‘We went to court arguing over €30’

When father-of-two David moved out of the family home, he agreed with his ex-wife to pay half the bills and the shopping for their young children. But he objected to an additional €30 weekly payment, which he believed was solely for her benefit, while she had her own income and he was struggling to pay rent on a second home.

They had also agreed between themselves that he would take the children every weekend. But one day when he turned up to collect them, he says he was quizzed on the €30 and warned that if he wasn’t prepared to pay it, he needn’t bother seeing his children.

Shortly afterwards, “I received a solicitor’s letter which confirmed I could only see the children every second week, not every weekend and it just escalated from there”. As he saw it, he was being “held to ransom”.

I had to go to court for a year to fight to see my children. It was a very tough time and it was a situation that could have been dealt with amicably

He believes his experiences reflect how difficult it is to separate maintenance and access “because the two do go hand in hand and the children are sometimes used as pawns in that situation”. The couple had tried to do mediation, but were on a waiting list for three months, by which time communication had completely broken down. “I had to go to court for a year to fight to see my children. It was a very tough time and it was a situation that could have been dealt with amicably,” he says. “Unfortunately, a lot of resentment came through.”

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The maintenance issue was settled first, with what he was paying approved. “We went to court arguing over €30 and [I] came out of court paying the same amount”, so “we went to court for nothing”. He is back seeing his children every weekend, with at least one night’s stay.

Ongoing disputes

“So often when you fight over things like that, it does damage the long-term relationship,” says David. While he pays the maintenance, there are ongoing disputes about the cost of extra-curricular activities on top of that.

One Family, the support organisation for people parenting alone, is calling for a statutory child maintenance agency to help separated couples on the agreeing and also the upholding of regular payments towards the financial costs of raising a child. Maintenance must be seen in the context of children's rights and child poverty, it argues, rather than being regarded as a private dispute between two individuals.

In the 2016 Census, the number of separated and divorced people had increased by 8.9 per cent since 2011, rising from 203,964 to 222,073. There were 87,704 separated or divorced persons living in households with children, an increase of 5.1 per cent on 2011. Only a fifth of separated or divorced men were living in households with children compared to more than 50 per cent of women.

This summer, One Family published results of an online survey in which just under 60 per cent of separated primary carers of children said they received maintenance payments. Of those, 58 per cent had gone to court to get them, while 34 per cent had agreed them amicably and 8 per cent through mediation.

The State doesn't take responsibility at any level for child maintenance payments, says One Family's chief executive Karen Kiernan. "People are left to duke it out between themselves to figure out how much to pay between them. There isn't even a framework for people who can work together, to determine what's fair."

The in-camera rule governing family law court cases means there is a shroud of secrecy over which parents are being ordered to pay what, with no point of reference for the public.

Maintenance is one of the biggest stressors for separating parents, Kiernan observes – both for those who fear they won’t receive it and for those who can’t afford to pay it. In the absence of guidance on what’s appropriate, people pay for solicitors to help determine the amount.

“People’s focus tends to sharpen when it comes to money. There is never enough to go around,” she says. The ideal for shared parenting is to have two homes, both of which the children can go to, but clearly that’s going to cost considerably more than a family unit under one roof and everybody’s standard of living is likely to go down.

“Some people may have negative feelings towards the paying of the maintenance or what it is used for,” she says. “All these emotional issues and separation issues then intersect with the actual amount of money that has to be paid.”

Many fathers would argue that the State and the courts don’t yet recognise increasing parenting equality between the genders.

“Ireland is not set up to support people to share parenting well,” agrees Kiernan. “It either supports married families or single mothers, it hasn’t yet developed systems, policies and understandings around what good shared parenting looks like.”

Consistent poverty

In the case of parents who won’t, or can’t, meet their financial obligations, other EU countries have back-up services. Here, the lack of support around maintenance is seen as a major contributing factor to almost 21 per cent of lone parent households being in consistent poverty, according to CSO figures in 2017.

The ideal model is in Sweden, says Kiernan, where the state takes responsibility for ensuring that children don’t go without. There, a parent can apply to the social insurance agency for maintenance support, which the agency provides, recouping the money from the parent who won’t pay. Or, in the case of genuine inability to pay, a supplementary allowance is paid for the child out of public funds. This set-up removes uncertainly around payments that many families struggle with in Ireland. “It is seen as a private matter here – if you get a maintenance order and it’s not paid, that’s your problem. You have to go back to court again.”

We’re “decades behind” the UK, she says, where a child maintenance service enforces payments and there is the Children and Family Court Advisory and Support Service (Cafcass) to help those going through court proceedings. We need a child maintenance system linked to a court welfare service, to help people stay out of court, Kiernan adds. “We don’t have a prevention and early intervention approach. We let things escalate through family law courts, very old courts, and then we sit back and wonder why there are problems.”

Dublin solicitor Keith Walsh, who is chairman of the Law Society's Child and Family Law Committee, says he is, personally, "cautiously in favour" of what One Family is saying. "We do need a lot more guidance and direction on how maintenance should be, but there has to be room for discretion."

But he “very strongly welcomes” One Family’s move to stimulate discussion of the issue. “It is a very important debate and a lot of court time and energy and resources is used up in fixing maintenance – particularly in the District Court.”

He too believes that “the more the State can do to keep people out of family courts the better”. Mediation is one way, or alternative dispute resolution, whether through legal aid lawyers or private lawyers, and more information about levels of maintenance would also help.

