Ireland's legal system will come under unsustainable pressure after the enactment of the country's first-ever divorce laws unless the government appoints more judges and doubles funding for the Civil Legal Aid Board offices, the Bar Council has claimed.
James Nugent, chair of the Irish Bar Council, said extra funding of about £3 million would be required and at least three more judges should be appointed if a courts deadlock is to be avoided.
He added that piecemeal measures would not be enough and he called for the establishment of a single courts agency, along the lines of the commission recommended recently by Judge Susan Denham, of the Supreme Court.
The last census to be conducted in Ireland indicated that there were 80,000 separated people in the Republic. And official sources show applications for judicial separations have been running at about 3,000 a year for the past five years.
“The most conservative estimate would suggest there will be about 10,000 people applying for divorce in the first year,” said Nugent. “If even a third of those are looking for legal aid, the board will [need] at least another £3 million.”
Pressure on the service offered by the Civil Legal Aid Board was eased somewhat in 1993 when the government increased its subvention from £3 million a year to £6.5 million. This allowed 100 extra solicitors and law clerks to be recruited and more than 15 new board offices to be opened throughout the country.
But Nugent believes the move did not go far enough. “There is going to be a terrible crisis next year in the courts and in the legal aid board,” he said. “The recent appointment of 10 new judges will do a lot to help but the management of the courts has always been such a hit-or-miss affair.
“The delays in the civil and criminal lists as well as in the family lists are such that even if the new judges concentrated on family cases, they couldn't solve the problems.”
He added: “It's time now to adopt a long-term strategy like the one recommended by Judge Denham's committee. We need a courts commission to act as a centralised management agency with responsibility for all matters dealing with the courts.”
However, alongside the appointment of the judges, Nugent welcomed the decision by the courts to return from the summer recess in late September, three weeks earlier than normal, adding that although both were small measures they complemented a more wide-ranging centralised strategy.
The Law Reform Commission used the word “crisis” to describe the situation in the family courts in its special report on family law last April.
The report states: “The chronic situation has arisen as a result of a failure to appreciate and address the consequences for the family justice system of the substantial increase in family breakdown over the last quarter century. The family justice system is now in crisis.”
The commission recommended the establishment of 15 Regional Family Courts as a division of the Circuit Court, with Family Law Arbitration Centres set up as annexes of the Regional Family Courts to help mediate between spouses encountering marital difficulties.
The government's divorce legislation was introduced earlier this year following its narrow victory in the constitutional referendum in November. The margin was 50.4 per cent for, 49.6 per cent against.
The legislation passed the committee or third stage before the summer parliamentary recess and it is expected to complete all stages and be signed into law by the end of the year by president Mary Robinson. A period of three months will elapse before the legislation comes into effect.
During the unsuccessful campaign to introduce divorce in 1986, the then government reckoned that three more judges would be needed to cater for the extra pressures on the family law courts. One government source accepted that there may be a need to appoint even more but insisted that the system was now better able to cope with the new pressures than it had been previously. He claimed the problem in the legal aid board is not as acute as it had been three years ago and that additional resources committed since then means the average waiting list has been slashed from 15 months to about six.
“The government has committed more money in recent years to improve the legal aid service and to increase the number of judges,” he said. “The system will be more capable to deal with the new divorce situation next year.
“Of course, you could make the case for more funding. But the Civil Legal Aid Board service is a bottomless pit.”
But he accepted that progress made in recent years in reducing waiting lists in the Civil Legal Aid Board offices could be lost once the new demands are placed on the system.
The government believes two categories of people will emerge in the new divorce environment; those seeking judicial separations and those applying for divorce decrees. The first category will be subdivided into parting spouses against the idea of divorce for religious reasons and those who are in favour of divorce but cannot wait for the four-year statutory cooling-off period to elapse before becoming eligible for divorce.
Sabha Greene, administrator of the independent Free Legal Advice Centre, which refers people to the Civil Legal Aid Board offices, forecast a huge increase in the number of people applying for judicial separations and divorces although she believed this would slow down to a more manageable rate.
“After the enactment of the Judicial Separation Act in 1989, we experienced a huge surge in demand for our services – probably as high as 40 per cent,” she said. “This was explained by the need to clear the huge backlog in cases, but demand fell back subsequently.
“There is likely to be a similar pattern with divorce – a huge initial surge followed by a slowdown to a more 'normal' level of demand.”