On Tipp FM, Gillian O’ Mahony spoke to Seamus Martin on ‘Tipp Today’ about the voice of the child & the new Children and Family Relationships Act.
Listen to Gillian’s discussion:
[soundcloud id=’200780610′]The Children and Family Relationships Act was signed into law by President Michael D Higgins on 6th April 2015. Among other important changes, the voice of the child in family disputes has been reinforced by the Act.
In a Family law dispute can the Court hear from the child?
Existing law allows consideration of children’s views. If the Court thinks it appropriate and practicable, having regard to the age and understanding of the child, it will take into account the child’s wishes in the matter.
What age must a child be before a Court will hear from the child?
No specific age exists. This twilight area of when a child is still legally a child but is of an age when his/her wishes need and must be respected causes great difficulty for parents and the Courts. However, I typically find that when a child is 12 years or over a Court will consider his/her views.
Practically how does a Court hear from a child?
Normally the child’s views are heard in chambers i.e. in the judges private office and it is just the judge, the clerk and the child. Typically the parents or lawyers are not present so the child can speak freely without risk of upsetting either parent.
Doesn’t the outcome then depend on the willingness of the child to open up to the judge and/or the empathy of the judge?
It does indeed. Previously there have been talks about specialist training for family law judges in dealing with taking the voice of the child into account. At the moment however it doesn’t appear to be a massive problem in any cases I have dealt with although it could very well be in others.
Does the new Children and Family Relationship Act affect the voice of the child?
It reinforces the concept and allows for children over 12 years to be consulted in a parents application for access, guardianship or custody.
Can you give us a summary of the changes brought by the Act?
The Act clarifies the law on parents rights. It brings the law into the 21st century by extending rights to families in which parents may not be married. For example it gives automatic guardianship rights to non-marital fathers as currently non-marital fathers have no right to guardianship – he must apply to the court and it can depend on the consent of the mother.
The new act means that the father is an automatic guardian if he has lived with the mother for 12 months and at least 3 of these must have been following the birth of the child.
At the moment fathers regularly speak about access being frustrated or denied- how does the Act help this?
The Act includes ways to make parenting work and to have penalties for parents who refuse to comply with access and maintenance orders.
At the moment the only remedy for a breach of a Court order is imprisonment and this doesn’t work in many situations- does the father really want the mother of his child imprisoned- is that in the child’ s best interests?
The Act sets out a procedure for court enforcement orders where a guardian or parent of a child has been held to have unreasonably denied access to a child.
It gives the Court the power to require one party to reimburse the other for expenses in attempting to exercise access, if their access has been frustrated. It also allows for the provision of security to ensure compliance- i.e. a sum of money being paid into Court which will then be forfeited if the access is breached.
What factors will the Court take into account when reaching decisions under this Act if enacted?
The Best Interests of the Child are key!
It has long been the case that the Courts take the best interests of the child into account when dealing with applications on issues that concern them. The new Act makes this principle the cornerstone of any issues affecting children.
Can you give us examples of what “ best interests” means?
Factors which are usually relevant in considering “best interests” can include:
(a) the benefit to the child of having a meaningful relationship with both parents;
(b) the views of the child concerned depending on their age and maturity;
(c) the physical, psychological and emotional needs of the child;
(d) the history of the child’ s upbringing and care, including the nature
of the relationship between the child and each of their parents;
(e) the child’ s religious, spiritual and cultural upbringing and needs;
(f) the child’ s social, intellectual and educational upbringing and needs;
(g) the child’ s age and any special characteristics;
(h) any harm which the child suffered or is at risk of suffering.
Does the Act try to promote or suggest that parties resolve matters outside of Court?
The Act certainly seeks to promote mediation as a way of resolving issues around children and mandates solicitors to advise their clients of these options before taking legal proceedings.
Mediation is the process where the two parties, with the help of an independent third party, meet (usually with their solicitors) and try to agree how to separate. This is done with the help of professional mediator. This is a much more preferable option than going to court and the costs associated with court.
When will this become law?
It was signed into law by President Michael D Higgins on 6 April 2015 and will be commenced shortly and presumably before the next referendum in May.
