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District Court Best Practice Guidelines

Introduction

This Circular deals with best practice guidelines in relation to maintenance.

ApproachKey stage 1: Initial consultation and legal advice

  • Take written instructions from the client (before the date of the hearing if a date has already been fixed) in relation to the family details; the history of the parties' relationship; the existing difficulties between the parties; each of their respective incomes; outgoings and assets insofar as they can be ascertained.
  • Ascertain from the client, his or her expectations in terms of what he or she expects to pay / receive by way of maintenance and also whether any voluntary arrangement that the parties might agree, is likely to be adhered to.
  • Manage the client’s expectations including informing the client what is likely to happen if Court proceedings are instituted; the possibility that the Court will impose a solution that no party is happy with; the impact maintenance payments may have on any social welfare benefits being received; and any tax consequences of making/receiving payments.
  • Consider whether it is necessary to seek information from the other party or his/her solicitor in relation to that party’s financial circumstances.

Key stage 2: Post-consultation

  • Contact the other party or his or her solicitor with a view to, if necessary, seeking information; exchanging information; and ultimately, achieving a negotiated maintenance settlement without having to institute Court proceedings or without having to contest court proceedings.
  • If a negotiated settlement is agreed, ensure that it is recorded in writing and that the client is informed in writing, of its terms and the consequences of a failure to comply with the agreement.

Key Stage 3: Legal aid / pleadings

  • If a negotiated settlement is not possible, apply for a legal aid certificate to institute/defend proceedings (if a certificate has not already been granted).
  • Advise the client to attend the District Court office to issue summons (if this is the normal practice in the particular District Court office) and revert with date; or furnish draft proceedings to the District Court office for issue.

Key Stage 4: Court proceedings

  • Prepare a statement setting out the client’s income, expenditure, assets and liabilities and attempt to exchange statements with the solicitor for the other party.
  • Ensure that vouching documentation is available for the court and for the other party’s solicitor, in relation to the items set out in the statement.
  • Ascertain what other proofs are required.
  • Ensure client is aware of format of hearing and the nature of the evidence he or she will be required to give.
  • Ascertain, if not already done, the manner in which the client wishes to pay / receive maintenance payments e.g., through the District Court clerk, by Standing Order, in cash etc.
  • Attempt to reach a resolution of the issues without the necessity of the parties giving evidence.
  • Ensure any Order is split between spouse and children (if appropriate) and that the manner of payment is set out in the Order.
  • Advise the client of the steps available to enforce the Order if there is non-compliance, the possibility of an appeal, and the possibility of an application being made to vary the Order.
  • Confirm outcome and advices to the client in writing.

Key stage 5: Enforcement

  • If payments that are due to the District Court clerk are not made, advise client to make a formal complaint to the clerk. The clerk can then issue an enforcement Summons. As the Summons is a criminal summons the issue of legal aid does not arise.
  • Be mindful of the possibility of the Court treating a breach of maintenance summons as an opportunity to vary a Maintenance Order.
  • If payments are not made to the District Court clerk, apply for a further legal aid certificate to take steps to enforce payments.

Introduction

This part of the circular deals with best practice guidelines in relation to guardianship.

Approach Key stage 1: Initial consultation and legal advice

  • Take written instructions from the client (before the day of the hearing if a date has already been fixed) in relation to, inter alia, the circumstances surrounding the birth of the child; the relationship between the parents; the way in which parental responsibilities have been shared; the history of access; and whether the father is named on the child’s birth certificate.
  • Get client to furnish copies of any existing orders or live proceedings.
  • Explain to the client, the consequences of having a father appointed a guardian, including, if appropriate, the preclusion on adoption.
  • Ensure that the client is fully aware of the distinction between custody and guardianship.
  • Ascertain from the client, the child’s apparent wishes (if the child is of sufficient age).
  • In the event that the father is named on the birth certificate, ascertain from the client, the possibility of both parties swearing a Statutory Declaration on foot of Section 2(4) of the Guardianship of Infants Act 1964 to have the father appointed a guardian or whether it is more appropriate to seek an Order from the Court.
  • Manage the client’s expectations including informing the client what is likely to happen if court proceedings are instituted;
  • contact the other party or his or her solicitor with a view to achieving a solution to the client’s difficulties without contested court proceedings.
  • If considered appropriate and both parties agree, prepare a Statutory Declaration in accordance with the procedures laid down by the Guardianship of Children (Statutory Declarations) Regulations 1998 and arrange to have it sworn. Clients should be made aware of the limitations on Statutory Declarations including the fact that they cannot be registered anywhere.
  • Furnish the original Declaration to the client, a certified copy for the other party, and a copy for the file.
  • If no further action is required proceed to key stage 6 - file closure.
  • If it is necessary to make an application to court, apply for a legal aid certificate.

Key stage 2: Pleadings and further steps

  • Advise client to attend District Court to issue application (if this is the normal practice in the particular District Court office) and revert with date; or issue application from Law Centre / office.
  • Take steps to obtain any proofs that may be required including a copy of the child’s birth certificate.

