The recent Rose of Tralee competition was interrupted by a man, dressed as a priest, who jumped on the stage. That man was Matt O'Connor, founder of the UK organisation Fathers4Justice . O'Connor jumped onstage, holding a picture of his son, and shouted: "Fathers for justice! To all the fathers in this country who are denied access to their children, please join me and the broken families of Ireland."
His action raises the question of whether fathers actually get a fair deal when it comes to access and related issues in the family courts. Our society and laws have radically changed, in many ways for the better. In previous times wives and children were regarded as the possessions of a husband, while childrearing was seen as an exclusively female domain.
Many marriages stayed intact due to societal pressures, but over time family breakdown became more common and less stigmatised. In such cases, it became usual that children of divorced or separated parents mainly resided with the mother. This fact influenced how the court apportioned the family home and maintenance. This has led to a perception among many fathers that they get a raw deal in the family courts.
Some of our laws and constitutional articles need to be updated. Historically, the role allocated to fathers was as breadwinner; childrearing was assigned to the wife. This was enforced not just by social attitudes, but also by the law. The marriage bar, which dated from the early 1930s, forced many married women out of the workplace. This was finally removed when Ireland joined the EEC in 1973.
The Constitution defined women by their role in the home. Article 41.2.1 states: “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.” Article 41.2.2 states: “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
The Constitution made clear that a woman had her duties in the home, and suggested that working outside the home was neglecting those duties. Thankfully, our society has evolved. Women are no longer limited to this one role. In the 1981 census, 55 per cent of women over 15 defined themselves as “looking after home/family” . Three decades on, this figure reduced to 17.5 per cent.
Parenting roles are changing: fathers are spending more time with their children, and are adopting more hands-on parenting. I believe the role both parents have in childrearing needs to be acknowledged. I don’t believe defining a woman by her role in the home is appropriate or fair to either sex. This Government is committed to a referendum on articles 41.2.1 and 41.2.2.
In cases of marital breakdown the Judicial Separation and Family Law Reform Act 1989, the Family Law Act 1995, and the Family Law (Divorce) Act 1996 are gender-neutral pieces of legislation. Nowhere do these Acts say a father or mother is more or less fit to have care of a child. Access and custody law place the child’s best interests at the heart of their consideration. However, judicial decisions are influenced by our society. We are moving away from presuming a mother is the only childrearer, the father the breadwinner, and that in breakdown the mother should automatically be the main carer. Increasingly courts are listening to children, and increasingly co-parenting post-separation is being considered.
Our parenting law has changed also. The Guardianship of Infants Act 1964 sets out the law on guardianship, custody and access. A child born to marital parents, or parents who subsequently marry, are joint guardians and custodians of the child. Where the parents are not married, the mother is the sole custodian of the child.
Previous to 2015, with regard to unmarried parents, the mother was the sole guardian of the child until the father was appointed by agreement or by court order. The Children and Family Relationships Act 2015 changed that. Since January 18th, 2016, an unmarried father who is cohabiting with the mother of the child for at least one year, three months of which are following the birth of the child, will automatically have guardianship rights in respect of his child.
The Children and Family Relationships Act 2015 contains groundbreaking special provisions to tackle breaches of access. If a court order for access or custody is being unreasonably denied, or not taken up, the parent being denied access may apply to the court for an enforcement order. The views of the child will be considered where possible, given the child’s age and understanding, and taken into account when determining the order. The court has the power to grant additional access, order expenses to be reimbursed, require attendance at a parenting programme or family counselling, or receive information about mediation. In addition the court has the power to imprison a parent for breach of access.
There are indeed heartbreaking cases of fathers whose access to their children is frustrated and denied by the mother. Thankfully, this is not very common, but when it does happen it has seriously negative consequences for the children as well as the father. The courts face challenges: jailing a mother, who more often than not has primary care of the child, is a tough remedy. Clearly a parent being jailed can have profoundly negative consequences for a child. I understand the frustration of fathers who do not believe the courts are quick enough to use this remedy. However, as a family lawyer and mediator, it is my view that criminalising and jailing parents has serious consequences, but is necessary as a last resort.
Where the relationship between parents is fractious, and where access becomes a war zone, other remedies are needed. In such situations tense pick-ups and drop-offs of children outside Garda stations are in nobody’s interests.
I believe the provision of access centres, either by voluntary bodies or State-funded,which crucially would be open at weekends, would provide a workable solution. The provision of access centres where mothers and fathers are in fractious relationships, or where there were allegations of intimidation or violence, would greatly assist. Mothers and fathers could avail of separate entrances, and children could be collected for access,or spend access time in a family-friendly centre. I believe in complex cases where access is being frustrated, or there are safety concerns, such centres would go a long way to reducing breaches of access.
Josepha Madigan is a solicitor and a Fine Gael TD