Presentation made at the: Council of Europe mid-term evaluation of the Strategy for the Rights of the Child (2016-2021) High level conference ...

Presentation made at the:
Council of Europe mid-term evaluation
    of the Strategy for the Rights
       of the Child (2016-2021)

       High level conference
  Strasbourg 13-14 November 2019

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Council of Europe Ad hoc Committee for the Rights of the Child Conference on
   the Mid-term evaluation on the Strategy for the Rights of the Child (2016-
                                      2021)
09:00 – 10:30 Power Talk 7 – The power of family relations: respecting the
               best interests of the child in divorce and separation
          Dr Louise Crowley, School of Law, University College Cork

The context of separation and divorce proceedings is primarily a private law

dispute between 2 adults and represents a uniquely challenging environment

when it comes to hearing the voice of the child and asserting the child’s rights

– given that the main protagonists are the separating spouses and the

traditional approach has been to create frameworks which allow them to

resolve matters, to allow them to survive (financially and otherwise) post

separation or divorce.

The needs of the children tend to inform that inter-adult conversation but

have not traditionally been regarded as an independent priority. Rather the

emphasis has been on making provision for the parties, whether calculated on

a presumption of equal sharing or broader principles of fairness and justice.

The growing emphasis on private ordering to respect the autonomy and

decision-making capacity of the family unit also serves to side-line the role and

voice of the child favouring a less interventionist approach. What is necessary

is the reframing of the structure and adjudication frameworks, including

judicial led determinations and negotiation processes, to better position – and

ideally centralise - the rights and needs of children, to ensure that children’s

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needs become the central focus and that the inter adult arrangements, in

terms of both and outcomes, operate to prioritise the needs and voice of the

child. Yesterday at the first plenary session, Madame Pasquier, president of the

parliamentary assembly stressed the importance of recognising children as full

rights holders, and this important statement must underscore the

development and application of all laws that impact upon children. This is

especially important where there is significant acrimony between the parents

giving rise to enhanced risk for the child. In the context of marital disputes we

must create laws and frameworks which give capacity to the court to recognise

a threat or danger to the best interest of the child.

Against this backdrop I will look at the following key issues.

    Challenge of private law context

    Silencing of the child in private settlement processes

    Tension between conflicting rights

    Custody and Access – whose right is it – parent or child?

An examination of these key issues will be followed by a brief commentary on

current approaches in Ireland – highlighting the minimising of the child in

determining orders on divorce and separation, and more positively, the mixed

success of our recently Constitutionally imbedded rights of a child to be heard

and best interest prioritised in all related proceedings.

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 Challenge of private law context

Where a state application is made to remove a child from the home, it is very

much regarded as a public law matter, and it is significantly more likely that an

independent report, representing the needs and/or voice of the child will be

mandated by the court, introducing an objective view additional to those

expressed by each of the parents. This approach can centralise the needs of

the child, ideally prioritising them above the needs of the parents.

Unfortunately, it can be much less likely to arise in marital disputes where the

focal point can be the rights and claims of the 2 adults in question and an

underlying protection of the autonomy of the family in that private law sphere.

The financial and accommodation needs of children, and their custody and

access arrangements more typically form part of a larger inter adult settlement

package, and the consequences for children can be a secondary focus of the

parties and indeed the process. The reality is that despite legislative regulatory

frameworks to govern the breakdown process, separation and divorce

proceedings remain primarily a private law matter, where once certain criteria

are achieved, such as equal division or a fair outcome, or proper provision in

the circumstances, the manner in which these end goals are achieved is often

determined by the parties, and state interference is avoided where an

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amicable agreement can be privately reached. Such private agreement can be

very positive - The Irish law reform Commission has noted the inherent

unsuitability of adversarial litigation to resolve family law disputes, especially

involving children who become embroiled in this confrontational approach,

and it advocates that such cases should seek to avoid court proceedings and

maximise use of more conciliatory approaches. Further related Irish research

demonstrates that shared parenting arrangements are much more likely to

result from negotiations rather than court orders. However whilst such

approaches are be applauded for removing acrimony, facilitating conciliatory

discussion and greater likelihood of compliance into the future, the very

process gives them latitude to resolve the issues as suits the adults best, both

financially and in terms of the allocation of child rearing and caring

responsibilities, without any expectation of an objective analysis of the best

outcomes for the children of the union. Private agreement can mask inter

spousal acrimony that impacts upon the welfare of the child and without ne

party highlighting a threat, there may be no impetus for the court to

interrogate the impact of the agreement on the children who are not

represented in divorce and separation proceedings.

