and Equality Commission

Commission Makes Recommendations to Oireachtas on Proposed Law

The current Irish system of child and family law proceedings are not child, family or disability friendly. This view of the Irish Human Rights and Equality Commission (the Commission) is set out in its recommendations on the Family Court Bill 2020 to the Oireachtas Justice Committee, which is to consider the draft legislation.

The Commission identifies problems in the current family court system, which it says is “marked by chronic delays in court proceedings, repeat adjournments, crowded lists, excessive caseloads, delays in conducting assessments of children and adults, inconsistent approaches to hearing views of the child, adversarial approaches to proceedings, inconsistency in decisions, and a lack of specialist training for judges and legal practitioners”.

It goes on to point to “Inadequate physical conditions and facilities which can negatively impact on the conduct of the court proceedings and on both the court officials and the families involved”.

The Commission’s legislative observations and recommendations to the Oireachtas on the General Scheme of the Family Court Bill set out fourteen recommendation for changes to be made by the Oireachtas in the new proposed law to bring it into line with human rights and equality standards.

Recommendations range across the need for better processes in the Family Courts to:

  • determine the bests interests of a child in line with human rights standards,
  • ensure that the right of a child to be heard is adequately protected,
  • strengthen the protection for marginalised groups who are disproportionately represented within child and family law proceedings
  • explicitly recognise the rights of persons with disabilities, including their access to justice and accessibility
  • consult beyond just the judiciary in deciding the geographic districts for the District and Circuit Family Courts. Consultation should include relevant stakeholders, including court users from marginalised groups, namely lone parents, people with disabilities and people from diverse ethnic and linguistic backgrounds.
  • expand the membership of the Family Law Rules Committee to include people with knowledge of human rights and equality; court users, in particular from marginalised and vulnerable communities; representatives of court services and supports; and civil society organisations.
  • Collect and publish disaggregated data about family court proceedings and family court users to see trends in the Family Law Courts.

Speaking today, Chief Commissioner Sinéad Gibney stated:

“The current courts system is marked by a number of chronic deficiencies which mean that children in our family law system are often subjected to too much, and heard too little.

“While we welcome the aim of this Bill to provide a more efficient and user-friendly family court system, which places families at the centre of its activities, our recommendations show that there is a significant road yet to travel to secure that goal. 

“Reform of the family court system provides a once in a generation opportunity to place human rights and equality at the centre of the family justice system. For the sake of all court users we must grasp this opportunity to make the system fit for purpose, for everyone.”

ENDS/

For further information, please contact:

Karen Joynt, IHREC
087 448 2963
Karen.Joynt@ihrec.ie

Follow us on twitter @_IHREC

Editor’s Note

The policy statement from the Irish Human Rights and Equality Commission is available at the following link:

https://www.ihrec.ie/app/uploads/2021/08/Submission-on-the-General-Scheme-of-the-Family-Court-Bill-2020-Final.pdf 

The Commission has published these legislative observations in line with its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to make recommendations to the Government to strengthen and uphold human rights and equality in the State.

The Commission recommends that:

  1. Head 5(3)(a) be amended to further define the principles that should underpin alternative dispute resolution under the legislation, including the right to fair procedures, the safety of parties, in particular children and that engaging in any such process must be contingent on informed and voluntary consent of all relevant parties.
  2. Head 5(3)(c)(i) be amended to clarify the meaning of ‘user-friendly’ as including the provision of information to court users, access to interpretation and translation services, and access to services for persons with disabilities and for families whose first language is not English or Irish.
  3. Head 5(3)(d)(i) be amended to clarify the factors and circumstances, drawing from domestic and international standards, which a court should have regard to in determining the bests interests of a child.
  4. Consideration of the provisions of the General Scheme ensure that the right of a child to be heard is adequately protected and given effect within the legislation.
  5. Consideration be given to amending Head 5 of the General Scheme to include an explicit guiding principle to ensure that family courts and the rules governing the operation of family courts sufficiently protect the dignity and fundamental rights of court users. In particular, the right to fair procedures should be recognised as one of the fundamental rights of court users.
  6. Consideration be given to amending Head 5 to include additional guiding principles ensuring access to justice for all persons on an equal basis with others and the non-discrimination principle so as to strengthening the protection for marginalised groups who are disproportionately represented within child and family law proceedings.
  7. Consideration be given to amending Head 5 to include an explicit guiding principle recognising the rights of persons with disabilities, including access to justice and accessibility.
  8. Heads 7 and 12 be amended to require the Courts Service to consult with relevant stakeholders, including court users from marginalised groups, namely lone parents, people with disabilities and people from diverse ethnic and linguistic backgrounds.
  9. Heads 7 and 12 be amended to expressly require the Courts Service to have regard to the need to ensure that geographical locations are accessible to all courts users on an equal basis.
  10. Head 16 be amended to require Family High Court judges to undergo continual training or education in family and child care law.
  11. The General Scheme be amended to include a provision outlining a non-exhaustive list of content and areas that judges are required to have specialised knowledge of and to undertake courses in. This list should include areas such as the fundamental rights of the individual; rights of the child, including listening to children and reading their concerns and wishes in a child appropriate manner; non-discrimination; accessibility and alternative dispute resolution mechanisms.
  12. Head 18 be amended to expand the membership of the Family Law Rules Committee to include a person or persons with expertise and/or knowledge of human rights and equality; court users, in particular from marginalised and vulnerable communities overrepresented in family law proceedings; representatives of court services and supports; and civil society organisations.
  13. The State collect and publish disaggregated data on family court proceedings and family court users. This data must be compiled in a manner that is research accessible so that patterns and trends in the Family Law Courts can be analysed systematically over time.
  14. The Commission recommends that consideration be given to including a provision that the Act will be reviewed after a set number of years to monitor the effectiveness of the legislation. Any such review should require the relevant Minister to place a report before the Houses of the Oireachtas on the operation of the Act.

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.

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