Joint Committee on Justice debate -
Tuesday, 25 Oct 2022

Enforcement of Court Orders relating to Child Maintenance, Access and Custody: Discussion

Chairman

Members and visitors are welcome to this afternoon's proceedings. We will call in our witnesses in a moment and I will do the housekeeping, etc., when they are all with us. The witnesses are now welcome to join us.

I welcome our witnesses. The topic before the committee today is the enforcement of court orders relating to child maintenance, access and custody. This is one of our family law topics. The committee takes elective modules and matters of interest to members of the committee every so often. That is the subject of today's hearing. Our guests might raise their hands as I go through the attendance if their names are not on the title bars in front of them. I welcome Ms Louise Bayliss, the co-founder of Single Parents Acting for the Rights of our Kids, SPARK; Ms Karen Kiernan from One Family; Ms Stephanie Whyte, assistant director of children's services at Barnardos; Mr. Damien Peelo, chief executive officer of Treoir; Ms Gayle Smith, information and policy office of Treoir; Mr. Mark Garrett, director general of the Law Society of Ireland; and Dr. Geoffrey Shannon, senior counsel, director of policy at the Law Society of Ireland. All our guests are sitting in the order in which they appear on my list, which is a good start. We are on message and on sequence so far.

I will address a small bit of housekeeping before we get into the matters proper. All our guests are probably familiar with the conduct of hearings here and in similar bodies. However, I will recap on parliamentary privilege. Witnesses and members are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable, or to engage otherwise in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they may be directed to discontinue these remarks. Members will be aware of that. I call on members and witnesses not to defame anybody outside the room. That is the simple way of putting it. I am sure our guests and members are well aware of that but it is important to repeat at the outset.

All of the business performed today will be recorded and broadcast live on the Oireachtas channels. I ask attendees who have mobile phones or other devices to switch them to airplane mode because otherwise they might interfere with the recording and sound system.

The way we conduct our business is to take short opening statements from our witnesses to set the scene. We will come to each of our guests in due course.

They will have three minutes in which to make those opening statements. It is reasonably short but we set that time because it allows for more time later for the to-and-fro, which we find can be more useful. We will then have six minutes for each of our members to put their questions to the witnesses. We will go around the table in the order members indicate and take one member at a time. There is a six-minute slot for that member to ask questions and for the witnesses to respond. It is up to individual members whether they want to have six one-minute engagements or a six-minute monologue. Each member has a mandate so I will not interfere with that. I will, however, move it on after six minutes to the next member who is coming in. If needs be, we will then have a second round of three minutes and so on. Generally, we find that if somebody really wants to respond to an item, it is very likely that it will arise in the following interaction anyway so everybody at the meeting will hopefully have their say across the different interactions. The order in which the opening statements will be taken is the same order in which I introduced the witnesses. For convenience, we have a clock in the corner that we use for housekeeping. The witnesses might keep an eye on that as they are speaking in order that that they can tailor their remarks. We will start with Ms Bayliss from SPARK Campaign Ireland.

Ms Louise Bayliss

I thank the Joint Committee on Justice for the opportunity to talk to members about the issues regarding the enforcement of court orders. SPARK is a peer-led advocacy and support group for lone parents. We offer unique insights into the lived reality of parenting alone in Ireland.

Parenting alone is extremely challenging and while co-parenting with a non-cohabiting second parent is preferable, this is not always possible, especially in cases where abuse has been historically present. Many parents are able to agree to access, custody and child maintenance without recourse to the courts and in other cases, parents may agree terms through mediation and will then enforce this through a legally binding court order. The problem, however, is where parents cannot agree on these issues and need to go to court where a judge decides the matters. The fact that parents are not able to agree to these fundamental issues without recourse to the court system can in itself indicate that there may be ongoing conflict, and non-compliance of court orders is likely.

The courts issue orders on the basis of compliance and once the order is issued, to a large extent, it is expected that the matter is complete. However, many of our members experience post-separation abuse through the non-compliance of court orders involving maintenance and access. Cosc, the national office for the prevention of domestic, sexual and gender-based violence, recognises non-payment of child maintenance as financial abuse. Yet, as we rely on courts that predicate their position on compliance being the norm, many lone parents will continue to experience ongoing conflict and, in the end, may forfeit maintenance rather than continuing through a court system that for many feels ineffective.

In our most recent research from April 2022, 36% of respondents claimed they were owed an average of €8,300 in maintenance arrears but had given up pursuing it and were no longer using the courts to enforce maintenance orders. Many parents report that a parent will fail to turn up for enforcement hearings and a court can do nothing until a bench warrant is executed. That is very problematic as there is no prosecuting guard. Other options such as attachment of earnings can be circumvented by the debtor changing employers.

Access is also an issue for many parents. This can be both where access to the child is denied or where a child is prepared for an access visit and is left waiting when a parent fails to turn up. For too many parents, access and maintenance are linked. The biggest loser in this scenario is a child, who may have a damaged relationship with a non-custodial parent. We believe that maintenance and access should be seen as two separate issues. This could be achieved by a statutory maintenance agency that deals effectively with finance and which should take the conflict of payments from a family and allow children to have healthy relationships with both parents, if appropriate. Family law and non-compliance of court orders is a very complex issue to discuss in such a short time but I would be happy to answer any questions members may have.

Chairman

I thank Ms Bayliss very much. She came in perfectly on time. I thank her for her brevity. She made very salient points on which we will no doubt engage as the meeting goes on. Our next speaker is Ms Kiernan.

Ms Karen Kiernan

We really appreciate the committee looking at this important issue for the families with whom we work. It is a constant source of conflict and difficulty for separated families.

We know much research has been done into one-parent families and the fact that they are multiply disadvantaged. Not much research has been done on child maintenance, access or custody, however. Some work has been done by us in One Family and by SPARK. Looking at what we have done and at international research from other countries, we can see that a whole suite of common problems exist where the State does not become involved in the management of maintenance. At a national level, we see child poverty rates going up. We also see repeated and inappropriate use of courts, which all costs the State money and difficulty.

At a personal level, we very much see in our services the conflict this causes within families who are trying to share parenting or separate. Of course, there is the hardship for the children who are not being appropriately supported by both of their parents. We are also aware that because of the conflict, there can be links between the payment of maintenance and access or contact for children. Although these issues should be considered separately, they are sometimes looked at together. We are aware that there are many difficulties in the administration of maintenance by the Department of Employment Affairs and Social Protection, for example, where it can be multiply assessed as means. Sometimes, even if it is not paid, it is assessed as means. We note that during the lockdown, the Department changed its policy and started to believe parents who said they had sought maintenance. We would like to see that continued; it was very welcome.

I will mention our recommendations. We would like the Department of Justice to commission independent research looking internationally. We have done some work on this. It is extremely difficult to know, not just from looking at the published papers but also from speaking directly to parents and organisations, how the different systems impact them. We have not yet found a completely perfect system. That needs to then be looked at in an Irish context to see what can happen. We would like the recommendations to train staff in the Department of Employment Affairs and Social Protection, Courts Service, legal professionals and the Judiciary. That recommendation was made in the Oireachtas committee report on lone parents as well as in the domestic, sexual and gender-based violence, DSGBV, strategy. We would like child poverty to be recognised, with maintenance as part of that, in the next iteration of the children and young people's framework, that is, Better Outcomes, Brighter Futures: The National Policy Framework for Children and Young People 2014-2020. Child maintenance should be treated as a non-taxed, non-means-tested payment as with child benefit. Really, it needs to come out of the family law courts. It should not be linked to other issues. An independent agency should do two things. It should assess what should be paid and ensure it is paid through enforcement. I thank the committee.

Chairman

I thank Ms Kiernan. We will move on to Ms Whyte from Barnardos.

Ms Stephanie Whyte

I thank the committee for inviting me today to contribute to this important topic. Barnardos provides front-line services to children and their families who are affected by traumatic and challenging life situations including poverty, parental mental health difficulties, neglect, bereavement, addiction and parental separation. We offer a range of early intervention and targeted services in our 45 service locations across the country, in family homes, schools, community centres and in communities themselves.

In terms of parental separation, a recent analysis by Barnardos of families accessing our services showed that one third of children who currently access our services are involved in parental separation. More and more families being referred to our services to help children and their parents deal with issues relating to parental separation. These are the situations that get referred to us for entrenched conflict. Sometimes, the relationships have become very difficult and sometimes toxic. As a result, one or both of the parents cannot deal with the separation in an amicable way that is most beneficial to any children involved. The court experience for families in which parents are separating can be very complex and confusing for all the parties, particularly for the children. The whole process of going to court - the language used, the timing, the formality of seeing solicitors and judges - can be very unclear to the eyes of children. The lack of certainty and clarity about timelines and potential outcomes can make things appear very complex. One of the most complex elements of the court system around court orders and decisions needs to be about ensuring the best interests of the child. Unfortunately, orders can be particularly ineffective if they get the balance wrong between balancing the rights of the parents and the best interests of the children.

