Youth in Prison. Roger Smith. When Brute Force Fails. Mark A. Introduction to Corrections. Robert D. Encyclopedia of American Prisons.
Marilyn D. Philip W. Corrections in the Community. Edward J. Rosemarie Skaine. Problem Solving Courts. JoAnn Miller. Caught in the Web of the Criminal Justice System. Lawrence A. Jeanne B. The Victimization of Women. Michelle L. Forensic Social Work. Robert L. Black Fathers. Michael E. Larry Mays. Elder Abuse Detection and Intervention. Bonnie Brandl. Sex Offender Laws, Second Edition. Richard Wright. Crime and Criminal Justice.
Stacy L. Forensic Psychology Reconsidered. David Polizzi. Encyclopedia of Murder and Violent Crime. Eric W. Youth in Foster Care. Bonita Evans. A Return to Justice. Ashley Nellis. The Future of Crime and Punishment. William R.
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How to stop bullies. Victor Kiethman. William G. Mary K. Encyclopedia of Community Corrections. Shannon M. Last Chance in Texas. John Hubner. Hard Time. Robert Johnson. Anthony G. Although his lawyers were prevented from seeing the testimony of the two repented guerrillas who claimed to identify Dr.
Polo in a lineup, it was later learned that their testimony had been obtained under torture and that police had forced them to incriminate him. The wounded guerrilla publicly retracted his identification of Dr. Polo, which he says he was forced to make without his eyeglasses. Nevertheless, Dr. Polo was sentenced to life in prison by a military tribunal. Two years later, the sentence was overturned on appeal and Polo was released. Pedro Alfonso Guerrero de Luna. Employed by the men's prison in the city of Piura, Guerrero de Luna says he refused to falsify medical examinations of prisoners subjected to torture by police.
On November 24, , he was arrested, according to police because he aided a wounded guerrilla. His family, however, maintains Guerrero de Luna was at a birth that night. After spending two years in prison, Guerrero de Luna was declared innocent in July Her testimony against the army received wide press coverage, and may have motivated the army to arrest her at her home on February 10, , in the hamlet of Anda. After several days detention, she was released without charge. The landowner who accused him offered no evidence to back up this claim. Nevertheless, Mendoza was prosecuted retroactively under the terrorism law and spent thirty-three months in prison before being declared not guilty in September Although he denied the charge, Bonilla says he was forced to sign a confession, was denied access to a lawyer, and no public defender or prosecutor was provided to him.
Apparently, officers wanted to force them to conform to a law putting the patrol under army command. Alejos said he was taken to Ticlacocha Lake, where he was submerged in freezing water and threatened with death. Sticks of dynamite were tied to his body and put in his mouth, lit, then extinguished. His pubic hair was burned. Repeatedly kicked as shots were fired in the air, he was forced to drink water mixed with detergent and a firearm was put into his mouth. As he was taken to a hospital, a soldier told him not to mention the torture and to say that he was spitting blood because of tuberculosis.
Transferred to the custody of the anti-terrorism police and maintained incommunicado, he was again tortured. Before his release, Alejos was declared an Amnesty International prisoner of conscience. Nevertheless, he was charged with terrorism and at the time of writing the letter to us had been in prison for eleven months. Instead, she was arrested and held incommunicado. De la Cruz later charged that between January 7 and 10, she was blindfolded and taken to a beach south of Lima along with five other female prisoners. There, they were raped repeatedly and tortured with near-drowning.
Doctors later confirmed that De la Cruz conceived while in police custody. De la Cruz was acquitted of treason, but her case was referred to a civilian faceless court and she was sentenced in November to twenty years. The case is currently being appealed. The CCD investigative commission never published its findings. The fee was not returned. Finally, the family convinced their local priest to appeal to a church-linked human rights group on Gustavo's behalf.
