Differing approaches to financial settlements and access to children after marital breakdown were outlined at a conference on family law in Dublin at the weekend.
The Four Jurisdictions conference brings together family lawyers from England, Scotland, Northern Ireland and the Republic and discusses similarities and differences in their family law regimes.
At the conference, the break-up of a fictional couple with three children - David and Victoria (not Beckham, the conference organisers stressed) was used as a case study to examine the different approaches in the four jurisdictions.
David and Victoria were married in 1992 and their children were born in 1993, 1996 and 1999. The marriage broke down in 2000 and they obtained a judicial separation in 2001.
The terms of the separation agreement were that the children would live with Victoria, but would spend every weekend and three weeks of the summer holidays with David.
The arrangements soon broke down, with the eldest son wanting to stay with his mother in order to attend a violin lesson on Saturday morning, thereby not going to his father's house until Saturday afternoon.
The father wanted to attend a soccer match with the three children on Saturday mornings instead, followed by a family weekend. Eventually the relationship between the father and eldest son broke down, with him refusing to visit the father at all.
The youngest child, aged only two when the separation agreement came into being, began to be upset after about a year when his father arrived to collect him from his creche. The owner of the creche felt it was not right for him to be forced to go, the mother agreed, and he only visited his father intermittently for weekends. The husband felt the mother was not encouraging the children to go on access visits.
The middle child, a girl, had no problem with the access arrangements.
The father wanted to return to court to have the access arrangements enforced. He issued a bill for divorce. The wife counterclaimed, stating that proper provision had not been made for her and the children. She also claimed that the children's rights were not fully accounted for in the access arrangements.
Lawyers from the four jurisdictions then outlined what the likely outcome would be (see panel below).
Case study: four jurisdictions, four approaches
Ireland
Mary O'Toole SC said the Irish courts saw the welfare of the child as paramount. While judgments existed saying it was desirable that the views of the child be obtained, in practice the opinion of an expert, normally a child psychiatrist, was obtained.
In the absence of damaging behaviour from the father, it is likely the outcome of the report would be that there should be ongoing access between him and the children, but also be some form of family therapy. The wife would be able to reopen the issue of financial provision in the divorce proceedings.
The court would assess the fairness of the terms of the separation order and assess the up-to-date value of the assets of both parties. If the assets had increased in value to a greater extent than anticipated, the court may make further, modest, financial provision for Victoria.
Northern Ireland
Hilary Wells said that in Northern Ireland there were now a lot of demands for the law to be reformed, especially in the area of arrangements for children following divorce. The key principle in Northern Irish law was that the welfare of the child had to be paramount. Their wishes and feelings should be taken into account, depending on their age and level of understanding.
However, there was no legislative basis for providing separate legal representation for children in family law proceedings. There was, however, a requirement for a compulsory social welfare report.
Where a parent is not co-operating with a contact order, the legal possibility exists to remove the child and place him or her with the other parent, but this is rarely used. She acknowledged current law failed to assist the non-resident parent sustain their relationship with their child.
Scotland
The issue of judicial separation does not arise in Scotland, according to Morag Wise QC. Instead, matters are dealt with as part of divorce proceedings. Most arrangements relating to children are made well in advance of divorce, by an agreement between the parties. Most financial settlements are also usually made by agreement.
The courts discourage a "second bite at the cherry" if agreements are concluded between two sane adults, properly represented. It would therefore be extremely unlikely that Victoria could reopen the issue of financial provision.
In relation to the dispute concerning contact with the children, the paramount consideration would be the welfare of the child. There should be no court order unless it would be better for the child, who must be given an opportunity to express his or her views.
The legislation provided that a child over the age of 12 had to be consulted about a parental right and in practice, the views of children aged 9 or 10 are routinely sought in one way or another. Very young children's interests can be represented by a curator ad litem, who can investigate what is best for them and represent their interests in court. Older children often have their own legal representatives.
England
Judicial separation is rare in England, except in situations where the marriage broke down after less than a year, according to barrister Malcom Sharpe. He said Victoria would find it extremely difficult to reopen the consent she had given to the settlement, unless there was fraud, non-disclosure of material facts or new events which invalidated the basis of the order.
The general view of the English courts now was that orders in relation to where the children lived and visiting arrangements should only be made where there was a proven need for them. The couple here had agreed that the children should split their time with them, so it was doubtful that an order was necessary. Instead the cycle of hostility should be broken, using psychological experts and family therapy.
There was always the "big stick" option, threatening to transfer residency or committal to prison of the parent refusing to comply with a court order. This should never be an empty threat or put at risk the welfare of the child, he said.