Children understand that they are not the sole determining factor in court cases regarding access and custody. Sufficient mechanisms must be in place to ensure their voices and views are gathered, however, and that adequate attention and consideration is given in terms of the decisions but also the pace of implementation and supports to implement those decisions.

There is a lack of professional support for parents and children after separation and family transition, particularly in terms of accessing custody. More resources should be directed towards earlier supports for parents and children to deal with separation, raise awareness of the potential impact of acrimony on children and ensure strategies for parents to ensure a positive focus on children. This might reduce the number of families who use the courts as a way of managing family conflict.

Many of the families and children we support who are living in separated households rely on maintenance payments to meet essential costs. If maintenance goes unpaid, it can drastically affect their budgets and jeopardise their ability to afford essentials. Many parents we work with cannot and do not seek maintenance from their previous partners, typically as a result of difficulties in those relationships, wider acrimony between both families and sometimes in the community, a history of previous partners not paying and a belief that maintenance will not be paid. Sometimes it could be a threat to their own recovery and sobriety. Therefore, we think the system is not working for children.

Chairman

I thank the delegates from Barnardos. The next presentation will be from Treoir. I invite Mr. Peelo to make his opening statement.

Mr. Damien Peelo

Treoir welcomes the opportunity to address the joint committee on the important topic of the enforcement of court orders.

Treoir works with its member organisations to improve the lives of parents who are not married to each other. Our national information service deals with thousands of queries each year from parents, many of which queries are about maintenance. Treoir provides legal information to those parents and their extended families and professionals through its services and by way of nationwide outreach.

We welcome the examination of the maintenance-recovery procedures. We make our submission to this committee in the context of the ongoing work on the reform of the family court system. Each year, Treoir receives thousands of queries about child maintenance from mothers, fathers and extended family members, and our submission is based on their experiences. A majority of calls relate to the interaction of maintenance payments with the one-parent family payment and other benefits and highlight the interaction between social protection, maintenance and lone parents experiencing poverty.

Under current social welfare policy, the onus is on the custodial parent to pursue maintenance on behalf of the child. Where an agreement of maintenance between both parents cannot be reached, payment of child maintenance must be sought through the courts. This can be a daunting and even traumatic experience, especially when there is a history of harassment or domestic violence. Pursuing maintenance through the courts is time-consuming and expensive. One caller to our information line described a 20-year battle in the courts to secure maintenance and arrears from an ex-partner as financial abuse.

Even when a court order is granted, it is not a guarantee that maintenance will be paid. However, once that court order for maintenance is made, the amount is counted as means regardless of whether the maintenance is paid. Consequently, non-payment of maintenance can result in families living on an income lower than their social welfare entitlement. Lone-parent families already experience higher rates of deprivation than two-parent households, so the insecurity of income through the non-payment of child maintenance leaves them particularly vulnerable to poverty and deprivation. In the context of the persistence of child poverty in lone-parent families, Treoir believes certainty in the recovery of child maintenance through a statutory agency will go some way towards alleviating child poverty by providing the income security that lone-parent families need.

Article 27 of the UN Convention on the Rights of the Child lays out that the state is required to take appropriate measures to secure the recovery of maintenance for the child from parents or other persons having financial responsibility for the child, both within the state party and from abroad.

Parenting alone brings many challenges. Obtaining court orders for maintenance from the non-custodial parent should not be one of them. There needs to be a standardised, fair system of assessment and recovery of child maintenance. Treoir feels the establishment of a State maintenance agency would have a key role in that assessment and recovery maintenance. An immediate benefit would be a reduction in time-consuming and often futile child maintenance cases currently in the court system. Most crucially, the often-arduous task of pursuing child maintenance can be taken out of the hands of the custodial parent, resulting in a higher rate of enforcement of child maintenance being paid in Ireland and, potentially, greater engagement by both parents in their children’s lives.

Chairman

I thank Mr. Peelo. Last but not least is the Law Society of Ireland. I invite Mr. Garrett to make his presentation.

Mr. Mark Garrett

I thank the committee for putting a spotlight on these important issues. I am joined by my colleague Dr. Geoffrey Shannon, SC, the Law Society’s director of policy. He is also a member of the Law Society’s family and child law committee and is very much aware of the current issues and concerns in this area.

The Law Society’s submission to the joint committee made the following five recommendations in response to questions raised - increase the use of the award-of-costs provision to alleviate the financial burden on lone parents when seeking payment of maintenance owed, and act as a penalty for the respondent party; maximise the reliefs available under the Children and Family Relationship Act 2015 where there have been consistent breaches of access orders; introduce guidelines to assist in determining appropriate maintenance contributions; establish set penalties for breaching court orders relating to child maintenance, access and custody; and, perhaps most significant, support the establishment of a State child maintenance agency to assist in matters relating to child maintenance.

We have provided detail of how those recommendations were arrived at. We will be very glad to discuss this further today if helpful. We also provided the committee with our 2021 submission to the Child Maintenance Review Group. This highlighted the importance of maintenance for the support and well-being of the child from both financial and social policy perspectives. We also welcomed the proposed establishment of a State maintenance agency, similar to the UK’s Child Maintenance Service, and detailed the various services and supports that might be provided through such a vehicle. These include providing guidance on the calculation of appropriate levels of maintenance; assisting parents in reaching agreed maintenance arrangements; assisting in – or, where appropriate, bringing – court applications to determine maintenance when it is in dispute; acting as the collecting agent for maintenance payments in appropriate cases; and engaging in the enforcement of maintenance and the collection of arrears, either directly or in concert with other State agencies.

We believe the cumulative effect of centralising these supports through one agency would be to minimise acrimony between the parties, to the ultimate benefit of the child or children involved.

The submission also compared enforcement provisions across various jurisdictions that may assist the committee in its work.

We believe these measures, together with progress on the family court Bill, which we appreciate has been listed as priority legislation for publication this autumn session, have the potential to greatly improve users’ current experience of the family law infrastructure in the State. We will be glad to take any questions and assist the committee in any way we can. Again, I thank members for their time and considering these important matters.

Chairman

I thank Mr. Garrett for the presentation and submission. I thank all the delegates for having submitted statements in advance of the meeting. We will now open the discussion to members.

Deputy Niamh Smyth

I thank all our witnesses for their insightful presentations. I wholeheartedly agree with them that the system we have does not work. In some scenarios, it can adversely affect relationships with non-custodial parents if they are not paying maintenance. It costs so much and takes so much time to achieve a settlement. Parents get exhausted and run out of the money required to instigate a challenge against the parents who are not paying maintenance. It puts the parent who has ultimate responsibility in a very precarious position.

I have a question to which all of the delegates may respond. The court system can take months or years to go through and can involve an endless, futile journey for parents. Are there models abroad with timeframes that work? Can we talk about the solution these would provide by comparison with our system, which imposes a huge financial burden on parents pursuing a challenge? A new agency sounds like a great idea and plan, but what would be the cost to parents? What kind of timeframe would be involved in achieving this resolution? Can we look to models somewhere else that can give us some guidance?

Dr. Geoffrey Shannon

I thank the committee for inviting the Law Society of Ireland to make a submission on this issue. There are a number of comparative models. I am suggesting to the committee, on behalf of the society, that the best way of approaching this is to embed a child maintenance agency within the existing structure in order that there be no legal vulnerabilities. We could have a child maintenance agency established under statute and with orders ultimately appealable to the District Court, which would mean a lot of routine applications could be dealt with by the agency.

In our submission, we looked at a number of models. There are two models to consider currently if a child maintenance agency is to be established, namely, the models from the UK and the Netherlands, both of which have such an agency in place. In terms of speed, we know from the experience in other jurisdictions that a child maintenance agency is very effective in dealing with applications on a consensual basis. The real problem is with enforcement. That is where we could look at investing in agency powers that do not trespass on the powers of the court. There is a delicate balance to be found to ensure there is no trespassing on what ultimately are the powers of the court. There has been some recent Supreme Court jurisprudence on what is and is not possible. It is the view of the Law Society of Ireland that a child maintenance agency will improve the efficiencies within the system and result in more timely decisions.

However, there are other issues that perhaps need to be addressed and the question of what role a child maintenance agency would play in that regard. We must remember that maintenance is a private law obligation. In regard to State supports, there is a need to ensure the agency works very closely with the Department of Social Protection. It is about establishing those relationships, establishing the powers of the agency and making sure those powers work alongside the powers available to the courts, with the majority of the decisions being taken by the agency, subject to an appeal to the District Court, which is ultimately where most of these decisions are taken. I hope that is helpful to the committee.