In addition, Vilcara's name appeared on a list written by another detainee accused of belonging to the Shining Path. Unaware of his arrest, his family saw Vilcara presented to the press in a striped convict's uniform as they watched the nightly news after a family birthday party. Although the prosecutor made only a formal accusation against Vilcara since there was no proof of guerrilla activity, Vilcara was sentenced to twelve years in prison.
In their conclusions, the faceless judges said Vilcara was proven guilty by the testimony of two others, testimony in which neither Vilcara's name nor allusions to him appear. Vilcara was acquitted on appeal. Despite the offer of one human rights group to pay her ticket to Chiclayo to stand trial, the Chiclayo judge threatened a mistrial because Tenorio wasn't present. A mistrial means the entire proceeding must begin anew. The Hon. Anthony J. Buckley, Esq. William R. Duncan, Esq. Maureen Gaffney, B. The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, The Commission has formulated and submitted to the Taoiseach or the Attorney General fifty one Reports containing proposals for the reform of the law.
Details will be found on pp. Nuala Egan, B. Sarah Farrell, LL. Lia O'Hegarty, B. Michigan , LL. Harvard are Research Assistants. Should the District Court retain an emergency jurisdiction? Should the District Court retain any other elements of its family law jurisdiction? The Law Reform Commission has published thirteen Reports which cover or touch upon different areas of substantive family law. This Report is concerned with the processes and procedures whereby family law disputes are resolved and remedies are obtained.
Arising out of the process of consultation, we have explored in preparation for this final Report a number of further matters including systems of case management, the appeals process, some issues surrounding confidentiality in the mediation process and some issues surrounding the appointment and secondment of judges. It will be seen that the Commission has taken a broad view of its brief, and has attempted to review all the more important aspects of our family justice system. This Report is complete in itself. However, many of the issues with which it deals were explored in depth in the Consultation Paper, and repetition of that detailed treatment was felt to be unnecessary.
This is particularly so in relation to the issues surrounding mediation and other forms of alternative dispute resolution. In the Consultation Paper, and again in this Report, we draw attention to serious deficiencies in the existing family justice system. The last twenty years have seen a growing recognition by society of the wide variety of problems associated with the breakdown of family relationships. Substantive family law has undergone a transformation during this period, with the introduction of a wide range of remedies and rights designed to protect vulnerable or dependent family members in the wake of breakdown, and to secure the fair distribution of family assets.
Unfortunately the means for the delivery of these new rights and remedies have not received the same level of attention. The structures which this society offers for the mediation and resolution of family conflict are inadequate in the extreme. The courts are buckling under the pressure of business. Long family law lists, delays, brief hearings, inadequate facilities and over-hasty settlements are too often the order of the day. At the same time too many cases are coming before the courts which are unripe for hearing, or in which earlier non-legal intervention might have led to agreement and the avoidance of courtroom conflict.
Judges dealing with family disputes do not always have the necessary experience or aptitude. There is no proper system of case management. Cases are heard behind closed doors, protecting the privacy of family members but offering little opportunity for external appreciation, criticism, or even realisation, of what is happening within the system.
The courts lack adequate support services, in particular the independent diagnostic services so important in resolving child-related issues. The burden placed on those who operate the system, especially judges and court officials, has become intolerable. Legal aid and advice services, despite substantial recent investment, continue to labour under an expanding case-load, and too many litigants go to court unrepresented. An unhealthy two-tier system of family justice is developing in which poorer often unrepresented litigants seek summary justice in the District Court while their wealthier neighbours apply for the more sophisticated Circuit Court remedies.
Finally, there is to the whole family justice system a negative ethos which does little to encourage the responsible resolution and management of family conflict by family members themselves. The situation described here is chronic. It 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 of a century.
The family justice system is now in crisis. The solution to this crisis requires a combination of structural and legal reforms together with a major injection of resources. Proposals for structural and legal reform must be sensitive to resource issues.