Key stage 3: Court proceedings

  • Attempt to reach a resolution of the issues without the necessity of the parties giving evidence.
  • Represent the client at the hearing if it is not possible to reach a resolution;
  • Advise client of the Order made; the possibility of an appeal; the deadline for appealing; and the possibility of further applications being made at a later stage e.g, to remove a guardian in the event that an Order appointing a father is made.
  • Confirm outcome and advices to the client in writing.

Introduction

This circular deals with best practice guidelines in relation to domestic violence cases. The Board acknowledges that in domestic violence situations, it may be inappropriate to encourage a client to seek agreement and that there will be cases where the only appropriate remedy is an Order on foot of the domestic violence legislation.

Approach Key stage 1: Initial consultation and legal advice

  • Meet with the client (before the day of the hearing if a date has already been fixed) and take written instructions in relation to the family details; the history of the parties' relationship; and the issues giving rise to current difficulties.
  • Ascertain if the client satisfies the residence / relationship requirements to come within the ambit of the domestic violence legislation.
  • Get from the client copies of any existing orders, including any Protection Order in place, or current proceedings.
  • Ascertain from the client, his or her expectations in relation to the difficulties and in relation to any court proceedings that may be in being.
  • Ascertain from the client what proofs are available or can be obtained to substantiate or defend any application.
  • Manage the client’s expectations including informing the client what the prospects are of obtaining or defending an application for a domestic violence Order in the event that proceedings are issued, and also, if considered appropriate, the potential involvement of the HSE.
  • If considered appropriate, manage the client’s expectations in relation to the appropriate remedy to be sought and in particular, whether a separation ought to be sought.
  • Ascertain the client’s instructions.
  • Ascertain if an undertaking is likely to be appropriate / acceptable / forthcoming and explain implications in terms of enforcement.
  • Consider instituting proceedings if not already in being and if appropriate to do so at this stage (bearing in mind the residency requirements if relevant).
  • Obtain a legal aid certificate before taking proceedings.

Key stage 2: Post consultation and pre hearing

  • In the event that the other party has a solicitor, contact his or her solicitor with a view to ascertaining if a solution to the client’s difficulties can be achieved without recourse to contested court proceedings.
  • Ascertain if the court is likely to make consequential orders on foot of Section 9 of the Domestic Violence Act 1996 without separate applications and if so, prepare for those issues in accordance with the appropriate best practice guidelines.
  • If no solution can be achieved, take steps to obtain necessary proofs.
  • In the event that a legal aid certificate has not already been granted, apply for same.
  • Arrange institution of proceedings.

Key stage 3: Court proceedings

  • Attempt to reach a resolution of the issues without the necessity of the parties giving evidence.
  • Represent the client at the hearing if it is not possible to reach a resolution.
  • Advise the client of the steps to be taken to enforce any Order made (complaint to Gardaí), or the consequences of breaching such an Order, if there is non compliance.
  • In the event that an undertaking has been given, ensure that liberty to apply has been sought (if acting for an applicant) and advise the client of the steps available in the event of the undertaking being breached (seek to re-enter).
  • Advise the client of the possibility of the decision being appealed and the consequences of same.
  • Write to the client confirming outcome and advices.

Key stage 4: Enforcement

  • Enforcement of Domestic Violence Orders is a matter for the Gardaí and a breach of an Order is a criminal matter. Clients who have been granted Orders should be advised to make a formal complaint to the Gardaí if an Order has been breached.
  • As breach of an Order is a criminal matter, there is no provision for advice or assistance on foot of the Civil Legal Aid Act 1995.
  • In the event that an undertaking has been breached, application should be made to re-enter the case.

Key stage 5: File closure

  • Files should be closed and client advised of same within four months of the completion of the hearing.
  • Claim forms for fees or witness expenses should be forwarded to the Board within two weeks of the completion of the hearing or as soon as available; If necessary, steps should be taken to ensure its early availability.

Introduction

This part of the Circular deals with best practice guidelines in relation to custody and outlines the approach to be adopted in relation to:

  • Custody - advice only; and
  • Instituting or defending custody proceedings

While the word custody is used in the Guidelines, solicitors are encouraged, when dealing with clients, to concentrate on the day-to-day care arrangements rather than using particular terminology.

Custody - advice only

Key stage 1: Initial consultation and legal advice

  • Take written instructions from the client (before the day of the hearing if a hearing date has already been assigned) in relation to, inter alia, the history of the relationship between the parents and the way in which parental responsibilities have been shared.
  • Get from the client, copies of any court orders or current proceedings.
  • Ascertain from the client, the child’s apparent wishes (if the child is of sufficient age).
  • Advise client appropriately suggesting practical resolutions to difficulties including, where relevant, third party intervention; and having particular regard to the solicitor’s obligations on foot of Section 20 of the Guardianship of Infants Act 1964 (as amended) to advise the applicant of the possibility of engaging in counselling, mediation or effecting a deed or agreement in writing.
  • Manage the client’s expectations including informing the client what is likely to happen if Court proceedings are instituted; the possibility that the Court will impose a solution that no party is happy with; and whether or not it might be more appropriate to seek better contact arrangements rather than formal custody.
  • Contact the other party or his or her solicitor with a view to achieving a solution to the client’s difficulties without having to institute Court proceedings.
  • If it is necessary to make an application for legal aid, apply for legal aid certificate.