Ms Karen Kiernan

Under the Scandinavian model, the state pays the child and parent upfront and recoups the payment from the liable relative. That is the gold standard because it ensures the child is not living in poverty and the parent who needs the money gets it. There are other systems. Senator Ruane has done a lot of work on a Bill to deal with child maintenance, including looking at the Inland Revenue model in New Zealand. One of the reasons we recommended research is that things can look good but one must speak to the end user to find out the reality. We know from speaking to people in Scotland and elsewhere in Britain that there are significant difficulties with their systems and parents in Britain have to pay to use them. Where the parent of a child is not paying for that child, the other parent has to pay to use the system to recoup payment. It is very difficult to get a perfect system and it requires a little research to get it right. Ultimately, as Dr. Shannon said, it is about taking matters as much as possible out of court and away from conflict. The focus should be on doing it for the child. That is what is really important and we have missed it in Ireland until now. I thank Deputy Smyth for her questions.

Ms Stephanie Whyte

Whatever the model, there would need to be associated supports for family relationships. Irrespective of the structure and what it looks like, we must have a situation in which parents can adequately address their own feelings and how they can manage them separately from the management of the children and in a way that ensures there is a positive focus on the children. Even when there is entrenched conflict, parents should be helped to understand the impact on their children and to ensure the children are separated from the conflict going on between their parents. Sometimes, there is a context of very aggressive behaviour by one of the partners involved even below the threshold of domestic abuse. Entrenched conflict can be very difficult and we know children feel a sense of responsibility for conflict between their parents. They feel it is their fault that mom and dad cannot agree, mom has to chase dad for money and dad does not pay mom. They blame themselves. We must have a situation in which there are supports around whatever model is used that allow people to manage their relationships and put the children at the centre. Parents need to be supported to prepare themselves for engaging in the processes in a way that ensures children are not included and embroiled in the conflict.

Deputy Niamh Smyth

How does Ms Whyte see such supports manifesting?

Ms Stephanie Whyte

In Barnardos, for example, we work with parents to help them to understand the new dynamic in which they find themselves. A phrase we often use is "unhooking emotionally" from the partner, which is a very difficult thing for some parents to do. They still try to control or influence the parenting style of the other parent even after separation. We try to work with parents to help them to understand the new situation in which they find themselves in terms of their relationship with their child, how they can engage with the child to help him or her to understand what is happening and how they can develop positive and constructive means of communication, agreement and negotiation with their ex-partner before they have to go into the formality of agreement. We provide those kinds of family support services across the country, as do our peers who are represented here today, to support parents to engage productively and constructively in addressing conflict and keeping the children out of it.

Deputy Claire Kerrane

I thank all the witnesses for attending the meeting and for their presentations. I have always been of the mind that the courts are not the place for dealing with child maintenance. It seems there is consensus on that. It is not the right environment to determine child maintenance arrangements. As we know, payments can be ordered by the judge of the day, who can choose a figure off the top of his or her head. There are no guidelines set out. Moreover, whatever figure the judge chooses is not necessarily paid. Every time, it is up to the lone parent to go back to court, a bench warrant is issued and, often, there is no prosecuting garda in attendance.

At every point, the burden comes back on lone parents. We really need to take it off their shoulders. I firmly believe a child maintenance service can only be beneficial for lone-parent families and the children of those families. The children need to be central in the process but they are not central at the moment, which is part of the problem. As other speakers have noted, there is a real need in this to deal with poverty and lift children out of poverty. There is evidence to show that when maintenance is paid, it plays a role in doing that.

We are waiting for the report of the child maintenance review group. That group was established in 2020 and it is welcome. The Minister for Social Protection, Deputy Humphreys, received its report at Easter time and she confirmed to me two weeks ago that she will bring it to the Government before the end of the year. It is highly likely, therefore, that we will not see it until next year, which would be really disappointing. I urge the committee to seek the publication of the report as soon as possible. I have no doubt good work has been done in producing it and it would be great for the stakeholders to see it. Let us have the engagement on it and move forward from there.

Whatever the outcome of the report, which I hope is to recommend that a child maintenance service be established, it will not happen overnight. Will the witnesses indicate what can be done now that will make a difference? One such action would be removing the inclusion of maintenance payments as household means for the purpose of assessing eligibility for social welfare payments and housing. Ms Bayliss has raised the issue of housing a number of times. Will she comment on the impact of child maintenance payments on rent assessments in particular? Action on that issue could be taken straight away. Such payments should not be seen as means but as income to assist in raising a child or children. That is what they are for and how they should be treated. In addition, we should remove the condition whereby parents must prove they have sought maintenance before being able to get the one-parent family or jobseeker's transitional payment. Again, that should not be the case. These are two measures that could be taken immediately and would make a difference. Is there anything else that can be done?

Looking at existing models is important. On three occasions, we have brought forward proposals based on the model that is in place in the North. It is not perfect but I am not sure we will find a perfect model. The job of work has to be to find an existing model, take the lessons from it and then build the best model we can.

There is a need for reform within the Department of Social Protection and its liable relatives unit. That unit really is only there to recoup the State's costs arising from the one-parent family payment. That is slightly disturbing because it is not what it should be about. It should always be about the child and recouping costs to assist in rearing that child.

Whatever service is established, which I hope will be done, enforcement is absolutely key.

We need strong links to Revenue. Where payment is not made, it needs to be able to be taken from welfare payments, wages or wherever other means necessary. There is no point in having a service if we do not have adequate enforcement to ensure payment is made. The problem at the moment is that in many cases it is not actually made.

In previous years we have not been able to get a figure for the cost of establishing a child maintenance service. I gather because of the work done by the review group, a figure is now there. We were given a figure for our alternative budget this year of €2.3 million. That is the initial establishment cost. Obviously, after that, not everybody will need to use the service, so I do not see the cost being anywhere near as high in future. Could anything else be done immediately while we wait for this child maintenance review group report and hopefully the establishment which, unfortunately, will take time?

Ms Louise Bayliss

Enforcement is key and that is what is lacking. The courts operate on the basis that there is compliance and if there is not, it is up to the lone parent to pursue it. There should be options which are not there at the moment. For instance, for the attachment of earnings it is necessary to know who the employer is. A way to circumvent that is to change jobs and then the lone parent is back at the end of it. We know their PPS numbers. Why can it not be an attachment to a PPS number instead of an attachment of earnings? It would mean that wherever they go whether they are self-employed or whether they are changing jobs, the lone parent does not need to find out who the employer is or where have they gone if they change. Even having to know the address for the summons is a real barrier.

I welcome that the Deputy has mentioned housing, which is a major issue for many lone parents, especially in the case of domestic abuse. Lone parents may get a court order requiring the mortgage or the rent to be paid, which is a very progressive thing. However, unfortunately the Department of Social protection will not see that as the mortgage payment; it sees it as a cash payment into the hands of people. There is hypocrisy that the State would support a lone parent through rent supplement to leave the family home but will then assess the mortgage payment and bar her from taking social welfare payments to maintain herself and her children.

A housing disregard was introduced in 1997 to help parents in that situation. That was introduced at £75 in 1997. That payment is now €95.23. It is not reflective of the current housing market and is driving lone parents in domestic abuse situations from the family home and into a private rental market which costs the State more money. Somebody might be entitled to a HAP of €2,000 and yet where there is a court order ordering the mortgage of €600 or €700 to be paid, the Department is coming in and assessing it. That is something that could be done overnight and would make an enormous difference to lone parents struggling at the moment.

Ms Karen Kiernan

The review group is looking at what the Department of Social Protection can actually do. Hopefully, it will have very good recommendations relating to the assessment of means. It will also look at whether an agency is needed at all. We are aware that maintenance is assessed as means for HAP, the medical card, the childcare scheme and sometimes assessed multiple times meaning that people can actually end up with less money. That needs to be resolved. It should become a non-means tested payment. It should be included. We are waiting on the family justice strategy and the family law courts Bill to be published. We need to see this as supporting that work. I am aware of judges going into courts with calculators. Somebody could work on an assessment framework for what is appropriate to meet the child's need. As Ms Whyte said, family supports help people make decisions outside the court system, which is cheaper and quicker. Those things can be resourced. We have specialist services in this area. These things can easily be done very quickly.

Senator Lynn Ruane

I thank all the witnesses for their presentations. The discussion has already moved on to what needs to be in place instead of just looking to enforce the orders. I have spent probably about four years drafting legislation because it is such a difficult area. A good chunk of that time was spent building the assessment calculation tool and, obviously, maths is not my forte. It took us a long time to build what goes into that. What if maintenance is paid to other families? There are many inputs in terms of the liable parent and the assessment of percentage of their income, outgoings, other liable children and stuff like that.