Walsh says it is important to distinguish between the District Court and the Circuit Court. Guidelines might be more effective for the former, where maintenance can be dealt with in isolation and there is a maximum limit for court orders of €150 per child per week. Whereas the Circuit Court deals with more complex cases, and child maintenance is just “part of a suite of potential orders a court might make on divorce or judicial separation”.

He believes much higher levels of maintenance are awarded in the Circuit Court because the people before them have more disposable income. “I would be shocked if the Circuit Court ones weren’t multiples of the District Court.”

Before there can be State guidance on maintenance rates, we have to know what is actually happening in the courts, he says, with research based on empirical data. While the Courts Service could, potentially, collect such data, legislation would need to be changed to allow academics or lawyers access to family law court files.

Separated parents complain that, on anecdotal evidence, there seems to be no consistency between different judges. As Kiernan sees it: “You are getting a completely different outcome for your family depending on what judge and what area you live in. It’s almost a privatised, random response to what’s a very serious issue for children and families.”

Two very important questions have to be answered, says Walsh. Firstly, what are the variations between judges in similar cases and, secondly, does what judges award differ from what people agree between themselves.

I don't think children and families should be plunged into poverty because the other parent won't pay up or has disappeared

Judges, of course, are independent, he adds, but if maintenance guidelines were introduced as part of legislation, “you would hope they would follow the guidelines”.

The Children's Rights Alliance also welcomes One Family's recommendations for a new approach to maintenance. "I don't think children and families should be plunged into poverty because the other parent won't pay up or has disappeared," says its chief executive Tanya Ward, who believes the proposed child maintenance agency would help prevent child poverty and enable a more consistent approach.

‘Rough-and-ready justice’

“Family law courts is rough-and-ready justice, depending on what judge you get,” she says. While there are some excellent judges, others find these kinds of cases more challenging. Judges say themselves, she adds, that it is very difficult when you don’t have all the background information and very little time in which to make a decision, which may have serious consequences for a family.

Both David and his ex-wife eventually went on parenting-when-separated courses, which helped take them out of the “bubble of going to courts”, he says.

“Some people are unable to communicate in an adult way and I think it gives you some strategies you can work for the sake of your children.” So often, he says, issues over maintenance and access “all boil down to severe lack of communication”.

He believes the system is broken, with courts really not wanting to administer maintenance and many men not trusting the judicial system because it doesn’t reflect a changed society where both parents are considered equally in the upbringing of their children.

“Unfortunately,” he adds, “it is the children who are losing out.”

Separating parents can get information and support from One Family (helpline 01-662 9212) and free family mediation through the Legal Aid Board.

Separation stories

When Laura separated from her husband and father of her three children 12 years ago, they agreed in the District Court that he would pay her €60 a week, along with half the school costs and half Christmas costs.

“In those 12 years, he has never complied with the maintenance agreement, which has put me under a lot of stress to try and manage all the outgoings,” she says. Not only did he refuse to share the school and Christmas costs but he also reduced the weekly pay-out to €55, she says.

She became particularly frustrated with the court system when, five years ago, she tried to get an increase in the weekly maintenance because the children were costing more as they got older. While she was asked to submit bank statements and receipts to make her case, she says, her ex-husband was simply asked to fill in a form stating income and outgoings, with no evidence required to back up his claim that he couldn’t afford to pay more.

“This man has a super income and he still dodges this responsibility,” says Laura, who has given up going back to court. “You reach the point where you have to accept they are just not stepping up to the plate and if you have to keep taking somebody back to court to pay, you know they don’t want to pay.”

She says she has never denied him access, believing if the children wanted to be with him, they should be. “I just put my feelings in a box and put it on a shelf because none of it was their fault.”

As she sees it, maintenance orders are not enforced. That’s also the experience of Caroline, who lives outside Dublin and got a District Court maintenance order in 2012 of €40 a week for her and her daughter after her marriage broke down. But, she says, her ex-husband has never paid it.

She went to court to get an attachment of earnings order, directing the employer to deduct it at source – a hearing her ex-husband didn’t attend. A few weeks later, she got a letter from a court clerk saying her ex wouldn’t have enough to live on if the deductions were made. Shortly afterwards, he left the job – voluntarily or let go, she doesn’t know.

I realised there is no point in trying to get something off a person that is never, ever willing to change

For some years she survived on rent allowance and her €217 one-parent family payment, paying €30 a week contribution to rent, buying shopping, running a car and paying arrears on domestic bills that were run up before the separation. “There was no money left but nothing lacking.”

Caroline believed it was a waste of time to keep going back to the District Court, which she found to be a “head-wrecking” ordeal.

“I realised there is no point in trying to get something off a person that is never, ever willing to change. It all depends on me and I got very motivated to do it by myself.”

She started studying for a career in accountancy in 2014. When she asks her ex to contribute to expenses such as for school, the response “all depends on him and how he is at that moment”. She believes he reckons he is providing for their daughter by taking her two days and an overnight at his parents’ house once a week.

About to qualify as an accountant, Caroline says hers is a “happy-ending story but it could have been a completely different ending”.

While both women highlight problems around enforcement of maintenance orders, family solicitor Keith Walsh says his experience in Dublin is that judges are willing to follow through and put people in prison where they have consistently failed to pay maintenance. He acknowledges that may require repeat visits to court.

“Generally, judges are very receptive to cases where somebody is messing around in relation to maintenance. I think it is much more difficult to enforce access if the mother is messing around.”

However, he adds, a judge has to weigh up if it’s really better to send a serial defaulter to prison where they will not earn any money for a week or two and might lose their job.

* Names have been changed