Family Law Children and the Courts

by Brid Manifold

For any couple who has spent the day waiting around their local District Court for their case to come up, you needn’t tell them what a stressful time it is. On a typical day in the family District Court, the judge will have a long list of diverse cases ranging from enforcement orders against parents who are defaulting on maintenance payments and barring and safety order applications to applications for guardianship, for passports and permission to travel and for maintenance. He or she will often also have to deal with two or more of these applications, made on behalf of one parent.

The judge is required to not only to get through this list, but to assess the validity of all of the applications and to make orders there and then on the day. Many of these orders have serious consequences for the parents involved. In the case of enforcement for failure to pay maintenance, for example, a judge may send the non-paying parent to prison.

Spare a thought too for the children sitting at home. The consequences of decisions such as reducing access, or in more serious cases, ordering supervised-only access, will impact on these children’s lives for many years and often right into and through their adult lives. The court may need a report to be produced with recommendations on contact arrangements. However, with declining budgets, the HSE is less able to provide reporting services, and the cost of private reports can be prohibitive. It is unreasonable to expect judges to make such significant decisions in circumstances of such limited time and facilities.

Despite the increasing pressure coming on the Irish family courts to recognise the enhanced rights granted to children under international Charters and Treaties, our legal process has long been in need of reform. Most recently, the EU Charter of Fundamental Rights, which came into force as part of the Lisbon Treaty, requires that the best interests of the child is a primary consideration in all actions concerning children, and that children’s views are taken into account in matters that concern them, in accordance with their age and maturity. Irish judges differ in their views on meeting directly with children, with most taking the view that the trauma of attending a family law court would greatly outweigh any potential benefit to the child. And of course they are right, as children’s concerns can only be properly addressed in a carefully managed environment, such as a dedicated family law centre where families can access proper information and a range of services from mediators, counsellors, child psychologists, lawyers and ultimately judges.

We can look further afield, across the water and in particular to Australia and New Zealand where alternative dispute resolution models have long been in place for family law cases, with attendance at mediation information meetings being mandatory in these countries now for family law applicants.

I believe that the time has come for a total modernising of our family-law system, in particular for guardianship access and custody cases, where shared parenting arrangements can be examined by a multidisciplinary team of dedicated qualified professionals, such as child psychologists and family mediators.

Such a system would centralise the voice of the child, to ensure that all children get the benefit of a thorough consideration of their family circumstances and where solutions and arrangements that fit their particular family can be put in place and monitored appropriately.