It is based on the New Zealand model with additions. The Women's Caucus has agreed to take that on as its first piece of legislative work as a cross-party group which I hope will give it strength. It is just getting it to the final stages. We have it built into the Revenue and the Revenue already has all the powers the system may need, including powers to deduct. We have also looked at elements of the Personal Injuries Assessment Board, PIAB, model. The bits we are finishing now relate to GDPR and using people's data if they refuse to engage. How does it stand with GDPR in terms of default assessments and using someone's data? Obviously, Revenue has all the information we need from PPS numbers to income.

We have looked at people's assets. It has been a thorough piece of work which has taken a long time. I hope it gets support. I am also conscious of wanting to have guaranteed payment which the New Zealand model does not give. I have drafted the legislation so that it is a building block and is open to add on subsequent sections. If we eventually get to the stage where the State is willing to do guaranteed payment and then recoup, this legislation is built in a way that it can be added into the system even if it is not there initially. If this legislation goes forward, I am concerned that it still might not be enough. When we drive something, we always wonder what will happen if it does not achieve what we need it to achieve.

If we follow that New Zealand model within the Revenue it will not be a stand-alone agency, but I do not think it needs to be. We could be waiting another ten or 20 years if we keep going after the standalone agency piece. However, it would then be open to add that building block in terms of guaranteed payment later. It encompasses all extra costs, including disability. It is quite complex hence it has taken me so long to get there but it is nearly done. I would like the witnesses to outline any concerns they might have about the model I am pursuing and any concerns that it will not achieve what we are discussing today under that model with the Revenue.

Ms Karen Kiernan

It was really interesting to work with the Senator on that and to learn a bit more about it. We came to the point at some stage of not being able to tell how it would be implemented in practice. That is why our research recommends talking to the end users as well. There is not really an equivalent organisation in New Zealand? It is not the same because its society is much more progressive on social welfare and it has a different culture.

Part of the issue here is that it has been privatised and farmed out to people because the State has not wanted to interfere in people's lives. Actually, there is a policy issue here around child poverty and conflict because our services are so poor. It is very difficult to predict the unforeseen consequences. A stepped approach seems very sensible. It would need to be an inbuilt process to see what the unintended impacts are.

Senator Lynn Ruane

There is a social welfare aspect to it as well in terms of what Deputy Kerrane said about not means testing stuff. There is the whole social welfare model built into the legislation too.

Ms Karen Kiernan

That would be a radical difference here. Here the current model of State support for lone parents has an element of judgment ingrained in it, particularly relating to inspections and cohabitation. It is not just about what the family and child need. It is also trying to turn it around philosophically.

Ms Stephanie Whyte

There should be a support system in place in addition to that structure. The children and lone parents we are working with are very isolated.

It is a matter of being able to engage in these kinds of structures if there is a history of addiction, if the parents are in recovery or if one parent's former partner was an addict with him or her at a certain time. Many of the parents we work with have taken the decision consciously to move away from that so they are very isolated and very alone. Then their children tell us they worry about their mam or their dad, so the children own the emotional mood in the house and the worry and the difficulties. It is a matter of engaging in some form of structure in this regard. Whatever the model being described, there has to be a support system people can access to prepare them for it in order to be able to share their worries, concerns and fears, to manage their anxieties about that and to prepare well. In that way, their children can be just left as children and know that mam is getting support somewhere else and do not have to be embroiled in the process.

Senator Lynn Ruane

Unfortunately, that might be work that is additional to legislation. There is the other part of this, but the advocacy part needs to be there. I do not think it could be put into the work in respect of Revenue.

Chairman

Dr. Shannon was going to come in. We are out of time but I will take another contribution.

Dr. Geoffrey Shannon

The Senator's approach is to be commended. I think an incremental approach is the correct one. There are challenges, one of which is that maintenance is a private law obligation. That is unique to Ireland. We have a unique maintenance system. What we are talking about this afternoon is when parents are not in a position to support their children when they interact with the social welfare system, so we are looking at a point in time. There are a number of models. What the Senator suggests is, I think, the correct approach. Incremental reform, I have always argued, is the best type of reform because reform has to be culturally appropriate. We should not lose sight of that. There are probably four models that could be followed. Maintenance is guaranteed by the state in, for example, Australia, Sweden, Estonia, Italy, Germany and Hungary. It is guaranteed by specific bodies indirectly governed by the state in France, Slovakia and Belgium. It is governed by local authorities in the Czech Republic, Denmark and Finland. It is guaranteed by special funds in Latvia, Lithuania, Poland and Portugal. It is guaranteed by special agencies in the UK and the Netherlands. Whatever approach we take, we should not lose sight of the fact that children within the Irish system are generally invisible. We are just ten years short of having passed the children's rights referendum. It is a real tragedy that we treat children as what I would call bystanders, whereas they are deeply affected by the parents' inability to pay maintenance. We need, therefore, to redouble our efforts to ensure there is a minimum. Whatever the minimum payment is, it should be left as a minimum payment, and any deduction because of a maintenance payment that might be defaulted on should not occur if we are really serious about avoiding child poverty.

Chairman

The point about the civil law aspect of this is interesting.

Deputy Thomas Pringle

Most of my questions have probably already been asked and answered. The most interesting thing has been what Ms Kiernan said about there being a philosophical argument. That is the problem with the whole system. The Department of Social Protection is definitely in a different place philosophically from anybody who deals with children. The Department does not, I believe, have the best interests of children at heart in that it is more about looking after the money and cutting back on the money being spent. Is there anything any of the witnesses can see that can get beyond that? I think that is what we have to do to actually get somewhere in this regard.

Further, do the witnesses see the removal of the option of non-payment of means as a way of stopping access to children? Maybe that should be worked in a different way. It should be important. I think men use it as a way of controlling what happens. I think that needs to be looked at differently and separately for the benefit of children.

Do the witnesses wish to take a first step on the philosophical point?

Chairman

I will mix it up a little. Ms Smith, I do not think you have been in a lot so far so we will hear from you.

Ms Gayle Smith

On Deputy Pringle's point, child maintenance needs to be decoupled completely from any social welfare benefit in order that there is no confusion as to what a child is entitled to to lift him or her out of poverty. At the moment, when maintenance is not being paid and it has already been deducted from social welfare payments, many families are living below a social welfare income anyway. If we are really serious about reducing child poverty in this country, we need to put children, rather than the adults who take care of them, at the centre of this.

Ms Louise Bayliss

Getting back to Deputy Pringle's question about the philosophy of this, one of the things I find repugnant is that the liable relatives unit can issue a determination order stating that a parent needs to pay Ms X whatever amount of money it is, but that letter also gives the parent the option to pay the Department €60, to use a round figure as an example, and that comes completely out of the contribution the State makes to social welfare, so the child and the parent get no benefit. Otherwise, the order states, "You can pay the parent and we will take half of it." Why on earth do we give parents the option to penalise their children? Why are we giving parents that patriarchal approach that a man or a woman - whoever the liable relative is - can decide? Why are we giving them the option to decide they do not want their children to see the benefit? The parents themselves are not benefiting from that - they still have to pay the determination order - but we are letting them say to the Department, "You can take all the money and make sure my child does not see it." That is repugnant and it says something about how we treat children. It should be very easy to change the legislation. In a modern society it is outrageous that we give parents the option not to pay.

Chairman

Ms Whyte, were you nodding? Did you want to come in? Ms Kiernan, did you want to come in?

Ms Karen Kiernan

Yes, I do.

Chairman

Sorry. I was trying to read the faces to see who is indicating and who is not. If anyone else wishes to come in at any stage, I ask them to get my attention because I want to go around the room.

Ms Karen Kiernan

I am aware I am putting my hand up a lot.

I think there are a couple of opportunities to try to challenge the philosophy at the moment. One is the new iteration, as I mentioned, of Better Outcomes Brighter Futures that is being worked on. I have sat on the advisory council for that for the past six or seven years and the council has been very clear that our main focus is child poverty and that we would like a national child poverty action plan to be developed that is cross-departmental. There are other countries, such as New Zealand and Scotland, that do that very well and have it based in legislation. Every Department centres the needs of children so this does not become a value judgment about the parents. Research tells us that people make judgments about different kinds of parents for different reasons. We need to circumvent that at a State level.

There is another opportunity. Cosc defines the non-payment of child maintenance as financial abuse, but that is not reflected anywhere in legislation, services from the Department of Social Protection or anywhere else. There is therefore an opportunity for some leadership on that language and to show to parents who do not pay maintenance that it is financial abuse not only of their former partner but also of their child.

Chairman

That is time, but if anyone else wishes to make a point on this, I will allow them to do so.

The next Deputy to have indicated was Deputy Carroll MacNeill.