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We have been conscious of this throughout our deliberations, and we have tried to develop a set of realisable objectives. The strategy we recommend involves a combination of measures designed to promote agreement and avoid litigation where possible, and to improve the organisation and quality of the family courts service where its use is unavoidable. In approaching reform of the courts system we have rejected as infeasible and unnecessary the most radical and costly solution -the creation of an entirely new and independent system of family courts.
We have favoured instead the development of a discrete family courts system with a unified jurisdiction, as a branch of an existing court, making use as far as possible of existing resources, but at the same time offering a more specialist service and one which would accord to family law cases the priority and attention they deserve.
While our proposals recognise that resources are finite, we must point out that there is a price attached to the provision of an efficient and sensitive family justice system. The present structures have been allowed to atrophy for so long that the initial cost is bound to be high. This will be the case regardless of the level within the courts' hierarchy at which the new Family Court is to operate. The same applies to the development of the courts' support services and the alternatives to litigation, in particular mediation services, which in this country are at a very early stage of development.
Moreover, if we are to avoid a repetition of the neglect which has occurred, it is essential to put in place permanent mechanisms for monitoring and reviewing the operation of the family justice system. Written submissions were received from the persons, groups and bodies listed in Appendix A. Many of these were lengthy, and all were carefully considered. We express our thanks to their authors. A Consultative Seminar was held at the Commission's offices on 10 December The persons who attended are listed in Appendix B. This exercise, and the many comments, expressions of concern, criticisms and suggestions concerning the family justice system which it elicited, were of enormous value, and we would like to express our appreciation to those who attended.
The Expert Group on Family Courts, which had been established to assist and advise the Commission in preparing the Consultation Paper, again met to offer the Commission observations and reflections on that Paper. Members of the Group also furnished detailed written responses to a draft chapter on Case Management, a subject which had not been addressed in the Consultation Paper. We wish once more to record our great appreciation to the members of the Expert Group for their commitment to the project and for their wise observations.
They are, however, to be absolved of any blame for the conclusions. The members of the Expert Group were:. We would like to record our thanks to the following persons, who provided advice, information or assistance to the Commission and its research staff during the course of the Family Courts project:.
Chapter 1 of the Consultation Paper on Family Courts examined the structure of the Irish family law system, and provided a detailed description of how family law business is divided between the District, the Circuit and the High Courts. It is not proposed in this Report to repeat that analysis but, rather, to summarise the principal features of the system in order to set the final recommendations of the Commission in context. It also serves as the principal court dealing with matters of child protection under public law.
Its jurisdiction does not extend to the making of major orders affecting status such as judicial separation, annulment of marriage, or declarations of parentage, though it may make guardianship orders. Appeals from it lie to the Circuit Court. The Circuit Court has over recent years been assuming a more central role in family matters and is known, when exercising its family law jurisdiction, as the Circuit Family Court. It has jurisdiction to grant decrees of judicial separation, which may be accompanied by a wide range of ancillary orders.
For a more detailed description, see the Consultation Paper, paras. Many of these orders e. It follows that in many of these matters the Circuit Court has a parallel jurisdiction with the District Court, though in most cases the Circuit Court's jurisdiction is wider in terms of the levels of order which it may make. It may also grant declarations of parentage, wardship orders and injunctions, and legislation is currently being enacted to give it a nullity jurisdiction. Article Other courts District and Circuit may constitutionally be given parallel jurisdiction with the High Court, but the authorities are divided on whether legislation may exclude from the High Court's jurisdiction family matters which are dealt with by the lower courts.
The High Court has retained an exclusive jurisdiction to grant nullity decrees and its full jurisdiction in respect of certain other family law matters such as wardship and some property matters. It has exclusive jurisdiction in relation to a number of adoption matters and in respect of international child abduction cases. The High Court also hears appeals from the Circuit Court. Appeal from it lies to the Supreme Court. The qualifications for judicial office differ from court to court, but the basic condition is a period of practice as a barrister or solicitor.
