A DISTRICT COURT judge has called for the introduction of mandatory legal aid for all domestic violence cases in the country.
Judge John Campbell was speaking at a conference to examine legal and practice issues in the Domestic Violence and Child Protection sector at Trinity College Dublin.
He said there has been a “significant increase” in domestic violence cases coming before the courts following the Covid-19 pandemic, which he said was not surprising.
While the Court Service Annual Report for 2022 has yet to be published, it is understood that there was a 4% increase in the number of domestic violence applications last year, with approximately 23,500 related applications.
There has also been a 5% increase in the number of child care cases, from around 14,000 in 2021 to 15,000 last year.
The judge said the issue of domestic violence was “magnified” during the pandemic.
“Anybody who has lived through Covid, imagine if you are living in a situation where you’re being coercively controlled, where you’re dealing with a violent partner, the accommodation you have was never intended to be shared by the two of you on a full-basis, with two or three children who can’t go to school because of Covid,” he said.
“But in fairness, and I’ve said this before, no matter what you think about the guards, the guards ensured during 2020 that any applicant – and they were mostly women - who needed an emergency order got to court, and the court service personnel in Dolphin House ensured that they got their cases processed for them.”
Speaking about how practice could be improved, Judge Campbell said the “elephant in the room” was resources.
According to the Legal Aid Board, you must have an annual disposable income of less than €18,000 and disposable assets of less than €100,000 in order to qualify for legal aid. Although the family home is not included in the assessment, many people are excluded because of their income from work.
There is no contribution required in child-care and domestic violence cases. However, victims still need to come within the disposable income and capital thresholds.
Judge Campbell said access to legal aid should be mandatory in all cases involving domestic violence and child protection.
“There are strict requirements where exceeding the threshold for legal aid and the working poor very often will lose out. They will not meet the criteria. The court can make an order that they be provided with legal aid, but they don’t qualify as a right,” he said.
“That hampers the safe procedure of the case, the ultimate resolution in favour, perhaps, of a parent, the difficulties that parents will experience by having to take time off work and having to pay a solicitor he or she can afford. That’s something that should be addressed.”
He said while the court service staff and the judges do their best to help victims of domestic violence in court, “there should be mandatory legal aid for those people”.
These are vulnerable people. I mean if – and now I’m going off piste – but if a TD can get legal aid for a criminal prosecution against him, why can there not be legal aid for the most vulnerable in our society? I ask that question, I don’t expect any answers.
He said there are not enough foster families available to care for children in the State, which leads to children often being moved “several times from emergency foster placements to another short-term foster placement and to another”.
“That may involve moving schools and losing all of the support that a child derives from being in school: being nurtured by teachers, being spotted by the Special Needs Assistant as this thing is going on.
“Very often the cure can become worse than the complaint. A child being moved constantly through the fostering system is not good for the child and it’s an indictment of the system.”
He acknowledged that families facing the dual challenges of the cost-of-living crisis and the housing crisis would be deterred from fostering children, along with social workers facing the same higher costs while working in Dublin.
He said the courts have the ”utmost regard” for social workers.
“They have the interest of the children whose cases they are dealing with, and indeed their parents, at heart, but the difficulty is there aren’t enough of them. They’re not well paid enough. They get burned out. Sometimes it appears to us as judges that the Child and Family Agency as an entity doesn’t appreciate what it’s like on the frontline.”
The judge also questioned the idea of a salary cap for social workers.
We hear talk in other sectors about how the salary cap should be lifted in banking so as to attract the best bankers or air traffic controllers to attract the best people. What’s wrong with doing the same for social workers?
“Are not the welfare and safety of our children the most important issue, rather than having amendments to the Constitution and further legislation, which virtue signals, but doesn’t put one more social worker on the ground or provide one more residential unit for a teenager? Those are the issues that should be addressed.”
On the legislative side of things, Judge Campbell questioned whether the Family Courts Bill 2022 would be the best solution for children involved in domestic violence cases.
The Bill, which is currently at second stage before the Seanad, is seeking to establish a new dedicated Family Court within the existing courts structure. It would be supported by the construction of a purpose-built Family Law Court complex, set to be built by 2026.
The Bill states that Family Court proceedings would be in a different building or room from that in which other court sittings are held, or on different days, or at different times from other court sittings.
It would also increase the jurisdiction of the District Court to €1 million and allow the court to deal with judicial separation and divorce cases, something that has been criticised by solicitors.
Judge Campbell believes that having “one family law division that will cut through each court” would not be the most beneficial for victims due to having different cases under one roof.
He said the District Court buildings in Bridewell are old and purposed only for child care, with private and confidential hearings which ensure that parents involved will not meet anybody except those directly involved with the case.
“I think that at some level gives the parents, who most of the time are vulnerable individuals who have difficulties of their own, some reassurance that they’re not going to be meeting their neighbours as you might if you’re going through a railway station or an airport,” he said.
Whereas, the introduction of a “railway station-style environment where there’s divorce and separation and there’s High Court [cases] and Circuit Court [cases]” would be less beneficial, he thought.
“I know politicians believe it’s a good idea and probably in theory it is, but in practice, I don’t believe it necessarily beneficial for the cohorts of clients that we deal with.”
The conference, aimed at those working in the sector, such as social workers, lawyers and policymakers, heard from a variety of speakers, including from the Child and Family Agency (TUSLA), Safe Ireland and the Independent Guardian Ad Litem Agency (TIGALA).
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