Deputy Jennifer Carroll MacNeill

I am really interested in the piece between public law and private law. I hear clearly what was said about a public model that does not depend on maintenance being paid. We have discussed before the difficulty with enforcement. The witnesses' baseline is that they would like an ideal scenario in which money is transferred by whatever means. I accept what has been said about the philosophical point, which I had not really thought about until it was phrased in that way. It is interesting because we talk about child poverty but we fail sometimes to connect the language of failing to pay maintenance. I think more people would connect with that language if it were more broadly situated.

Dr. Shannon and Ms Bayliss might respond to the following. Let us say a parent wants to pay maintenance and is reliably paid. That is not the baseline. We have a public model which is the baseline, and maintenance can be paid on top of that.

However, our concern is situations where it is not paid and how we can attach that. What was said about the PPS number is very important. It is important that the liable parent, as it were, pays and it is not just the State. It should not become an acceptable State idea that people can leave their child – or whatever scenario has happened before – and have no financial obligation to care for their child in some way. I do not want to decouple it so much that maintenance ceases to be relevant to it. There are many different ways of considering that, whether that is paid from a court order that is simply then paid to or attached to Revenue and feeds into the Exchequer fund generally and goes to support a different model.

I am interested in what Dr. Shannon said about how far an agency can go. I do not know if he elaborated on that following the Supreme Court and how far an agency can go beyond a court being involved. The biggest difficulty seems to be with access to court and actual enforcement of the different models. We have talked much about maintenance, but enforcement of access is an issue I see again and again in different ways. With an access issue, one should not have to go back to court each time. It makes the issue much bigger than it needs to be when one is trying to have a harmonious life for a child. Can he elaborate on some of those points please?

I want to ask about section 47 and I will do it in the second round.

Dr. Geoffrey Shannon

It is a very important question and a fundamental one, as my director general said. I comment as a solicitor as well as an academic. I sort of sail both worlds. I have a practice perspective as well as an academic perspective on this. As our director general said, resource is a key issue. No matter what way we look at this, the system needs to be adequately resourced. There is a real challenge in not overstepping the parameters. There is being ambitious on the one hand and there is making sure we calibrate the balance in the correct manner on the other. How do we do this? We can be much more creative in the sanctions that we introduce for failure to pay maintenance. I absolutely agree with all of the members of the panel that the failure to pay maintenance is a red flag in terms of child protection. If people are not maintaining their child, it raises fundamental questions. What I would suggest to the committee in addressing that problem is that we would look at broader sanctions that could be attached to a miscellaneous provisions Bill, for example, at the end of any given year, such as garnishee orders, fines and imprisonment.

Imprisonment is not the right approach in respect of sanctions. We have used that for access and traditionally for maintenance. However, there could be a power to pursue somebody who failed to pay maintenance retrospectively. That is curtailed at the moment to a very short number of months. However, we could remove that and target the defaulting parent’s assets. Do not look at it in terms of a criminal sanction. In addition to that, I would suggest a fund could be created. One way to bridge that gap between the public and the private system is to create a State fund.

Deputy Jennifer Carroll MacNeill

Like the fund the Motor Insurers Bureau of Ireland, MIBI, has but for maintenance.

Dr. Geoffrey Shannon

Yes, for maintenance.

Deputy Jennifer Carroll MacNeill

There is something there. However, the difficulty, of course, in creating more and more sanctions is that it uses more and more court time, whereas one could remedy that at the outset. Let us say that a court makes an order that a person will pay €200 a week for the next ten years or whatever happens or until I say differently, Revenue is then notified and it is just managed in that way so we do not have to continue to go back to judges all the time. Is there a way to create a power in statute for somebody in that agency to be the enforcer of that or be that co-ordinator with Revenue?

Dr. Geoffrey Shannon

That is what I was suggesting earlier, that as much power is invested in the child maintenance agency as possible and extend that to its limits. That is the real potential.

Deputy Jennifer Carroll MacNeill

Where is the limit of that?

Dr. Geoffrey Shannon

The limit of that would be a sanction that would involve depriving somebody of their liberty. I think I can assist the committee by referring to what happened when the Child Maintenance Service was established in the UK in 2012. It runs into huge problems with enforcement. The best way to deal with this is alternative dispute resolution. The Government should try to have an elaborate system for engaging with parents at an early stage and create that in a more sophisticated manner than currently exists. There is huge potential in that. If we look at some of the other international models where that has occurred, it has occurred with a degree of success. That is the real potential. However, let us not pretend that there is a magic bullet; there is no magic bullet here. The Government needs to look at the powers it can grant to the agency and support the agency in terms of resources but also in terms of alternative dispute resolution and try to get as much agreement as it possibly can. That can be achieved. The family court Bill envisages this scheme as being the new order. Why not have that reflected in a maintenance context? That is what I would commend to the committee.

Chairman

We will take a few more responses now as people have their hands up.

Ms Stephanie Whyte

I just wish to add another point and it is at risk of being slightly outside the formality of the court, as was said. Over the years I can think of several scenarios where we have had some success with fathers – forgive me for saying fathers – when we have framed things in a different way, that is, separating and unhooking it from the other partner. What I mean is that when one says non-payment of maintenance or other issues, certainly framing them as financial abuse, but also framing them as a parenting choice and facilitating them in a process of seeing their actions in the context of their father-child or parent-child relationship. While obviously it is not a magic bullet, as Dr. Shannon said, sometimes creating spaces for that reflection and having services that focus on that kind of therapeutic end and point out the impact on the child works.

Let us focus back on the child and not the ex-partner and what she did or did not do. Let us focus on the parent’s current choices and actions and frame them as a parenting choice. We have seen some movement. It is in the children’s best interest to have a meaningful relationship with both parents most of the time. That is the scenario. The goal is for that relationship to be meaningful and for parents to see their actions as parenting choices. What can we do now? We can invest more in services that do that kind of work and create opportunities for those kinds of discussions to happen so as to exhaust the opportunities for therapeutic improvement in how people understand their actions. If that does not work, then obviously more stringent recourse, as Dr. Shannon said.

Senator Lynn Ruane

I do not think people should have to wait for that piece of work to be done before they are receiving maintenance.

Ms Stephanie Whyte

No. I apologise, as I do not mean that.

Senator Lynn Ruane

All that work is very important, but no family should be waiting for this-----

Ms Stephanie Whyte

Absolutely. I totally agree.

Senator Lynn Ruane

-----realisation of enlightenment to happen.

Ms Karen Kiernan

That need not take a long time though.

Senator Lynn Ruane

Just checking.

Ms Karen Kiernan

That need not take a long time. It can happen quite quickly.

Chairman

We are achieving more light than heat today, which is good. We are making progress and coming up with breakthroughs that we can report at the end.

Deputy Costello has not come in. If he wants to, there is an option to now.

Deputy Patrick Costello

Like Deputy Pringle, much of what I wanted to say has already been said. Just to explore something that Dr. Shannon said, the Child Maintenance Agency in the UK had many problems with enforcement. Has it overcome them? If it did, how did it do it?

Dr. Geoffrey Shannon

It came to the realisation that the best way of achieving this was along the lines of what has been suggested in terms of therapeutic intervention at an early stage and engaging with parents. Short of that, there is no quick-fix solution. The child maintenance agency is a step forward. I will completely connect with a point articulated by Senator Ruane that maintenance is in the here and now, particularly for lone parents. The Law Society can elaborate on how that might be achieved. We could provide a supplemental submission on this idea of creating a fund. We need to be creative in our thinking. That point around what happens to those who are at the margins resonated with me.

The cases we are talking about this afternoon are those parents – and children affected by the decisions of parents – who access our District Court, which is a very local court, on a daily basis. How do we help them out? The child maintenance agency would be a game-changer, but it needs to supplemented by other systems, as the point raised by Deputy Carroll MacNeill.

The other systems would be that idea of the maintenance fund and then additional sanctions. What we need to do is provide for all contingencies, and the additional sanctions would be sanctions that do not involve criminalising a parent. Sending a parent to prison is counterproductive. It is about how we provide more effective provisions.

I will finish with a case in point. We have not talked a lot of about access and the breach of access orders, which is a very serious problem. In the Children and Family Relationships Act 2015, there were new and innovative sanctions for dealing with those who refused to facilitate access. Anecdotally, it would appear that those sanctions are not being utilised so we need to use the legislation that we have currently in place. The society is currently undertaking research across all of the District Court areas to look at how that Act is operating, and we are quite happy to feed that research into the committee. What we are hearing anecdotally is that the provisions that were created to ensure access is not breached are not being used to the maximum, and that needs to happen. I hope that has been helpful.

Deputy Jennifer Carroll MacNeill

Are solicitors looking for that?