If lay or part-time judges were to be employed, this principle would place a severe limitation on those who would be eligible for appointment. Further, despite the fact that it has been the practice to appoint District Judges originally for a fixed term, usually of one year, doubts have been expressed as to whether the appointment of fixed-term judges would be consistent with the requirements of judicial independence and objectivity.
See R v. R  I. Ireland  I. Internal arrangements operate in the different courts whereby a judge may be assigned for a specific period to deal with family law cases. In the High Court, for example, the period would be no more than a matter of weeks whereas in the District Court in the Dublin area the period may be much longer. There is also a specialist Children Court sitting in Dublin to which a District Judge is generally assigned for several years.
Judicial rather than administrative tribunals are the primary decision-makers in the family law area. This is underpinned by the provisions of Article Apart from the area of social welfare, where administrative decision-making is the norm, the only major area of family law in which use is made of an administrative decision-making model is that of adoption.
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The power to make adoption orders is vested 7 in an Adoption Board comprising a chairperson and vice-chairperson, who must be legally qualified, and six ordinary members. Doubts have arisen as to whether the Board, in granting an adoption order, might as a non-judicial body be acting unconstitutionally by exercising an unlimited power of a judicial nature. These doubts have never finally been resolved, but the constitutionality of adoption orders made by the Board has been secured by an amendment to the Constitution Art.
Judicial proceedings concerning family law matters are conducted primarily along adversarial lines, the evidence before the court being provided largely by the parties themselves. However, the circumstances in which the judge may assume an inquisitorial role have been expanding, particularly in those cases concerning children where the main concern is to arrive at an outcome which will be in the best interests of the child. Thus in private custody or access proceedings 9 and in public care or protection proceedings 10 the court has power of its own motion to procure reports concerning the welfare of the child.
Section 27 of the Child Care Act, However, it would be wrong to confuse informality with procedural laxity. Adherence to the principles of natural and constitutional justice, as well as to the rules of evidence, remain important and this necessarily results in a certain degree of formality. Restrictions of this broad nature are usually justified as being necessary to protect the privacy of family members and to prevent distress and possible harm, especially to children.
However, the service is not comprehensive and is under-resourced. It is not available to the Circuit Court outside Dublin, and where it is available there are often considerable waiting periods for reports. Out-of court mediation facilities are available in some parts of the country. The government established the Family Mediation Service in Dublin as a pilot scheme in , and has recently announced plans to increase spending on mediation services in and outside Dublin. The Family Mediation Service engages in comprehensive mediation finance, property and children for couples. See, for example, section 45 1 of the Courts Supplemental Provisions Act, See Re McCann v.
Kennedy  I. McGee v. Attorney General  I. However, the courts have not yet ruled on the question whether current restrictions may be broader than is required to achieve the necessary protection. In a sociological study on Marital Breakdown and Family Law in Ireland by Tony Fahey and Maureen Lyons, attention is drawn to the two-tier structure which has developed within the existing courts system:. The upper tier is dominated by cases which are concerned with fully-fledged legal separation, which are focused on the Circuit Court or else try to arrive at separation agreements without going to court, which are represented by private solicitors or, to a lesser extent, by Legal Aid solicitors, and which have an over-representation of better-off couples, particularly in that both partners may have paid jobs.
An instance of this dualism is the way in which the barring order is typically used to achieve a separation at District Court level, often without the benefit of legal representation, while in the Circuit Court the central remedy is the judicial separation. Aim Group, in its Statistical Report , has suggested that:.
If the client has evidence of violence it is much cheaper and quicker to obtain than a judicial separation. Given the legal aid situation it is understandable how barring [orders] can fulfil sic. A number of observations made to the Commission have stressed the undesirability of a family law system operating on two levels, one for the rich and the other for the poor. The number of trained mediators countrywide is still small but growing. A professional structure is developing, and the Mediators Institute of Ireland is working towards a scheme of accreditation.
