Irish Times

Monday, January 15, 2001

Publicly funding unfairness at court

OPINION/John Waters
Irish Times

The past year was dominated yet again by the Sheedy affair, at the core of which resides the unexceptionable notion that abuses of judicial rules should not occur. In commenting on the Sheedy affair and the hounding of Hugh O'Flaherty, I have made the point that more serious breaches happen every day in the family courts, without anyone giving a boiled fig.

The Chief Justice, Mr Justice Ronan Keane, said in an RTÉ interview in October last: "No court should be run on an informal basis. There must be procedures. There must be a certain dignity. Probably the only court in which these requirements are significantly relaxed are the family law courts, and that for good and obvious reasons."

This statement excited no response. Perhaps because of the secrecy surrounding the family courts, people had little idea what he was talking about. Perhaps people obtained a sense that family courts differ from others in that they abandon "formality" so as to put people at their ease, family matters being so delicate that people embroiled in such difficulties deserve some tender loving care.

Such a concept of family litigation could not be further from the truth.

At the District and Circuit levels of the family law system, there is no formal recording of evidence. While there is a court file for each case, this normally contains only items like assessment reports and correspondence about matters raised outside the courtroom. In court, a judge hears the evidence and pronounces his judgment, which forms the basis for a court order, theoretically drawn up by the court clerk. I say "theoretically" because orders are almost invariably drawn up by the lawyers representing the applicant. This, you surmise, is to save the judge's time. In fact, the judge never gets to see the order at all, ever. Alternatively, you may infer, the draft order would go back to the court clerk, to be checked against what the judge said. But you forget that what the judge said has not been written down, and has long since evaporated.

Thus, the privilege of interpreting the judge's verdict is extended to the lawyers for the party who originated the proceedings. It will come as no surprise that this privilege is widely abused. Thus, the judge's reference to holiday access may be "overlooked". Access orders referring to, for example, two periods of access per week can mysteriously lose all reference to one of these periods in writing. No-fault orders issued by the judge acquire references to domestic violence or abuse, whereas nothing like this has arisen during the hearing. Final settlements in respect of property turn out on paper to be no such thing, leaving the way open for a future application.

Since the majority of family law proceedings are initiated by women, these practices generally operate to the disadvantage of men, and judges seem in all things reluctant to perceive injustices which benefit women. Almost invariably, these cases involve free legal aid, meaning the abuses are publicly funded. The system, of course, is not supposed to operate like this. Rather, the order, once drafted by the applicant's lawyers, should be passed on to the respondent's legal representatives for what is known as "perfecting". This would provide an opportunity to challenge or correct any errors, misstatements or liberties. But if agreement cannot be reached, it is the court clerk rather than the judge who acts as referee.

If this does not resolve things, the only option is to return to court, perhaps several months later, to a judge who has taken no notes of previous proceedings and must hear most, or all, of the evidence again. Assuming the judgment is the same as last time, the whole procedure starts over.

It is unsurprising, perhaps, that most lawyers find such practices congenial, since they get to write the orders in cases where their client is the applicant. Respondents, therefore, encounter a lack of enthusiasm from their lawyers in seeking exposure of such practices. Moreover, lawyers like going to court.

In cases where the respondent represents himself (almost invariably men), the applicant's lawyers rarely bother with the "perfecting" formality at all. Court clerks, who are responsible for ensuring the fairness of the procedures, do not extend much sympathy to lay litigants. Because most applications are originated by women, those operating the system have a vested interest in giving women what they want. This means that the main protagonist in family proceedings has an extra-judicial opportunity to get whatever it was she was looking for, even when the judge has disagreed with her position and issued a different judgment. It means the court system provides a rubber stamp for the demands of applicants.

Nothing in the Sheedy case compares to this. I assume - perhaps I am wrong - it is the kind of thing the Chief Justice was referring to. If so, perhaps he would consider giving another interview to elaborate on the reasons for these practices, as well as informing the public what he considers "good" and "obvious" about them.

© 2001