Doctoral thesis confirms poor outcomes produced by our family court system

Opinion: Research shows judges often finds disputes over children difficult and distasteful

Fri, Dec 13, 2013, 12:01

Two weeks ago, after an email exchange, I met in a Dublin hotel a woman who claimed to have something to show me that I would find of interest. When we met, Róisín O’Shea handed me an abstract of her as yet unpublished PhD thesis on the Irish family law system.

For nearly 20 years, I’ve been writing about the abuses and brutalities occurring in Irish family courts. Such has been the wrath provoked that there have been moments when I sincerely wondered if I was indeed grasping at the wrong end of the stick.

But I have also long felt that, if ever the definitive truth about the Irish family court system were to emerge, it would be related by a woman. As I read the detailed abstract of O’Shea’s thesis, I understood that, after two decades of waiting, I was sitting in the presence of a one-woman cavalry.

O’Shea said she owed me an apology. For years she had read my articles about family law, becoming more and more certain I had lost the plot. She started out her research as a feminist, certain she would find evidence of discrimination against women. But all the bias – and she found a great deal – was to the detriment of men and children. Her research, she said, overwhelmingly vindicated everything I’ve written. Actually, on an initial cursory scan of the 400-plus pages of her thesis, I fear I may have understated things.

Her research, into the Irish Circuit Court system, was funded by the Irish Research Council and conducted between October 2008 and February 2012. With ministerial consent she observed 1,087 family law cases in all eight circuits, and carried out comparative research in New Zealand and Canada.


Wealth of data
What sets this research apart is the volume of cases analysed and the wealth of empirical data it contains. It amounts to by far the most extensive and detailed study undertaken of the Irish family court system.

O’Shea describes an opaque and costly system, with poor outcomes for children and fathers. A primary objective of her research was to determine the basis – if any – of judicial decisions, and to identify any patterns. She discovered a total absence of consistency.

She also conducted interviews with judges who hear family law cases. Most indicated an intense dislike for the emotional context of family law, and said they found disputes over arrangements for children difficult and sometimes distasteful. Her findings indicate a staggering ignorance of the emotional and psychological dynamics of relationship breakdown, and an absence of judicial training.

The operation of the in camera rule and the isolation of judges ensure each judge develops a highly subjective approach, the interpretation of which becomes virtually the sole function of family law practitioners. Hence, the prejudices and foibles of particular judges dictate not only the outcomes but also how cases are presented in court.


Legal fiction


Judges appeared to see access orders as having more to do with keeping warring parents apart than addressing the needs of children. “Joint custody” is a legal fiction designed to camouflage the reality. In 95 per cent of “joint custody” cases observed by O’Shea, mothers ended up in effect the sole carer, and “access” orders severely restricted the role of the non- resident parent. Frequently, in cases where children resided with their mothers, schools refused to communicate with the “joint custodian” father. Day-to-day care was shared in just 1 per cent of such cases. Where sole custody was ordered, it was usually to the mother.

Where access was unilaterally withheld, it was invariably by mothers, who appeared to regard children as their personal property. By and large, this perspective was tacitly endorsed by the courts. No judge implemented any sanction against such behaviour, even when court orders were repeatedly breached.

O’Shea first studied law as a mature student at Waterford Institute of Technology, hoping to learn how to process her own divorce. A chance encounter with the chief justice of Canada propelled her into family law research.

In 2010, she won the Higher Education Authority innovation in research award. In 2012 she gained joint second place in the innovating justice awards of the Hague Institute for the Internationalisation of Law. Last June she presented at the Association of Family and Conciliation Courts 50th anniversary conference in Los Angeles.

The examiners who approved her for the award of PhD, subject to minor refinements, were Prof William Binchy, TCD, and Dr Aisling Parkes, UCC, who observed: “This is clearly a major piece of empirical research of a socio-
legal nature, a most unusual achievement in Irish legal scholarship, where empirical research is in its infancy.”

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