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Dáil Éireann debate -
Thursday, 8 May 1997

Vol. 479 No. 1

Other Questions. - Family Law Proceedings.

James McDaid

Question:

5 Dr. McDaid asked the Minister for Equality and Law Reform the plans, if any, he has to ensure the proper sensitivity of the family law process, particularly as it relates to fathers, further to the remit of his Department. [12409/97]

Ivor Callely

Question:

31 Mr. Callely asked the Minister for Equality and Law Reform the way in which the Children Bill will address the issue of gender imbalance in favour of one parent regarding custody of a child; and if he will make a statement on the matter. [12334/97]

I propose to take Questions Nos. 5 and 31 together.

In the course of my reply to questions on several occasions I set out the context in which the present law on guardianship of, custody of and access to children operates. I indicated that the court must, in proceedings under the Guardianship of Infants Act, 1964, regard the welfare of the child as the first and paramount consideration. That important criterion, which is common to many other jurisdictions, is a matter which the court must have regard to in all the circumstances of the case. I indicated also that in areas of disputes relating to children, the best approach for all concerned, parents and children, may be for the parents to attempt to agree on the arrangements for their children without court intervention but that, in the absence of agreement, the court will inevitably have to make hard and difficult decisions which may include the granting of custody to one parent and access to the other.

I mentioned I would review the law on guardianship in the context of preparation of the Children Bill in my Department. That Bill is now before the House. It provides for a new emphasis on counselling and mediation as alternatives to court proceedings concerning children. It encourages couples who are in dispute to think in terms of agreeing such matters as custody of, and access to, children without the need for court intervention. It also clarifies the law in relation to joint custody and provides that, in appropriate cases, custody of a child may be granted by the court to a father and mother jointly.

There is a range of other reforms in the Bill. Under the law as it stands, a father not married to the mother of his child cannot be the guardian of his child without a court order. I have made provision in the Bill for such fathers to be appointed guardian of the child by agreement with the mother without the need to go to court as at present. The Bill allows relatives, such as grandparents, to apply, subject to conditions, to the courts for access; it extends to the District Court power to order social reports in guardianship, custody and access proceedings generally; and it contains provisions relating to giving evidence by children in certain civil proceedings. The Bill also specifies a system of guardianship ad litem with legal representation, subject to certain strict conditions.

I look forward to debate on the important social provisions in the Bill which address the sensitivity of the family law process. They also address, as far as possible, the issue of gender balance, taking into account the need to have regard to the principle of the best interests of the children.

The Minister will agree that this very important issue is simmering and we will hear a great deal about it in future. He has published the Children Bill, which I hope will be discussed here at some future stage. However, will he agree that the courts and Judiciary, as currently constituted, are totally incapable of dealing with this problematic area? Will he also agree that the whole area, which probably requires constitutional change, is based on a patriarchal view of society which held that the mother's place was in the home and that she automatically had to take care of the children? The roles of men and women have changed dramatically over time.

There have been some horrifying cases in this area due to the inadequacy of the courts. Some 95 per cent of custody cases are decided in favour of the mother. For example, in the case of a man and woman with children who have been together for six years and where the man is the homemaker, if the mother went to England with another man she could return and get custody of the children in court, although the father had looked after them for four years. There is something wrong in the whole area——

That should be adequate for the time being. Let us hear the Minister's reply.

——which must be dealt with. Does the Minister feel that his Bill deals adequately with this situation? Will he agree there is a major constitutional problem at present?

I cannot agree with Deputy McDaid that, as he put it, the courts and Judiciary are totally incapable of dealing with these cases. I would like to think that the courts and Judiciary deal with these cases, by and large, in a careful, measured and sensitive manner. Of course, judges may vary from time to time and cases are occasionally appealed. One cannot speak about every case. However, by and large, the Judiciary are extremely careful and cautious people who sympathetically apply the law.

As I indicated, the law on the issue of custody of, and access to, children is very clear and is based on the basic, overriding principle that decisions on custody and access must be based on one primary consideration, which is the best interests of the child. In some cases, that may involve giving custody to the mother, in some to the father and in others the optimal decision is joint custody.

There have been some doubts on whether the option of joint custody has been available to the courts until now. It is an important option which is why I have specifically provided jurisdiction in the Children Bill to enable the courts to grant joint custody in appropriate cases. That is an important new indicator to the courts that joint custody, subject to whatever terms the court may consider apply to an individual case, should be awarded where appropriate.

I do not know where Deputy McDaid got the statistic that in 95 per cent of cases custody is awarded to the mother. I have no knowledge of such a statistic. By and large, the courts deal with these cases carefully and always have the best interests of the child in mind.

I disagree with the Minister. I do not want to criticise the courts or the Judiciary because this is a new area but, particularly with the advent of divorce legislation, it will become an increasing problem. Will the Minister agree that, while one can become a failed husband, that does not necessarily mean one is a failed father? If the statistics which I have quoted are factual, it appears that the Judiciary is saying in its interpretation of the current legislation — which is the proper interpretation — that if one is a failed husband one is also, in effect, a failed father.

