Proper, child and family-friendly, court structures must be prioritised

Throughout my adult life I’ve met dozens of people whose lives have been scarred by the courts. In the main they’re ordinary people who, for one reason or another, have had to get involved in legal processes.

What often starts out as a search for justice, or redress in the face of a perceived wrongdoing, or even just as a witness, can end up in life-long emotional damage.

I’ve known cases where people have won, and still felt to their dying days that they were cruelly treated.

And of course I’ve known cases where people have lost and felt as if the entire world had gone against them. Our adversarial system of justice is seen by its proponents and practitioners as the best possible way of ensuring that justice is delivered and the law is properly administered. But for the rest of us, exposure to the system can often seem like a close encounter with something cold and cruel.

I remember once asking a senior counsel if there was anything that could be done to make the system less adversarial, especially when it came to children, who often find themselves in court in very difficult situations. He looked at me as if I was mad.

When you send a lawyer into court, he explained, you want him or her to do two things. You want them to win, and you want them to ensure that you’re not saddled with the costs of the proceedings.

They do whatever it takes to achieve those objectives. If that means attacking whoever happens to be in the witness box, to make sure they’re not seen by the court as a credible witness, then so be it.

That’s why people can often go into court as a witness and come out of it feeling like a defendant who has been branded as a liar.

Most of this happens in open court. We hear the cases reported and we can make up our own minds. But some of it happens in secrecy.

It has always been a rule of law in Ireland that what happens to children in court happens behind closed doors. Every day the courts make decisions about the welfare of children — including removingthem from their parents and sometimes committing children to highly secure surroundings – and we never hear about it.

There are good reasons, of course, for protecting the identity of the children involved. But because of the determination of the courts to protect identity, we are never told about the circumstances in which these children are before the courts, nor the reasoning behind what are often life-changing decisions.

That’s why the work of Carol Coulter is so important. Some years ago the courts agreed to relax the in camera rule sufficiently to enable a small team, headed up by Coulter (herself an experienced court reporter with the Irish Times) to sit in on proceedings involving children and to publish reports based on what she found.

So far, the Child Care Law Reporting Project (CCLRP) has published reports on hundreds of cases involving children, has analysed data on nearly 2,000 cases, and members of the team have sat in on nearly one-in-three of the cases that go before judges in the courts.

They have enabled us to know an awful lot more about how the law operates than we ever did before.

So when Carol Coulter says, as she did in her final report published yesterday, that the establishment of a special Family Court should be a priority for the State, we need to listen.

There is a young Irish woman, still a child in the eyes of the law, in a unit called St Andrews in Northampton in the UK. This is a unit routinely used for the care and protection of children who are a risk to themselves and others.

It costs the Irish state €560,000 a year to keep her there. But her case has been before the courts a number of times, and so far the costs of that one case have exceeded 41 million.

According to Carol Coulter’s report, 11 barristers, including six senior and five junior counsel, and at least five solicitors were involved in this case.

Coulter quotes Mr Justice Noonan as having observed that the costs of the case would fund a purpose-built unit for the woman here.

When he said it, Gerry Durcan SC, representing the young woman, told him that the legal costs of similar cases involving vulnerable young people over the last 20 years would pay for an “entire purpose-built system”.

But legal costs are only one issue. The final report of the CCLRP makes the point, based on its careful analysis of the statistics, that “the single biggest factor leading to care proceedings… was the mental health of one or both parents, usually the mother, which featured in 28 of the case reports, almost 10% of the total.

“Mental health problems on the part of the child were also a significant issue, featuring in 19 of the cases”.

How can it possibly make sense to be sending cases like that to the courts, when there is little or no access to preventative or early assessment approaches for people whose parenting is deeply affected by mental health issues?

At the heart of the report, it seems to me, is a constant focus on inconsistency. Because of the way the law is applied in Ireland, every judge is the boss of their own court. They and they alone decide what weight should be given to the voices of children (or whether they should be heard at all).

They decide what evidence should be presented and how. They decide what needs should be taken into consideration. They decide whether the parents before them are “good enough” parents. They decide how much time to devote to each case — and more than 90% of cases take less than three hours.

Although Carol Coulter doesn’t say so in so many words in this final report, it’s impossible to conclude that justice is always done in the cases reported on. It’s impossible to conclude that the interaction of the child protection system (itself under-resourced, of course) and the law always works in the best interests of children and their families.

And it’s impossible to conclude that we always, in Ireland, listen to and respect children as we should (even though we voted to put that requirement into our Constitution a few years ago).

The CCLRP project was ground-breaking when it was established, because it enabled a troubling veil of secrecy to be lifted. It has enabled us all to learn a lot. And the lessons are clear. Proper, child and family friendly, court structures must be prioritised.

Within those new court structures the rights of children to be heard and respected must be seen as a paramount concern.

The protection of children should never have been allowed to become an issue where the winning of legal battles takes precedence over the future of the children at the heart of those battles. Carol Coulter has shone a light on that collective failure – it’s up to the rest of us to fix it.