Dr. Geoffrey Shannon

My view is that there is an education issue, not just for solicitors but across the Judiciary as well. In a very recent decision of the High Court, the judge highlighted the fact that these provisions exist. I think that is a call to action that we should use these. The provision that has historically been used is the consent provision but there are other sanctions available, such as a cost sanction or requiring parents to go on parenting courses. Again, on the point made earlier, it is about bringing home the reality of refusing to facilitate access, which can be quite powerful. With regard to compensatory access, if someone refuses to facilitate access, they are penalised for that refusal by being deprived of access. These are new and creative ways of dealing with problems that are largely historic.

Chairman

Senator Flynn has joined us. Would she like to put some questions to the witnesses?

Senator Eileen Flynn

Not at the moment, thank you.

Chairman

We can come back to the Senator in due course if she wishes to come in. I will start a second round of questions shortly. Before that, I understand Ms Kiernan wants to come back in.

Ms Karen Kiernan

I want to comment on the question about access. This is a significant topic. There are people who do not take up access and there are parents who do not facilitate it. We are aware, through our services and through working with mums and dads and separated families, that there are often high levels of fear and concern about the child. This is exacerbated through conflicts in the family courts and the inability of courts to have accurate information in the form of assessments in a timely, affordable or accessible way. That is a whole other issue.

It is very complicated. We know there is a huge gap in practice and understanding of where child protection systems interact with private family law cases and criminal cases, and there can be all three going on in one family and affecting a child, and there is no satisfactory system or any system to bring those together. That is a major issue that we are hoping will be addressed in the family justice strategy, or at least pointed to in that strategy. The courts do not have all of the information they need because people are either representing themselves or they might be privately represented, and there can be inherent power imbalances, with people walking in while in coercive control situations. There are many reasons why access may not or should not happen. We also know of children being into unsafe or inappropriate contact by means of court orders because, for whatever reason, the courts may not have all of the information available to them. There are massive problems.

Ms Louise Bayliss

I would like to add a few thoughts about access and sanctions. I do not think sanctions are working. There needs to be better enforcement than having to go in and out of court. I say that as somebody who has been in and out of court, and it is draining, destroying and really upsetting emotionally. The idea of attaching it to a PPS number and going through Revenue is a simple solution. If we look at the property tax, for instance, Revenue has the right to go directly to your employers, they have your PPS number and they will take whatever is owed. If we can do that for a property tax, why can we not do it with child benefit or for the rights of a child? Children have more need than property does. That is an important point to make.

With regard to access, no woman wants to deprive her child of access in a safe environment, although that is not to say it does not happen; it does. From years of talking to women in SPARK who are going through this, if someone is in a powerless situation and they feel powerless going in and out of the courts, their only weapon - it should not be a weapon but that is what happens in an adversarial court system - is to withdraw access if he has not paid maintenance. It is unfair and it is wrong on the children, but it does happen. If we guarantee the payment to a child through Revenue, then we take all of that out and there is no reason for a woman to deny access.

All of the international research has shown that when a parent pays maintenance, they will keep in contact with the child. Again, the Deputy said she does not think it should be totally decoupled. The proof is that when they pay maintenance, they will see the child. I am not advocating one way or the other for a statutory maintenance agency or for Revenue, but something needs to happen urgently because children are suffering in the meantime, and they are suffering because of access issues and poverty. If we sort out the revenue coming into the family, a lot of the access issues will be sorted.

Chairman

Thank you. I will move on to the second round of questions. I call Deputy Pringle.

Deputy Thomas Pringle

This might not be relevant but it occurred to me just now. What about children deciding whether they should have access or not? Should that be provided for as well? Somebody could be paying maintenance but the child does not want to see them. Should that be allowed as well?

Dr. Geoffrey Shannon

That is an excellent question. We introduced in the Children and Family Relationships Act 2015 a provision allowing for children to be more prominently heard through a child expert. This November, we are ten years on from the children's rights referendum where we talked about hearing children. The people most affected by the refusal to facilitate access are actually children. It is absolutely important that we ensure children are heard in these decisions because they are the people who ultimately will be affected.

There are problems within the system at the moment with regard to ensuring that happens. We need the resourcing of reports if children are to be heard indirectly, but they are not adequately resourced. The second point is that we still have not succeeded in that project of hearing children in all cases. With regard to a new family court - we were just talking about this outside - two generations of children have grown up since we first started talking about this issue, yet children are not properly heard in these cases. This is a fundamental issue. In maintenance and access applications, it is of paramount importance that children are heard either directly or indirectly. We have a long way to go to ensure that objective is realised.

Mr. Damien Peelo

The Deputy has touched on another very complex issue. It is like peeling an onion, with all of the layers that have to be addressed in these scenarios. Dr. Shannon is absolutely right that the voice of the child and the best interest of the child is paramount in what we are talking about, but the systems in place to try to hear that are very under-resourced. Again, it goes back to resources. Definitely, a child's voice needs to be heard and their reasoning needs to be heard.

What we are interested in is not just that this is provided for by expertise, which is needed in these complex cases, but also that parents are given tacit support to be able to recognise what is in the best interests of the child. We would have heard that from both parents in an adversarial role, with both thinking they are doing the same thing although it is complete opposite, and both claiming it is in the best interests of the child. It is a question of how we get to learn and how we start to ask the questions of parents so they are placing the child at the centre of their decision-making.

A child might say for all sorts of reasons that he or she does not want to spend time with the other parent. That might be for absolutely legitimate reasons but once the matter is teased out, it might be found that a whole set of things could be overcome very quickly in trying to address that. It is complex, it needs to be resourced and time and effort need to be put into hearing that voice of the child and placing his or her best interests at the centre of any decisions.

Ms Stephanie Whyte

I echo that in the sense that it is very important that children's views are elicited in whatever format, depending on their age. Children repeatedly tell us that for the most part they want to have a meaningful relationship with both parents. Where it gets complicated is when there is not a sufficient support system around that to delve into the complexity of relationships. These are very complex, hurtful scenarios that children are dealing with all the time and there seems to be no scope to cope with that nuance and complexity. It is not static; it is dynamic. Children's feelings change and evolve, depending on the circumstances.

Children tell us over and over again, particularly if they have observed bad behaviour by one of their parents, that when they have been bold they get into trouble, of if they have done something bad they have to acknowledge it, say that they did it and say they are sorry. When it comes to access, children sometimes say they would not mind having a relationship with their parent but it is contingent on that parent saying to the child that the parent is sorry that something happened, that the child did not imagine it, the parent did it, should not have done it and is sorry. They can then move forward in their relationship. There is, however, no support structure for those kind of conversations to be facilitated and teased out in a safe way that allows children to say these kinds of things to whichever parent it is and also for the parent to hear it, to be supported to hear it and genuinely allowed to be facilitated on a therapeutic journey, if he or she is willing and able to engage in that.

It is very complex. There are many soft supports around courts and reform of the family law courts that are needed, if we are to safeguard children's right to have a meaningful relationship with both their parents.

Deputy Jennifer Carroll MacNeill

The point made about linking maintenance with seeing the child is so important, insightful and helpful. I cannot believe it is ten years since the children's referendum. I had forgotten. Attempts were made to give much of that referendum effect through the Children and Family Relationships Act 2015. What I hear from constituents, and my first contribution in the Dáil was about section 47 assessments, is how these assessments can be used and abused, the calibre of them and how people conducting assessments have to be trained in recognising coercive control. I made the point in 2020 that it was not necessarily apparent that children participating in assessments were giving a clear view, when a report could come out that said something very different. I do not know whether the section 47 situation has improved over time. I see the representatives indicating that it has not. That is a universal "No". I will hand that issue over to Ms Kiernan.

Ms Karen Kiernan

The issue of assessments to court is key. Currently, we have voice-of-the-child reports that are done by child view experts for which there is a level of regulation and control. There are difficulties with that. There is no regulation whatsoever of section 47 child welfare reports. There is nowhere for parents to go. We have had parents report to us very serious concerns about their assessors and there is nothing they can do. There is no professional body they can go to. There is an interesting case in the UK at present on this and the qualifications of someone doing these reports. There is a significant requirement on the State to regulate, at a minimum, people who can do them but ultimately, to pick up on what we said and what Barnardos staff are saying, a lot can be done outside of court for a much lower cost. That is what we do, day in, day out, in One Family. We can have people come to realisations and agreements and they do not have to go down the court route, or they get ratified in court.

Trinity College Dublin and University College Cork, UCC, are doing research for us at present on access for infants in separated families. They are saying that their voices need to be heard. We are not hearing the voices of children who are much older than that. There is no system. If someone cannot afford to pay, it is not happening. We are not vindicating children's rights under the Constitution at present and that is very problematic. Ultimately, each family and each child are different. We need somebody skilled who is able to look at that situation and listen to everybody. Children cannot hold the responsibility of picking whether they get to see a parent or not. They can be consulted but they cannot make that decision unless they are much older. There has to be a system around to do that. We proposed a model in our submission to the family justice oversight group around a family law services model, which would complement what will be done in the courts. It will not be as successful as it should be unless these things are done.

