Children 'not consulted' in family law cases

Judges in the majority of family law cases involving children do not consult the children and many do not wish to, a conference was told at the weekend.

Dr Carol Coulter, an Irish Timesjournalist who has been appointed by Minister for Justice Michael McDowell to report family law cases on a pilot basis, was addressing the conference, hosted by One Family, on the impact of divorce on children.

Dr Coulter, who is compiling her reports for the new bulletin from the Courts Services, Family Law Matters, does not identify any party in cases.

She looked at figures from her study of cases in October in Dublin Circuit Court, which she estimated accounted for 4 per cent of all family law cases in the State last year.

It was just a snapshot, she stressed, and for instance did not include any case where the division of the family farm was involved.

The vast majority ended in a negotiated settlement and the majority did not involve children at all. Where children were involved, most ended with agreed joint custody, she said.

The care and main residency was usually granted to the mother and this reflected the practical situations of the parties.

The majority of divorce cases, she continued, were heard "in five minutes" with 90 per cent settled quickly following on from judicial separations.

A very high proportion of divorces were concerned only with extinguishing succession rights and finalising arrangements made by the parties themselves.

A number of recent cases where custody arrangements of children were at issue were outlined. One involved a 4½-year- old girl held in joint custody who spent alternate weeks with her mother and father. Her mother was applying to have primary custody, with the girl staying weekdays with her and weekends with the father.

"The judge refused her application and left the status quo. There was no consultation with the child whatsoever and no independent evidence of any kind."

She outlined other cases, involving older children, where the children were not consulted and where previous psychiatric reports on children were not consulted by judges.

Dr Coulter said that in the cases she had so far studied, parents generally were not seeking to exclude the other parent from the children's lives.

Dr Fergus Ryan, chairman of One Family, said the child's voice should be independently voiced in every family law case involving a minor.

He said section 11 of the 1997 Children's Act provided for the appointment of a guardian ad litem in private cases.

"Ten years on and it has yet to be implemented," Dr Ryan said. "This is a serious failure to live up to our international obligations . . . It is arguably because of the financial implications [ to the State]."

Rachel Kelsey, solicitor and former Chair of the Family Law Association of Scotland, said that since 1995 the Scottish courts must, "so far as practicable", give children the opportunity to express their views if they wish to and must take these views into account.