Dáil Éireann Debate, Wednesday - 5 May 2004
9 Mr. Boyle asked the Minister for Justice, Equality and Law Reform the steps he intends taking to ensure that the judicial system makes the presumption to provide joint residency for children of divorced or separated couples; and if he will make a statement on the matter. [12727/04]
Amharc ar fhreagraI assume that by referring to "joint residency" the Deputy is referring to joint custody of a child.
Section 11A of the Guardianship of Infants Act 1964 provides that, for the avoidance of doubt, it is declared that the court, in making an order under section 11 of the 1964 Act, may, if it thinks it appropriate, grant custody of a child to the child's father and mother jointly.
Section 11D, as inserted by the 1997 Act, provides that, in considering whether to make an order under section 11 and other sections, the court shall have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis. Section 3 of the Guardianship of Infants Act provides that, where in any proceedings before any court the custody of a child is in question, the court shall have regard to the welfare of the child as the first and paramount consideration.
These legal provisions set out in simple form the underlying principles which should have effect in any decision in respect of a child, first, that joint custody is an option, second, that access to parents must have regard to the welfare of the child and, third, that it is the welfare of the child rather than the interests of the parents which should be the predominant consideration in the exercise of the Irish courts jurisdiction in respect of custody issues.
The presumption has been that the parent who has provided the greater support for the child is normally given custody of the child. However, in recent years, there has been a view that the minor parent is perhaps not given as much control over the situation as they might. At Christmas and Easter each year, there is the sad spectacle of parents, fathers in particular, protesting about the lack of access to their children. Would joint custody be acceptable so that the child could spend the major part of the week in one parent's house and the remainder in the other parent's house? I take the Minister's point that the welfare of the child is of the utmost and primary importance. Would he agree that a move towards allowing the minor caring parent to have greater access to the child and more provision for joint custody would be a step in that direction?
This is a difficult issue. A dispute between parents in regard to the custody of their children is sad and tragic. While theirs is not an enviable task, the Judiciary must strike a fair balance between the rights and interests of both parents and the rights and interests of the children. While I sympathise with the notion that there are circumstances and scenarios in which it would be possible to ask a child to live for a number of days a week or month with one parent and the remainder with the other parent, I concede that children's interests must be taken into account in all this. They must not have to travel between two homes against their wishes. Their lives, dignity and privacy must be taken into account. It is not an exact science.
I take the point to which Deputy Cuffe alluded tangentially in that fathers, in particular, have felt that the traditional pattern of judgments in courts has minimised their role and tended to exclude them by default. However, the Judiciary is beginning to change and I hope the provisions of the Civil Liability and Courts Bill 2004 [Seanad], which proposes to end in camera rulings, will bring greater consistency and enlightenment to decisions in custody cases. Where there is a pattern of a judge operating on the default basis that the mother always gets custody, which is the perception of many fathers who are dissatisfied with the system, it will at least be exposed to the light of day and there will be some public debate on such patterns of decisions made in our courts.
There are two parents in such situations and often there is no fault involved other than that they have separated or divorced. Consequently, there is often a perception that one parent gets entire care while the other is left on the sidelines. This has given rise to much grief and concern in recent times, especially given the changing nature of society.
The Minister alluded to the Civil Liability and Courts Bill 2004 [Seanad]. Is he satisfied that the new in camera rule and the other changes proposed in the Bill will open up this area considerably?
I am satisfied it will open it up. My only problem is whether I have inadvertently opened it up too far and whether I will have to introduce some controlling mechanisms to achieve an adequate balance to ensure that people are not intimidated by the presence of strangers during family law cases which are difficult occasions.
I agree with Deputy Costello that these are sad cases and that sometimes there is no fault on either side other than that an irretrievable breakdown has taken place. In that context, it is important — and the Judiciary takes this into account — that no tendency to use children as bargaining counters in what are discussions about finance and the like is exhibited or has any effect. On even the most public occasions one can sometimes observe a little insight into the mind of a child. When Deputy Costello was speaking, I was reminded of the occasion of the funeral of Princess Diana when her brother made a very moving speech. One of the points he raised was the rail journeys between the parents' homes and the sad and poignant situation of the two children travelling between two homes on a regular basis. I do not wish to preach to the Judiciary on this matter but I hope its members are fully enlightened as to the sense of marginalisation many fathers feel and take it fully into account, while at all times regarding the children's interests as paramount.