Assessments and the quality and timeliness of information that goes into court are key. I definitely sense a reluctance on the part of the State to regulate, fund or support any kind of reporting on families. Yet, that is what is ultimately needed for the success and closure of cases, which means happier families and less trauma. Our systems are causing adverse childhood experiences. The separation may not do so but the trauma and process families have to go through are causing adverse childhood experiences, which people like us and Tusla need to look at and count to see how traumatised a child is. The State is complicit in creating these situations, unfortunately. There is so much that can be done. If child maintenance could be removed from the family law arena, there would be more resources to do that bit of it properly. Only what has to go to court should do so. Some 80% or 90% of this should be done outside of court. That is across all family law issues, not just maintenance but access, custody, guardianship, etc.

Dr. Geoffrey Shannon

The Deputy raised a very important point. If we look at the system at present, the section 47 report relates to section 47 of the Family Law Act 1995. We have an unregulated system in private family law cases. These are cases that involve divorce and judicial separation, which are high stakes cases, where, in fact, an entire marriage is being reordered, including the assets of the marriage. In stand-alone applications, which are governed by section 32 of the Children and Family Relationships Act 2015, we have a regulated system with a child view expert. We have failed to regulate, and we heard Ms Kiernan outline the consequences of that, the procurement of these reports in private family law cases. There is a failure to provide sufficient regulations.

Certainly, the Law Society's family law committee has been calling for some time for robust regulation because the reports provided to the Family Law Circuit Court are reports that will ultimately decide who is granted custody or access. An issue that needs to be dealt with as a matter of priority is that while we have regulation for discrete custody and access applications, we do not have it where it is dealt with as part of a private family law matter. The time is now to ensure that those regulations are introduced and that citizens are protected. The absence of regulation could ultimately have very devastating consequences unless we move immediately to fill that lacuna.

Deputy Jennifer Carroll MacNeill

To clarify, did Ms Kiernan say that information sharing involves the triangle of childcare, criminal law and family law?

Ms Karen Kiernan

Yes.

Senator Lynn Ruane

I have so many questions that I will not get them all into three minutes. I might hit up all the representatives over the next few weeks to follow up on it all. I will stay away from some of the questions I had on looking at the percentage of care as well as the percentage of cost and income. A parent with access may be providing a lot of care for three to four days a week, or a family member is, yet that parent is still the one liable. I might come back separately on that for advices on the legislation.

I have an interest in marginalised groups and while they have come up a lot, women and families in such groups are definitely not, in any shape or form, the only ones being impacted by this. That is why Revenue is a good place for it. I have a concern, however, about the children of men in prison, especially children from vulnerable or marginalised communities, for whom the conversation has not really been a starter. There are men are in prison for anywhere between six months to 20 years who have children in homes that will never gain recompense from the State and will not come under the Department of Social Protection. How do we deal with those vulnerable families that will never be able to access maintenance? There is also the issue of young families where the parents have died but were not married.

I have friends whose fathers have taken their own lives but they were not married and so the widow's pension cannot be accessed. Does anybody have any solutions for these two extremely vulnerable groups, which include children, in terms of access to adequate care that will have to be driven by the State, not the other parent?

Ms Louise Bayliss

I do. The issue is that there should be a minimum essential standard of living for every child. Where the income cannot be recouped from another parent, there should be an increase in the qualified child rate. If people are getting maintenance at a proper level from parents who are there and are able to help, it should be a case of each child having a minimum essential standard of living. The Vincentian Partnership for Social Justice, through the Society of St. Vincent de Paul, does great work on this. We know exactly how much a child-----

Senator Lynn Ruane

On the side of the welfare system as well.

Ms Louise Bayliss

Yes, we know exactly. We must know that the State will step in if there is no reliable relative and will bridge the gap. That would be very easy to do. As the Senator said, the group is marginalised. There are not many involved, so we could easily identify them and make sure each child is entitled to a right as his or her human right. If the child's father or other parent is not present to provide, the State should step in and bridge the gap between social welfare-----

Senator Lynn Ruane

Do you think a constitutional change to the definition of a family could affect the likes of the pension payment and the widow's pension-----

Ms Louise Bayliss

Absolutely, that is so crucial.

Senator Lynn Ruane

-----but also a category of a prisoner's pension in terms of when the State has to step in? If operating through the welfare system alone, you might not pick up many women who are not on the radar, who may be out working but in low-income jobs.

Ms Louise Bayliss

Absolutely, it is a question of constitutional recognition and recognition from the child's point of view. We are all in agreement here that the child has the right to two parents and that if one parent is not available, for whatever reason, be it death, prison or otherwise, the State should step in and ensure that he or she has an essential standard of living and that if there is a parent, that parent should step in.

Senator Eileen Flynn

When talking about children's access to parents, the delegates put the child at the heart of the conversation, and rightly so, but my question is about married people from mixed communities. I have been speaking to a woman whose partner has reported her three times to Tusla. She is from the Traveller community. She feels absolutely powerless because her husband is a member of the settled community. Are there any measures in place – special measures, if you want – for people from ethnic minorities, especially when it comes to Travellers in the court system? We have systems in place but even I, as a Senator, would not know the run of them. I might know people in the family courts whom I could contact and who could offer support in providing general information. There is an awful lot of fear over access, especially among women in my community and Roma women. It is important that we have these conversations. Although Senator Ruane was talking about vulnerable groups, what happens does not happen among them alone; it can happen to millionaires. Again, it is a matter of the child. Have the delegates any answers on the provision of support to people from the Traveller community? Cultural barriers can also shape a child. Separation does not happen in our community. Even if the mother of a child were abusive, the child would have to stay with her. In some cases, but not all cases, it would not be regarded as the man's role to look after the child. I just popped into the meeting to find out the position on this. I am interested in hearing people's opinions.

Mr. Damien Peelo

Senator Flynn raised an important question that is often overlooked. It concerns the intersectionality of racism, including institutionalised racism, and how a member of a minority group is doubly impacted and can be affected in many ways we have not thought about. In the five years in which I have been with Treoir, I encountered three unfortunate cases in which members of the Traveller community were prevented from seeing their children after the breaking up of a relationship with a person from the majority population. In these cases, the courts upheld that the Travellers' way of living was such that it was not appropriate for a child to visit them. That is not based on evidence, and it is not even based on a section 47 report; it is based on somebody's perception of what it is to be a Traveller and what living in a halting site or Traveller-specific scheme would entail. This has caused hurt. We can talk about access laws, maintenance and other issues but at the root of what I have described is institutionalised discrimination and racism. Therefore, alongside all the work we are talking about, we require anti-racism work and training for the Judiciary, workers and all of us in the field so we will gain a deeper understanding of the impact on minority groups. We talk about the voice of children but the voice of minorities needs to be elevated and heard so we can address the issues of concern. It often gets overlooked and does not get brought up in debates. I thank the Senator for raising it.

Chairman

I thank Mr. Peelo. The committee has considered these points. In considering the judicial appointments Bill, for example, we have made recommendations on the diversity of the Bench and so forth. This goes some way, but not all the way, towards a greater understanding of the various ethnic minorities and diversity across the board.

Ms Stephanie Whyte

In addition to that, we must gain an increased understanding of the impact and dynamics of coercive control, what it looks like and how it plays out in family courts and circumstances of parental separation. It can be very difficult to spot it and understand it. Sometimes an abusive, controlling parent can influence what a child says, how the other parent is perceived and how the child presents himself or herself in court. We made a point earlier that the entire court system is alien, formal, intimidating, scary and confusing. If you add in a layer of coercive control, vulnerable groups' feelings of fear and lack of self-esteem play out and the children's right to access to both parents gets lost. It is really important to add that.

Senator Eileen Flynn

To be clear, I am aware of some of the recommendations to date but I was seeking an opportunity to raise the matter.

Chairman

Absolutely. I am glad the Senator raised it. I was acknowledging that the committee was working towards the goal mentioned. It is important that the Senator raised the matter.

Dr. Geoffrey Shannon

Senator Flynn's point is an excellent one. There is an opportunity for the committee in the context of the imminent arrival of the family court Bill to ensure diversity is front and centre. What the Senator articulated completely resonated with me because I have been involved in several State reviews in which these issues have arisen. It is really powerful to hear them articulated in the manner in which they were articulated by the Senator. We must make sure the issues are very visible in the family court Bill. The Law Society will be agitating for this because its view is that while we need a diverse Judiciary, we also need a court system that is responsive to diversity and inclusion.

