Dáil Éireann Debate, Wednesday - 7 October 2020
208. Deputy Jackie Cahill asked the Minister for Justice the forms of protections in place within the courts system to ensure that children and custody issues are not used as leverage in proceedings between parents of such children; and if she will make a statement on the matter. [29054/20]
Amharc ar fhreagraIrish family law places an emphasis on recognising the rights of a child to the society of both his or her parents. Very significant modernisation of the law in this area was brought about in 2015 with the enactment of the Children and Family Relationships Act 2015, which amended extensively the Guardianship of Infants Act 1964. The reforms in family law provided for in that Act recognise the crucial role of parents and the need for a child to maintain meaningful relationships with both parents.
Married parents of a child are automatically joint guardians and have joint custody of their children. Where married parents separate or divorce, they can decide between themselves on custody arrangements for their children or apply to the courts to decide on the matter.
The Deputy will be aware that Article 42A.4 of the Constitution requires that provision be made by law that in the resolution of all proceedings concerning the guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
Section 3 of the Guardianship of Infants Act 1964 provides that the best interests of the child shall be the paramount consideration for the court in any proceedings where guardianship, custody or upbringing of, or access to, a child is in question. Section 31 of the 1964 Act sets out a wide range of factors that the court is required to take into account when determining the best interests of the child in such proceedings. These factors include the benefit to the child of having a meaningful relationship with each of his or her parents. Also required to be considered, where applicable, are proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them. A further factor to be considered is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The courts shall have regard to all of these factors or circumstances that it regards as being relevant to the child concerned and his or her family and make its decision accordingly.
Section 11 of the Guardianship of Infants Act 1964 provides that either parent of a child, whether or not he or she is also a guardian of the child, may apply to court for a direction regarding the custody of a child or the right of access to the child. A court may also make any necessary orders under section 11 when it is dealing with proceedings relating to divorce or judicial separation. Section 11D of the 1964 Act obliges the court in proceedings under section 11 to consider whether the child's best interests would be served by maintaining personal relations and direct contact with each of his or her parents on a regular basis. Section 25 of the 1964 Act also requires the court, as it thinks appropriate and practicable, to take into account the child's wishes in guardianship, custody and access matters, having regard to the age and understanding of the child. Section 12A of the 1964 Act provides that in making any order under the Act, the court may impose such conditions as it considers to be necessary in the best interests of the child.
I have no role in the making of court orders in relation to guardianship, custody and access to children. This is a matter for the courts, which are, subject to the Constitution and the law, independent in the performance of their functions.
I have recently published the General Scheme of a Family Court Bill, which provides for the establishment of a District Family Court, a Circuit Family Court and a Family High Court as divisions within the existing court structures. The enactment of this Bill is a key commitment in the Programme for Government. The General Scheme of the Family Court Bill aims to streamline family court processes to make them more efficient and user-friendly, while encouraging greater use of alternative dispute resolution. The development of sensible, comprehensive and sensitive family law procedures, particularly for vulnerable families, will be central to the new system. The proposals in the General Scheme of the Family Court Bill are a result of a broad consideration as to the best means of providing access to various family law mechanisms available to those families involved in private family law cases.
