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Parents' focus on 'winning' custody battles is harming Irish children

An Oireachtas committee will today hear from various interest groups about proposals to reform the family law system.

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IRELAND’S FAMILY LAW system is creating a situation where parents can be more focused on winning than on what their children want, an Oireachtas committee will hear today.

The Justice Committee will continue this morning to hear submissions on reforms to Ireland’s family law system, including recommendations from Special Rapporteur on Child Protection Dr Geoffrey Shannon.

Shannon will tell the committee that the common law adversarial system is “highly unsuited” for these types of case as “parents are focused on winning”.

This can be psychologically damaging for both the parents and their children, according to Shannon.

The binary nature of family processes is also problematic for complex family situations. Children state that it is very important to them to have flexibility built-in to arrangements so that children themselves can seek to change them if they wish. However, children are frequently unable to secure changes to private law arrangements, or to timelines imposed by the courts.

Shannon will tell the committee that mediation is one arena in which there is potential for greater flexibility in family law as the attention of parents is more likely to be on children’s needs. 

The committee will also hear from representatives from Men’s Voices Ireland who will tell TDs and Senators that children may be “used as pawns in custody battles”.

Joint custody in a real 50:50 sense occurs in only about 1% of cases. We believe that breach of access orders should be dealt with firmly with sanctions imposed as they currently are not.

“Outcomes in the family courts are bad for men and this is well attested. Too often it is a winner-takes-all situation in which the man is removed from the home, may still have to pay maintenance and/or a mortgage as well as provide for himself,” according to the group. 

Members will hear from David Walsh that the rights of children are being lost “in the tussle between competing parental rights”. 

“Current practice puts the adult at centre stage whereas the child’s welfare should be paramount and his/her fundamental right to know and spend time with both parents.”

Walsh will also tell the committee that mediation is needed in cases where domestic violence is alleged as these allegations do “not need to be proved beyond a reasonable doubt in a civil court”. 

Legal representation

Last week the committee heard from Dr Carol Coulter, director of the Child Care Law Reporting Project, about an imbalance created by the legal aid system. 

She said some fathers are just above the limited threshold and cannot afford to pay for legal representation themselves. 

“It is strictly means tested and a situation often arose where a working father earning a modest wage was above the means threshold for legal aid while his wife, if she was a mother, would typically not be working or working part-time, and would fall under the means threshold.

“Therefore if the relationship broke down she would be eligible for legal aid but he would not. That gives rise to an inequality of arms in legal proceedings and is clearly unfair.”

Coulter suggested removing or significantly increasing the means threshold while asking for a contribution from litigants. 

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