See Consultation Paper paras. There are also eighteen part-time Centres which are serviced by staff from the full-time Centres for one or two days a month. Due to resource increases, waiting times for appointment with legal aid solicitors have generally been shortened in most of the Law Centres, according to the Board's Annual Report , 23 and it is envisaged that additional solicitors will be assigned to Centres with long waiting lists. The Annual Report records that almost 10, persons received legal advice from the Legal Aid Board in , of whom 3, received legal aid for representation in court.
The increase in the number of persons assisted over the past two years has been due mainly to the employment of more solicitors, the opening of additional Law Centres and the use of private practitioners in providing a legal aid service in certain District Court cases. Taking account of the pilot private practitioner project, the Legal Aid Board's services focus on the lower courts, with the majority of Legal Aid certificates i.
Legal Aid Board, Annual Report , at p.
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At March , waiting times for appointments with a solicitor at a Law Centre varied from one month Athlone, Castlebar, Galway, Limerick, Tralee and five of the seven Dublin centres to nine months Dundalk and Letterkenny. Substantial developments in the legal aid service occurred in The Civil Legal Aid Act, 32 provides for the establishment of a new Legal Aid Board, 33 sets out criteria for the granting of both legal aid and advice, 34 lays down financial qualification requirements for eligibility 35 and requires persons to contribute to the cost of legal aid and advice in certain circumstances.
The extent to which privately ordered, non-litigated settlements are arranged in Ireland is difficult to ascertain. There is a dearth of instructive statistical data, but anecdotal evidence would appear to suggest that out-of-court settlements whether mediated, solicitor-negotiated or otherwise negotiated are quite common. In respect of solicitor-negotiated settlements, the Lyons and Fahey study 39 suggests that:. This legislation was enacted on 16 December However, at the time of writing the Act had not yet been brought into force.
Such negotiated settlements are then formalised through deeds of separation separation agreements or other agreements drawn up by solicitors. In other words, for many family law litigants, their solicitors are the family law system as far as their contact with the system is concerned. Furthermore, it would appear from the comments of practitioners and registrars that, generally, judges give litigants ample opportunity to settle and readily grant adjournments for this purpose. However, the need for the provision of information, counselling and mediation services in order to facilitate out-of-court settlements was highlighted in many submissions to the Commission.
However, it was estimated almost two-thirds of FMS clients reach a full i. See also M. Source: Ms. The criticisms of the existing system made in Chapter 7 of the Consultation Paper 1 have been widely endorsed in submissions and comments made by judges, members of the legal profession and others. No dissent was voiced from the Commission's general expression of concern in paragraph 7. This concern is shared by many professionals working within the system.
Many of the problems derive from under-resourcing, both physical and human. The picture which emerges is one of a system struggling and barely managing to cope with the very great increase in family litigation in recent years. The result is a sad parody of that which might be expected in a State whose Constitution rightly places such emphasis on the protection of family life. We summarise here the main criticisms expressed in the Consultation Paper, further developing some of them.
The increase in family law litigation over the last twenty years has placed the family justice system under considerable strain. Act , 2 introduced a range of new or improved remedies in respect of maintenance, domestic violence and family property. The introduction of the scheme of legal aid in civil cases in made these new, and other existing, 3 remedies more widely accessible. The new system of judicial separation brought in by the Judicial Separation and Family Law Reform Act , together with its attendant ancillary remedies, has generated a substantial volume of new work for the Circuit Court.
Further statistical information, acquired since the publication of the Consultation Paper, provides evidence of the still escalating volume of family law business especially in the District and Circuit Courts. Between and , the total number of family law applications made to the District Court rose from 8, to 14,, an increase of There has been a steady and dramatic rise in the number of family law applications made to the District Court. In total, the District Court dealt with 14, family law applications in the legal year ending 31 July No additional judicial positions were created in the District Court in that period.
