Our most important family law reform for a generation isn’t child friendly

Compared with best practice elsewhere, our courts currently have major shortcomings from the perspective of children.

by Gerry Fahey

thejournal.ie, Wednesday August 6th 2014

IF YOUR CHILD was having behavioural and/or emotional problems would you go to your local solicitor to have them deal with the problem? I think not and I certainly would not advise you to. Yet, in practical terms, this is arguably what the Oireachtas will bring about with its proposed Child and Family Relationships Bill.

It is beyond dispute that children encounter emotional and/or behavioural difficulties when their parent’s relationship is fractured, and these problems can last a lifetime in a substantial minority of cases. 

The existing dysfunction in our family courts system will be further exacerbated by what the Oireachtas is proposing in the Bill. I choose the descriptor ‘dysfunctional’ deliberately having read Roisin O’Shea’s detailed research on our family court system as it currently exists. Compared with best practice elsewhere, our courts currently have major shortcomings from the perspective of children and the new Bill, as proposed, instead of addressing these problems will make them worse. Don’t be misled by the almost exclusive focus in the media on important issues such as guardianship, adoption and surrogacy which are addressed in the Bill – even though the Bill does contain good proposals in some of these areas.

However, divorce and separation are becoming increasingly commonplace and, as a consequence, the effect of the proposed Bill will be very negative for a large number of children who are neither adopted nor conceived through surrogacy. In attempting to fix a problem for a small number of cases emotional damage could be done to children in a much greater number of cases if our legislators are not careful or mindful. The failure to recognise this is a classical example of the ubiquitous cognitive error of ‘ignoring base rates’. Guardianship, adoption, and surrogacy problems can be easily fixed by legislation solely for that purpose, and it is the other aspects of the Bill that people should be very concerned about.

Exemplars of best practice 

The Association of Family and Conciliation Courts (AFCC) is regarded as the premier interdisciplinary and international association of professionals from different countries dedicated to the resolution of family conflict.  AFCC members are legal practitioners, researchers, social workers, judges, psychologists, psychotherapists, psychiatrists and policymakers working in the family court arena. The current President is Peter Boshier who until December 2012 was Principal Family Court Judge of New Zealand. A current Board member is Diane Bryant who was appointed Chief Justice of the Family Court of Australia in 2004.

Unlike Ireland, the Australian and New Zealand family court systems are regarded as exemplars of best practice when it comes to dealing with divorced and separated families and their relationship with a country’s legal system.

In its April 2014 Family Court Review journal the AFCC’s Task Force Report on Shared Parenting was published:

Shared parenting connotes that the parents have joint decision-making authority and that the child spends at least 30-35% of his or her time with each parent…Promotion of shared parenting constitutes a public health issue that extends beyond a mere legal concern. Parents who collaborate in child rearing have a positive effect on their children’s development and well-being….Children benefit from parents sharing in their upbringing throughout their life span, where appropriate, including in the earliest stages of life…In order to maximize the court’s potential to assist parents in achieving as much self-determination and collaboration as possible, both alternative dispute resolution (ADR) options and case management tools are strongly preferred.

When compared and contrasted with what the AFCC recommends Roisin O’Shea’s research showed that, among other things, what happens when it comes to shared parenting in Irish family law cases is the exact opposite of what the AFCC recommends:

In 95% of the cases observed the primary carer was the mother, and in 100% of cases where access was unilaterally withdrawn, it was done by the mother.In no case was the primary carer sanctioned for persistent unilateral cessation of access in breach of court orders. In 93% of the cases before the court, children under the age of 12 resided with the mother.1% of children resided with both parents under 50/50 parenting arrangements.

Mandatory mediation 

Unlike the situation in Ireland, in the Australian Courts mediation between couples is mandatory. Australian judges and politicians recognised, some years ago, that the adversarial legal system was counter-productive from the children’s perspective when it came to family law cases, and based its current best practice approach on a far less adversarial approach than that practised in Ireland. All the Child and Family Relationships Bill proposes in this regard is the continuation of the current defective system whereby the solicitor is simply required to advise her or his client that they can go for counselling/mediation. There is nothing mandatory about this.

The only mediators allowed in Australia are those with a qualification in the behavioural sciences as well as a minimum number of years of relevant clinical experience. Mediation by skilled professionals with clinical experience has been empirically shown to be very effective in reducing conflict between couples, improve the short- and long-term emotional and behavioural outcomes for children and, by reducing litigation, substantially reducing unnecessary legal fees which divorcing or separating families can usually ill-afford.

A child-unfriendly family court system

The proposed Bill gives the judiciary even greater powers to remove parents from their children’s lives in the case of separating or divorcing parents, and this together with the obstinate adherence to the adversarial approach will exacerbate what is already a very dysfunctional legal system, from the perspective of children. In fact, if our legislators set out to deliberately do the maximum emotional damage to the children of separating or divorcing parents they would not have been able to design a more child-unfriendly family court system. Incredibly, the proposed Bill will make the current situation for most children even worse.

This is not at all surprising from a historical perspective. Time and time again, when it comes to children, the Oireachtas has enacted legislation which turned out to be very defective. The Industrial and Reformatory schools were operated under Irish legislation enacted by the Oireachtas. Some 80% of children who ended up in these schools passed through our courts on their way to these schools. We should always bear this poor record of the Oireachtas in mind when it comes to protecting children. The proposed Bill, for the vast majority of children who will be affected by it, is yet another example of Irish legislators at their worst when it comes to legislation affecting the largest non-voting section of our population – our children.

What the AFCC’s report contains is consistent with the extensive scientific evidence in support of the AFCC’s position on shared parenting. The Child and Family Relationships Bill is anti-child in the case of most children who will be affected by it. Fixing the problems of guardianship, adoption and surrogacy should not blind the general public to the inherent problems with the Bill.

Gerry Fahey is an Occupational Psychologist and a graduate of TCD and the University of Illinois at Urbana Champaign.