Chairman

I thank Mr. Shannon. I am going to put a question or two myself because we have been around the table a couple of times and most members have had their say. I wish to raise a point alluded to in the opening statements and featured throughout the discussion. With regard to diversity and the need for the courts to be responsive, do many of these issues arise owing to slow progression through the court system? A matter may be listed but not taken or adjourned because of the prospect of talks or progress. Developments are always on the never-never or always in the ether but never seem to happen very often. Progress can take months, if not years, and all the while those concerned are on the receiving end waiting for an order or award to be made while trying to make ends meet. I would imagine this is a huge issue. Do the answers entail more efficient progression through the system and less tolerance of no-shows or adjournments on a whim?

Ms Louise Bayliss

That is a relevant point. We have not discussed the fact that the non-enforcement of court orders facilitates post-separation abuse. In a case of domestic abuse, the only area remaining where someone can exercise coercive control is around access and maintenance. That is used post separation. The courts are really at the mercy of people's behaviour because they assume compliance and if there is none, it is up to the other person to repeatedly go back to the court. What the Chairman said about adjournment is true to a point. It is even more dangerous than that, in one sense. As was mentioned earlier, if a person does not turn up for a court appointment, which often happens, the judge will sometimes lose patience, allow no more adjournments and issue a bench warrant. There is no prosecuting garda in family law cases. The bench warrant goes out to the local Garda station and sits in a tray waiting to be executed and because there is no prosecuting garda, it is unlikely to be executed unless a parent can go directly to a superintendent and get it enforced. All proceedings are halted. The court's arms are tied until that bench warrant is executed. That is an horrendous and ongoing situation. Our research revealed that 36% of parents are owed a significant amount of arrears and have stopped seeking it either voluntarily, because of the ongoing and draining nature of the process to which the Chairman referred, or because a bench warrant is sitting in a Garda station waiting to be executed. That ends the situation.

Chairman

I noted that in her opening statement, Ms Bayliss made reference to the lack of a prosecuting garda. I was not aware that was the case. As is the case for other bench warrants, I imagined there would be a prosecutor attached. That might be a recommendation from this hearing. There will be many recommendations but that may be one.

Ms Karen Kiernan

I sit on the board of the Courts Service and I am aware it is very committed to family law reform and the development of state-of-the-art services in family law courts. That is good. There are significant delays and challenges. If the family court Bill delivers what has been signalled it will, specialist judges will be enrolled and they will be supported. That should mean fewer delays. We in One Family are aware from our work of cases where reports done for children have gone out of date because it has taken so long to get assessment and a court date, and then they have had to go again. Those parents are paying significant amounts of money, €7,000 or more, for those reports. The courts own them rather than the parents. There is a lot of waste. There is not a system really, to be quite honest, so we need to build a system. Even in respect of child maintenance, there is no system. The Chairman's question is pertinent and relevant to the lived reality of many thousands of families in Ireland. There are numerous answers and not only one. We hope that will be a part of the reform the new Bill will deliver.

Chairman

There is lot of store being placed on the family law Bill. We all have high expectations so let us hope it delivers.

Ms Karen Kiernan

Perhaps they are too high.

Ms Stephanie Whyte

The delays in family court processes can represent a chunky portion of the life of a child. The delays can be a very large proportion of a child's life. Once a decision is made, its enforcement can be immediate. We have seen scenarios where, for whatever reason, a child may not have seen or had access to a parent for a lengthy period and then jump quickly to weekend visits without any kind of support to help with that transition. It is reinforcing the point to which Ms Kiernan referred. Whenever the reform happens, soft supports must be provided to ensure there are places for families to get help to understand and process the decisions, and to implement them in order that children can be facilitated to engage positively in whatever decisions are being taken.

Mr. Damien Peelo

I concur with what everyone has said. We supported a woman during a recent case. It took until 24 years after her separation from her partner for her to get maintenance for her now-adult children. That partner was trained in the law. Tactical delays were deployed in order to raise questions, bring things back and miss appointments. It went on for so long-----

Chairman

Did that case go on for 24 years?

Mr. Damien Peelo

It went on for 24 years. The children are adults now.

Chairman

Did she succeed in the end?

Mr. Damien Peelo

She succeeded in the end but did not get backdated maintenance. She did not look for it. She just wanted to get rid of the case. She could have got more but she wanted to get rid of the case. The issue is that the partner of that person knew how to play and utilise the system. The many others who do not know how to do that are caught in the position to which Ms Bayliss referred whereby people do not turn up and bench warrants issue. Where the ultimate sanction is one of imprisonment, it is often the case that a mother will not choose that and will ask for it not to be enforced. Parents sometimes do not agree on an amount of maintenance and that is why we are saying an agency to deal with those issues is required. That way, those parents should not have to go to court because there is a statutory obligation to pay maintenance that we know is there. It should include a fixed minimum fee. There may be issues around one's personal public service, PPS, number and Revenue involvement. However, whatever way the agency may use that information, it is important that maintenance is immediately deducted so there are no long-term delays and people do not have to go through a court process. The person still maintains a right to bring matters to a court and have them judicially reviewed and appealed but that should not come at the cost of not paying the maintenance. The maintenance should start at the beginning of that process rather than leaving people waiting. We need to set a minimum statutory amount for situations in which parents do not agree and for that to be immediately enforced. That would help people immediately and protect families.

Chairman

That is true. Ms Smith has indicated.

Ms Gayle Smith

On that point, our current system facilitates the non-payment of child maintenance. It makes it too easy for non-custodial parents to shrug off their financial responsibilities for their children. That needs to be addressed.

Mr. Mark Garrett

I will make a quick additional point. All the other speakers have highlighted the practical issues associated with the delays. A common thread we are seeing in the work of the Law Society that applies to other access to justice issues across the board is the lack of investment in the court system in its totality. We have research that shows significant underinvestment in that area in this State. That applies not only to the number of judges but also to facilities in general. That is, I am sure, familiar to the committee. There are commitments in that regard but it is a significant point.

Chairman

Mr. Garrett said that increased investment and additional resources are required. Is an increase in the number of judges the primary necessity? There are also needs in respect of facilities.

Mr. Mark Garrett

We also need the resources, including buildings and research facilities, to go with those judges. We show that the impact of those shortcomings means a cost to the system anyway. Those costs are borne by those who have to go through the system rather than the Courts Service or the State.

Chairman

It is a common theme with which the committee is very familiar. Across the board, on a range of topics, we have come to the same conclusion, which is that among a number or other matters, we have an insufficient number of judges. Many of the issues we talking about today and other issues we have previously discussed have the common feature that if we had more judges in the system, we would have more courtrooms running in parallel, fewer delays, greater processing, throughput and efficiency and, ultimately, better services and justice for people in the system.

Senator Eileen Flynn

We need more judges who understand poor people and those from ethnic minority groups, and some of the real issues on the ground for ordinary people. That is not to mean any disrespect but it would be a great starting point for judges to be educated on what is going on in communities and with children.

Chairman

I thank the Senator. I will allow the last word to Dr. Shannon. Everyone else on the panel has spoken.

Dr. Geoffrey Shannon

I share the views articulated by Mr. Garrett. There are three aspects to this matter. The court buildings are only one third of the issue. The infrastructure is a key consideration. Creating a new set of buildings is not going to deliver reform. The support systems that are in place will deliver reform. I would prefer we did not establish a family court system unless it is properly supported. The success of the family court system will be dependent on the support systems that are put in place. Those systems include counselling and mediation services, those wraparound services. The third, and equally important, point is to explain why we are having these delays. We need fundamental procedural reform to address how cases are dealt with. There needs to be a root-and-branch review of the procedural issues at both District Court and Circuit Court levels.

I have a huge amount of sympathy for District Court judges who are dealing with a large number of cases. It must be remembered that in a child and care context, the most important decision one will ever take in a case is to decide whether to take a child into care. Yet, that is dealt with at a District Court level. That is all very well but we need to make sure that the supports are in place. I would articulate that as well as new buildings, we need the infrastructure and we need fundamental procedural reform.

Chairman

Very good. Excellent. That is agreed by all. That concludes our engagement on the matter today. We have had a very interesting and enlightening conversation. There are very few, if any, points of difference. All sides of the table are agreed on what needs to be done and on the way forward. Unfortunately, it is not within this committee's power to do it. This committee has an advocacy role and a reporting role. Unfortunately, it does not have an executive function. We will certainly publish a report in due course on all of the deliberations, and we will have our own recommendations, which will largely mirror the conversation we have just had.

I thank all of our witnesses for their testimony today, for their submissions to the committee, and for their ongoing work in the area across the board. All of the witnesses are known outside of this committee for their very solid and continuous work and diligence on these matters. I thank them for that also.

For the record, is it agreed among the members that we will publish all of the opening statements on the committee website? Agreed.

As there is no other business to be taken today we will adjourn this meeting. The next meeting of the select committee is scheduled for Tuesday, 8 November after the recess week. I thank again all of our witnesses and committee members for the debate today.

The joint committee adjourned at 4.52 p.m. sine die.