For example, applications for custody of or access to children under section 11 of the Guardianship of Infants Act, Statistical Abstract Pn. Statistics also supplied by the Department of Justice, Courts Division. Statistical Abstract. Despite the increase in judicial separation applications illustrated by the above statistics, no additional judicial appointments have been made in the Circuit Court since the enactment of the Act. Applications to the High Court for judicial separation numbered 41 in the period 1. Some of the effects of this escalation in family law business were noted in the Consultation Paper: Department of Justice, Courts Division.
Period Written answer from the Minister for Justice, op. Period 1. Currently, the Minister for Justice has Government approval for the appointment of 15 new judges. District Courts, leading to a wholly unsatisfactory situation in which judges are being forced to make the impossible choice between brief and hurried hearings or intolerable delays. The situation is particularly acute in the Circuit Court outside Dublin, where in some venues a judge may face a list of as many as seventy cases in one day. Included among these cases are applications for judicial separation raising complex issues of family finance and property, and sensitive problems concerning child custody and access.
We have heard of judges sitting late into the night in attempts to complete their lists, but for many cases adjournments for several weeks are inevitable. This is an intolerable situation for judges and litigants alike. The parties and their legal representatives, when faced with the prospect of a lengthy queue, a long wait, a somewhat peremptory hearing, or a lengthy adjournment, are forced to make difficult tactical choices.
Unsatisfactory and hurried compromises may be the result. While negotiated settlements are to be welcomed, those reached in these circumstances are not the most likely to secure the long term interests of a dependent spouse or children. The problems of delay in respect of proceedings for judicial separation have not abated since the publication of the Consultation Paper. The current position is summarised in the following Table which also highlights the variability of patterns of delay in different parts of the country. Judges, probably in the District Court, are often confronted by apparently deadlocked cases in which they sense that reason may yet prevail if only it were given some encouragement.
The common practice of granting adjournments, putting off the day of the order, are symptomatic of this. The problems arising from the fragmentation of jurisdiction between three levels of court include those of difficult tactical choices for legal advisers, and some confusion for their clients particularly where it becomes necessary to involve more than one court. The growing perception, referred to in Chapter 1, that there now exist two parallel systems of justice, one for the poor operating at District Court level and the other for the not-so-poor at Circuit Court level, is a very serious cause for concern.
This contrasted with model new facilities in parts of Dublin. The Consultation Paper drew attention to the absence of any requirement of special qualifications or experience in judges assigned to hear family law cases, and we referred to doubts which had been expressed about the aptitude of some judges to cope expertly and sensitively with such cases.
Specific criticisms included reluctance on the part of some judges to make timely and firm decisions in cases where adjudication is necessary and appropriate. Among comments made to the Commission since the publication of the Consultation Paper have been some to the effect that the Commission somewhat understated the problems attaching to the judiciary, including in particular the problem of achieving a reasonable consistency in decision-making between courts in different.
At the same time we drew attention, in the Consultation Paper, to the very great strain imposed on judges by their often overwhelming case-loads and by the appalling physical conditions in which they are sometimes obliged to work. In the Consultation Paper, concerns were expressed about some of the consequences of holding family law proceedings behind closed doors. Reservations were expressed 30 as to whether the District Court was an appropriate forum for the resolution of any complex or extended family dispute, such as a custody case lasting several days.
A humane system of family law, it is argued, is one which encourages the responsible resolution and management of disputes wherever possible by members of the family themselves. Judicial intervention is of course necessary to prevent exploitation or abuse between family members. The ideal of empowerment should not blind us to problems of inequality which may arise in a system of private ordering.
This apart, it is perhaps time to consider how reforms in our legal processes may help in the process of personal and family empowerment. The Consultation Paper drew attention to the importance of the reporting service provided, especially in child custody and access disputes, by the. Probation and Welfare Service of the Department of Justice. Attention was also drawn to the fact that mediation services are at an early stage of development, that they are thin on the ground where they do exist, and are absent altogether from many parts of the country.
