Will we ever put our children first?

Published Waterford News & Star August 1st 2015

Dr Róisín O’ Shea, Partner in Arc Mediation, former Irish Research Council Scholar, and Principal Investigator in the Family Mediation Pilot Project, Waterford Institute of Technology 2013-2016.

The structure of the family in Ireland has undergone significant changes over the last number of decades, with wide sweeping changes commencing this year with the enactment of the Children and Family Relationships Act in April, and the passing of the thirty fourth amendment to the Constitution extending civil marriage rights to same sex couples.
There has been a move away from marriage as the norm, to a more diverse range of families. Following international trends, we are seeing increasing numbers of informal relationships, shifting gender roles, international families and multi-cultural diversity. The ‘family’ is no longer geographically constrained; increased mobility raising complex legal issues regarding international re-location and abduction, enforcement and forum shopping.

What hasn’t changed is our inability to genuinely put the interests of our children first.
Between 2008 and 2013 I travelled Ireland observing family law cases in all eight legal Circuits for my PhD research. It was at times a deeply distressing journey. I saw so much anger, frustration, fear and misery, for both men and women, and it was very difficult at times to continue to observe and remain detached. A striking feature of the family law proceedings that I watched was the invisibility of children. Yet, where there were children, they became the most bitterly fought over “property” of the marriage or relationship. I heard divergent “views” of the child as expressed by the mother, by the father, by the barristers, by court-appointed experts, sometimes by the judge, but never actually heard the views of the child. No child was asked if they wished to speak directly to the judge.
Children in Ireland have long struggled to achieve parity of treatment. The Proclamation of the Irish Republic promised equal rights for all, where children of the nation would be cherished equally in this State, “oblivious to all differences”. However, the 1937 Constitution failed to give effect to these sentiments, creating instead unequal status amongst children, those who were born to married parents and those who were not. The only “rights” stated in the Constitution specifically for children, were for those children who were born to married parents. While we have come some way in addressing the unequal treatment of children, society and our courts, have not stopped viewing them as someone’s property. At first children were owned by their fathers. Under common law, children were essentially chattels of a married unity, where absolute paternal rights dominated. The Custody of Infants Act 1839, for the first time addressed this imbalance, enabling the courts to award custody or visitation rights to a mother, subject to certain conditions. Significant change came with the enactment of the Child Care Act 1991. In the words of the State it “…represents a movement away from the concept of children as parental property to an understanding of the child as a person who has rights by virtue of being a child” [Ireland’s First Report to the UN Committee on the Rights of the Child, 1996] However, during the course of my research it was evident that the pendulum has swung in the other direction, the societal and legal presumption of children as maternal property.
Children are not the property of either parent, they are citizens of the country in which they live with the right to express their opinions, particularly in matters that affect them.
I wanted to carry out research that put a spotlight on our family courts, warts and all, and to shake out the dust and debris accumulated from over 200 years of custom and practice. We all have either experienced the end of a marriage or relationship, or know someone who has. It is part of the human condition that we fall in love, create bonds, enter into unions, sometimes have children, and sometimes want to move apart. When our relationships end, what we need is appropriate support from the State to ensure that while we and our children are most vulnerable, that we are assisted to make good decisions, first for our children, and then for ourselves. Rushing into a courtroom is the start of a war that is likely to leave permanent scars, and can turn our children into objects whose value is described as “access” and whose time is apportioned between warring parents.
Do I think that the Children and Family Relationships Act 2015 will finally give a voice to children, and out their interests first? No, I don’t.
Yes, for the first time in this Act we have two lengthy definitions of what the ‘best interests’ of the child are, but there is a glaring omission. How exactly does a child have their views heard in any legal proceedings about them? Where is the Child Advocate whose job it is to assist the child make their views known, and where is the mechanism for a child to speak directly to a judge? We only have to look to other common law countries, particularly Canada, to see how to ensure that children are genuinely heard.
We owe it to our children to go beyond the traditional role of the court, and to develop a family justice system comprised of programmes and services, including access to legal information, that effectively and meaningfully contribute to the resolution of family disputes, with the courtroom as the last resort, rather than the first port of call.