It is not a legal proposition that if one is a failed husband one is also a failed father. That is a different matter and I do not think the courts proceed, as far as custody of, and access to, children is concerned, on that basis. My experience when I practised in the family law courts was that the judges approached each case with great sensitivity, sympathy, patience and understanding and always took the best interests of the child into account. I am sure Deputy McDaid will agree that is the correct criterion on which the law should be based. It is right and proper that the law has always been based on that criterion.

The one shortcoming in this area was the absence of jurisdiction to give a clear signal to the court that it could award joint custody. There has been a great deal of discussion on that issue. Most of the organisations working in this area feel that option should exist and should be used on an increasing basis. I agree with that suggestion and have included provision for specific jurisdiction in that regard in the Children Bill which I hope will be enacted as soon as possible. I also hope it will be an additional useful facility to the courts where appropriate when dealing with these difficult and sensitive cases.

Does the Minister accept that Deputy McDaid has touched on an important point regarding the administration of justice by the courts in family law matters? Does he also accept there might be a considerable improvement in the decisions handed down by courts were the judges to receive specific training in the context of courts dealing exclusively with these matters?

There have been considerable changes to family law in recent years, for much of which the Minister has been responsible. Decisions handed down by judges will, of necessity, become more frequent. Such cases are, more often than not, very sensitive. In view of this, is there not an argument for jurisprudence and the Judiciary to develop in this area?

I agree with Deputy O'Donoghue that any training that could be provided in this specialised area for members of the Judiciary who practice in it could only be welcome. The House has discussed this on occasion. I will raise with my colleague, the Minister for Justice, the question of examining what means might be put in place or examined in consultation with the Chief Justice and the Presidents of the High Court, the Circuit Court and the District Court. The arrangements must be made in agreement with the Judiciary, whose members are independent officers under the Constitution.

Will the Minister advise if the Judiciary has shown any willingness to embark on such training programmes? Will he also agree that the family law courts are unsuitable to this process and this area needs to be reformed? Does he consider that the Children Bill will have any effect in that regard?

I have no information regarding the willingness or unwillingness of the Judiciary with regard to such approaches, but I will raise the matter with the Minister for Justice who has responsibility in this area. I am not sure what Deputy Keogh means when she says the courts are unsuitable. Does she mean the personnel or the premises?

I do not agree on either count, although that is not to say there is not always room for improvement on both counts. These are primarily a matter for the Minister for Justice and I suggest Deputy Keogh raise the appropriate questions with her Department.

The point made by Deputy O'Donoghue is relevant. I do not understand why the Judiciary, especially in this area, cannot hold annual or biannual conferences to try and level matters because huge problems will arise.

Does the Minister accept that men and women should be given equal treatment as parents? The glass ceiling effect in the employment area, where women progress to a certain level but go no further, applies to men in the case of parental equality, because women generally have guardianship rights and must look after children. This would not happen if fathers had more balanced rights. I do not want this to be seen as an attack on women.

The Children Bill as drafted is probably contrary to Article 42 of the Constitution. Article 42.1 states:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

Perhaps the Minister will consider this when reexamining the Bill. Does he accept that men and women should be given equal treatment as parents?

I do not consider that Deputy McDaid has put the question in the right way. In so far as children are concerned, we are all agreed that the criterion is and must be what is in the best interests of the child. That will vary from case to case and will depend on the specific circumstances in each family where the question of access or custody would come up for determination.

With regard to the Children Bill, I took one anomaly out of the existing legal system, which is that where the desirable point is achieved in a specific case, where the mother and the father agree that a joint guardianship position is to apply, they may achieve that without going to court. In the case of a mother and father who were unmarried until now, every case had to go to court, even in the case of agreement, and many hundreds of parents were put through that unnecessary difficulty. I have provided that, where agreement is reached, they may make that arrangement by the procedures set down in the Bill without having to go to court. It is a reasonable step.

I am happy to discuss the Bill with Deputy McDaid and all Members of the House and I hope we will have an opportunity to do so. I will keep an open mind on the question until the Bill is passed. It can be considered further on Committee Stage.

We will welcome the Minister back to the House after the general election.

Will the Minister define what is meant by joint custody? This is another area that is abused. Joint custody should not mean that the father or mother get nine or ten hours custody of the child per week. The meaning of joint custody should be defined. I am aware of cases where one parent has nine hours access a week and the other parent has been advised to move to another part of the country or to the UK so that the other party is unable to avail of the joint custody. What does the Minister mean by joint custody?

Joint custody could not have been abused up to now because it has not been used to date. There was no specific provision for it in law before I included it in the Children Bill, which was published recently. How it will work is a matter for the courts to determine. It will be open to the courts to apply particular conditions to its operation in individual cases. The concept of joint custody is well developed in other countries and it has a useful role to play in our family law. This is why I made provision for it.

It will vary from case to case but, ideally, the parents will agree specific custody and access arrangements. I agree it is difficult where parents fail to agree and it is left to a judge to determine the specific arrangements. The court must always bear in mind the best interests of the child in devising how the custody and access arrangements will operate. That will vary from case to case but, under a provision in the Children Bill, if it is enacted, the court could give overall nominal custody to both parents and then decide specifically how that would operate in practice.

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