It was pointed out in the Consultation Paper 34 that a review of the scheme of civil legal aid and advice, as it applies to family cases, was outside the Commission's brief. This remains the case, although many submissions made to the Commission emphasised that the development of the legal aid and advice service should be seen as an integral feature in any strategic reform of the family justice system.
In summary, the consultations carried out by the Commission following the publication of the Consultation Paper have confirmed the urgent need for reform which was expressed as follows in that Paper:. The introduction of new or improved family law remedies has taken place without sufficient regard for the need to prepare the courts for their additional burdens, to provide them with appropriate physical facilities, and to ensure the availability of essential support services.
With or without the addition of further remedies the problems outlined above need to be addressed without delay. The introduction of divorce legislation will place further strains on the system. However, in any event, the problem remains of devising just, sensitive and efficient structures for resolving the issues that arise in the context of an increasing rate of breakdown in marital and other relationships. The Consultation Paper concluded that special features attach to family law cases which, when viewed in combination, suggest the need to apply to such cases procedures and safeguards different from those which are appropriate, for example, to commercial disputes.
The special features include the following:. The issues in dispute in a family law case usually constitute only part of a broader set of problems arising from family disharmony. Some of the issues, especially those relating to child rearing, as well as maintenance, have a continuing dimension.
Appropriate solutions must take account of the long, as well as the short term, needs of family members, including the importance of promoting future cooperation between estranged spouses in relation to their child-rearing roles. Some of the issues in a family dispute, especially again those which concern parenting responsibilities, are not resolved in the traditional manner of adjudicating as between competing rights.
The adjudication looks to the future more than the past and seeks a solution which will promote the welfare of the child. The outcome depends in part on predictions of how events and relationships will develop in the future. Making a decision on welfare grounds based on predictions about future human behaviour is not a typical judicial activity. This is not to suggest that judges are inappropriate to make such decisions, nor that judicial expertise in fact finding and the determination of rights has no place in family proceedings clearly much of family law involves these matters.
What is implied is the need for. Special societal interests are usually involved in family law cases.
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There is first the interest which society has in supporting stability in family life generally, and in the social arrangements for the care and nurture of children in particular. Secondly our society accepts that it has a duty to protect family members from abuse or exploitation, especially those family members who are in dependent situations or who are otherwise vulnerable. Thirdly society has an interest in seeing that the obligations which are owed by family members to one another, in relation to such matters as support and housing, are fulfilled. This interest arises partly from society's protective function but also from a desire to avoid dependent family members becoming a burden on the taxpayer.
Paragraph 7. As these constitute the objectives of and the principles underlying our reform proposals, they are worth re-emphasising, and we set them out here in a slightly different format, with some additions and further explanation. A family justice system should provide speedy and effective access to legal remedies and services.
Speed is particularly important where protective remedies are sought in emergency situations. The concept of accessibility implies:. The system should as far as possible avoid the use of procedures which may have a further damaging effect on family relationships, or which may cause harm or unnecessary distress to family members and especially children.
Its procedures should be geared towards the avoidance of court proceedings except where inevitable or necessary in the interests of justice. Family breakdown is usually accompanied by conflict, itself the product of deeply felt emotions. Feelings of anger, resentment, betrayal or injustice may be present, as well as guilt or failure. While it is important for the legal system to recognise and remedy injustice where it has occurred, it should as far as possible avoid the use of rules and procedures which prolong or deepen conflict and hostility.
Substantive law, as well as procedural law, is important here. Procedures designed to minimise conflict will be undermined by substantive rules which invite recrimination. However, conflict cannot always be avoided and where this is so, the task of the legal system is to administer justice. This was emphasised in the introduction to the Consultation Paper:. This is one of the reasons why it is so important to avoid judicial proceedings where it is possible to do so without risk of injustice to the persons concerned.
The system should respect and, as far as possible, support and strengthen existing family ties, and should avoid the use of rules and procedures which unreasonably hinder or deter efforts at reconciliation. The system should promote the resolution by agreement of the problems consequent on the breakdown of a family relationship.