Dáil Éireann debate -
Thursday, 20 Jun 2002

Vol. 553 No. 4

Adjournment Debate. - Family Law.

Mr. Rabbitte

I am grateful to you, a Leas-Cheann Comhairle, for permitting me to raise this important matter as it has affected the rights of children and of many of our citizens increasingly over recent years. The time has come to review the operation of the family law courts and the balance of family law as they impact on the rights of children and estranged fathers. Whatever the rights and wrongs of particular marital breakdowns or separations, there is no doubt but that often the quality of care of the children is adversely affected and on occasion the rights of the estranged father are set aside.

It is important that the child at the centre of a marital breakdown or separation has continued contact with both parents. Even in circumstances where the court prescribes regular access, the order of the court is often incapable of implementation. The availability of suitable housing is frequently the cause but by no means the only cause of effective non-implementation of a custody order. It is customary that the father is required to make available suitable residential accommodation before he is accorded access. Frequently, the man who has left the family home and who may be paying maintenance or is unemployed cannot afford private rented accommodation. In current public housing circumstances, he has virtually no prospect of being housed by a local authority.

Where the mother is so disposed, access can be denied because the father has no suitable accommodation in which to receive the children. Vindicating his rights and the rights of children to have contact with the second parent can be an expensive business often beyond the means of many fathers.

There may have been excellent and even obvious arguments why the family courts should sit in camera and perhaps even, in many cases, should continue to do so. It is difficult to be definitive because we have so little information on the performance of the family courts. Surely it would be possible, in exceptional cases at least, to hand down written judgments or even elaborate decisions that explain the rationale behind the thinking of the court in a manner that would prevent the parties from being identified. Without this happening, it is difficult to reach informed conclusions. I would like to hear the Minister on whether he believes there is a case for justice in the family courts to be administered in public, with the obvious necessary safeguards to do with reporting, non-identification of parties and so on.

Equality is supposed to be for all citizens. Parents of both genders in such circumstances as is contemplated here can and do on occasion use the children as pawns to advance their own case. Our legal aid system does not offer the possibility of adequate redress. Does the Minister not consider that the time has come to establish a civil legal aid system along the lines of the criminal legal aid system? As the system currently operates, it can be impossible to vindicate one's rights without being pauperised for the rest of one's life.

I am sure the Minister will be familiar with an organisation called Unmarried and Separated Parents of Ireland. This is a group of men who have come together to explain the heartbreak that is frequently behind marital breakdown, separation and inability to meet their children in a suitable environment. They have not got the hearing they deserve. Perhaps that is not entirely the fault of the Government but their case deserves a hearing because there are serious injustices and if the new Minister for Justice, Equality and Law Reform were to set his mind to it, improvements could be made now that we have the experience of recent years in terms of assessing the operation of the family courts and the experience to look back and build on for the future.

Mr. Brennan

I am grateful to the Deputy for raising this important issue which deserves more debate in this House than we are giving it this evening because it is important to many people. I am standing in this evening for the Minister for Justice, Equality and Law Reform and I will convey to him what the Deputy said.

The Minister for Justice, Equality and Law Reform asked me to point out that he would caution at the outset that he has no role in the administration of justice which is a matter for the courts. Thus, complaints that the courts, in using their powers under the relevant statutory provisions, make rulings which some people would disagree with are not for the Minister or the Government to respond to and to attempt to do so would be to interfere with the constitutional division of powers between the Executive and the Judiciary. What it falls to the Minister to do is to keep the operation of the relevant law under review and propose changes to the Houses of the Oireachtas where this appears desirable. That is what the Minister pledges to do.

On the issue raised by the Deputy, I am aware of the views of organisations speaking on behalf of estranged fathers that the family law system is not treating them fairly. It is frequently said that many fathers in this situation are deprived of contact with their children as they grow up and suffer emotionally as a result of that. I fully agree that children should have the benefit of a family life which involves both parents even if the parents, sadly, are estranged from each other. This has to be subject to the overriding consideration that the welfare of the child must be paramount. The statutory provisions on guardianship and custody of and access to children are contained in the Guardianship of Infants Act, 1964. This Act has been amended a number of times since it was first enacted and, in this way, has come to reflect changing conditions and social mores.

The position of fathers differs depending on whether they are married to the mother of their child. Section 6 of the Act provides that the married father and mother are joint guardians of their child. Thus, they have the right to make decisions about the child's upbringing and general welfare as well as the duty to care for the child. In the event of the relationship between father and mother breaking down, if it proves impossible to reach a satisfactory arrangement about these matters or about who should have custody of or access to the child, application can be made to the District or Circuit Courts to make appropriate orders. As I have already said, the court, in deciding the issue, must regard the welfare of the child as the first and paramount consideration.

Special provisions have been inserted into the Guardianship of Infants Acts by amending legislation over the years in relation to unmarried fathers. In this way, the law has kept pace with the changing social environment in which we see an increasing number of non-marital relationships where the couple are the parents. Under section 6A of the Guardianship of Infants Act, as inserted by section 12 of the Status of Children Act, 1987, an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under section 2(4) of the Guardianship of Infants Act, as inserted by section 4 of the Children Act, 1997, conferring on the father the status of guardian. Under section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child. Examples of such proceedings are applications for custody and access orders. In making such orders and in determining whether an unmarried father should be appointed guardian, the court has to regard the welfare of the child as the first and paramount consideration. Furthermore, even if an unmarried father has not been appointed guardian, he can nevertheless apply to the court in relation to any matter affecting the welfare of the child.

These legislative provisions are appropriate as they permit the court in cases of disagreement to decide on arrangements for the child's upbringing having regard to the child's best interests.

One concern which has been expressed on a number of occasions by those speaking on behalf of unmarried fathers is that access orders granted in their favour are often flouted by the child's mother who does not, on various pretexts, allow access on the terms ordered by the court. I am concerned that this should happen because it means that an order of a court, which by definition has been made in the best interests of the child, is not implemented as it should be. In this context, section 5 of the Courts (No. 2) Act, 1986, makes it an offence for a person having custody of a child not to allow a person who is entitled to access under a court order to exercise that access. The gardaí are responsible for prosecuting offences under this provision and persons who feel they have been the victims of such behaviour should report the matter accordingly.

The Minister's Department is considering how the legislation relating to access orders is operating and whether amendment to the law might be desirable.

I would also draw the attention of the House to an important commitment which we have included in our programme for Government. This is that we will change the in camera rule in family law cases to allow for general reporting of overall trends while continuing to respect the privacy of those involved. As the Deputy will know, this is an aspect of the administration of family law that concerns fathers' groups and the Minister will follow up on our commitment in this regard.