Instituting or defending custody proceedings

Key stage 2: application for legal aid

  • Ascertain if there is merit in instituting / defending proceedings or if the more appropriate application to be made on behalf of the client should relate to contact with the child/children.
  • Apply for delegated legal aid certificate indicating whether legal aid should be granted/refused having particular regard to Sections 24(a) and (b) of the Act. It should be made clear to clients that there is no guarantee that a legal aid certificate will be forthcoming to institute or defend custody proceedings.
  • All requests for authority for independent reports should be made to the appropriate unit in Legal Services Section. Where a report is authorised and the other side is not legally aided, 50% of the cost only should be borne by the Board, within the approved limits.

Key stage 3: Pleadings and further steps

  • Advise client to attend District Court to issue application (if this is the normal practice in the particular District Court office) and revert with date/or issue application from law centre/office.
  • File Certificate pursuant to Section 20(3) of the Guardianship of Infants Act 1964 (as amended).
  • Take steps to obtain any proofs that may be required including any independent assessments that are required.
  • If necessary, make a preliminary application to the court for an independent assessment in relation to the welfare of the children, bearing in mind the responsibility to ensure that the assessor’s fees have been authorised. It is essential that the legal aid certificate, or an amendment thereof, authorises the obtaining of a report before such a preliminary application is made.

Key stage 4: Court proceedings

  • Attempt to reach a resolution of the issues without the necessity of the parties giving evidence.
  • Represent the client at the hearing if it is not possible to reach a resolution.
  • Obtain Order (either on Consent or on foot of a Judge’s decision).
  • Advise the client of the steps that can be taken to enforce the Order if there is non-compliance.
  • Advise the client of the possibility of an appeal.
  • Confirm outcome and advices to the client in writing.

Key stage 5: Enforcement

  • It is not the responsibility of a solicitor to monitor custody arrangements or agreements.
  • Enforcement of Court Orders is generally a matter for Courts. Clients should be advised to make a formal complaint to the District Court clerk if a custody Order has been breached. The court clerk can then issue a Summons in relation to the breach. As the summons is a criminal summons the issue of legal aid does not arise.

Solicitors should be mindful of the possibility of the Court treating such a Summons as an opportunity to vary a Custody Order.

Introduction

This part of the Circular deals with best practice guidelines in relation to access. While the word access is used in the Guidelines, solicitors are encouraged, when dealing with clients, to concentrate on the contact arrangements rather than using particular terminology. It is not envisaged that a solicitor would monitor access arrangements and this circular outlines the approach to be adopted in relation to: access advice only; and instituting or defending access proceedings.

Access - advice only

Key stage 1: Initial consultation and legal advice

  • Take instructions.
  • Ascertain from the client, the child’s apparent wishes (if the child is of sufficient age).
  • Advise client appropriately, suggesting practical resolutions to difficulties including, where relevant, third party intervention and having particular regard to the solicitor’s obligations on foot of Section 20 of the Guardianship of Infants Act 1964 (as amended) to advise the applicant of the possibility of engaging in counselling, mediation or effecting a deed or agreement in writing.
  • Manage the client’s expectations, including informing the client what is likely to happen if Court proceedings are instituted and the possibility that no party will be happy with the Court solution.
  • Contact the other party or his or her solicitor with a view to achieving a solution to the client’s difficulties without having to institute Court proceedings.
  • If it is necessary to make an application for legal aid, apply for legal aid certificate.

Instituting or defending access proceedings

Key stage 2: application for legal aid

  • Ascertain if there is merit in instituting / defending proceedings.
  • Apply for delegated legal aid certificate indicating whether legal aid should be granted/refused.
  • All requests for authority for independent reports to should be made to the appropriate unit in Legal Services Section. Where a report is authorised and the other side is not legally aided, 50% of the cost only should be borne by the Board, within the approved limits.

Key stage 3: Pleadings

  • Advise client to attend District Court to issue summons (if this is the normal practice in the particular District Court office) and revert with date/or issue proceedings from law centre/ or refer to private practitioner.
  • File a Certificate pursuant to Section 20(3) of the Guardianship of Infants Act 1964 (as amended).
  • Take steps to obtain any proofs that may be required.

Key stage 4: Court proceedings

  • Attend hearing.
  • Attempt to reach a resolution of the issues without the necessity of the parties giving evidence.
  • Represent the client at the hearing if it is not possible to reach a resolution.
  • Obtain Order (either on Consent or on foot of a Judge’s decision).

Special occasions and holidays should be raised and taken into account in any order or agreement.

Key stage 5: Enforcement

  • It is not envisaged that a solicitor would monitor access arrangements or agreements.
  • Enforcement of Court Orders is a matter for Courts. Clients should be advised to make a formal complaint to the District Court clerk if an access Order has been breached. The Court clerk can then issue a breach of access summons. As the summons is a criminal summons the issue of legal aid does not arise. Solicitors should however be mindful of the possibility of the Court treating a breach of access summons as an opportunity to vary an access Order.