    Silencing of the child in private settlement processes

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This perception of separation and divorce as a private law matter is

compounded by the growing impetus for the recognition of private ordering

and the courts’ preference for mediation and lawyer led negotiations, to

reduce court waiting lists, speed up the resolution process and to move parties

away from adversarial processes. Simultaneously, despite much research into

the positive impact and importance of child inclusive mediation, there remains

a reluctance to impose such an added dimension to the mediation process.

Certainly, the Irish Mediation Act 2017 does not identify the child as a rights

holder in encouraging this dispute resolution approach.

What is necessary is a reframing of both governing frameworks and practices

on separation and divorce, to reposition the best interest of the child centrally

in the adjudication process and thereby to recognise and reinforce children’s

rights.

    Custody and Access – whose right is it – parent or child?

As regards the challenging issues of custody and access on divorce or

separation, conflicts can arise between a custodian parent who seeks to limit

access on the basis of a perceived best interests of the child, the right claimed

by the other parent to be allowed to maintain a meaningful relationship with

the child, and thirdly, the right of the child to be heard in relation to his/her

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distinct preference and best interests. In this context, a threat to the child’s

wellbeing and long-term welfare can only be interrogated when it is brought to

the attention of the courts. In divorce proceedings it is the spouses who are

before the court so hearing the voice of the child requires intervention, and

this can be thwarted in 3 ways; where the court is convinced by any inter parte

settlement and defers to the autonomy of the family, where the court fails to

exercise discretion to order a report and thirdly where a national framework

places the financial burden for such a report on the parents. Limitations in

respect of the funding of independent reports, the absence of adequate or any

judicial training and fundamental time constraints in family law courts can also

operate to prevent the court from being able to make an informed decision,

when faced with very conflicting parental views. The challenge is thus to create

a robustly crafted governing process to guide the court in its adjudication

process, that allows the circumstances of each application to be adequately

explored centralising the needs of the child, ensuring capacity to determine

best interests through hearing the child directly or through the mandatory

appointment of an independent expert.

    Abusive domestic settings – child as victim and witness

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Any governing framework that regulates divorce and separation must

incorporate an Inherent capacity to effectively identify and address the

presence of domestic abuse in the familial setting, something that is easily said

but much more difficult to achieve. Negotiated settlements in such instances

must be cautiously considered.

Lawmakers must equally be cautious when enacting presumptive starting

points of joint custody or shared parenting roles, and must retain a judicial

capacity to examine the individual circumstances of each family setting

(directly or more likely supported by relevant experts), and demonstrate a

willingness to weigh up the importance of a child having a relationship with

both parents, against the capacity to recognise the dangers arising for a child

where giving effect to that presumption puts the child in danger. It has been

suggested that courts must be imaginative and pragmatic in such

circumstances – an access application must not be regarded as a win or lose

situation – what may be necessitated in the child’s best interest could be a

short term pausing of the application – where the court, taking a trauma

informed approach, in the broader relationship breakdown context – might

recognise that automatic access with both parents might not be the best

immediate order but equally that no such arrangements are forever, and here

language is crucial. Above all every child has the right to be protected from

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harm irrespective of the source, so governing State frameworks and processes

must acknowledge the tensions that exist in families going through separation

or divorce, and ensure that robust systems exist to hear the child, to provide a

forum to explore any threats to the child’s wellbeing and in positioning the

child as the fundamental priority in all determinations on separation and

divorce, require the courts to acknowledge the primacy of the child’s rights

over and above any claimed “rights” to access and custody that parents may

seek to assert. Judicial training is incredibly important in this context, as are

specialised family court systems to ensure that member states develop and

maintain best practice in protecting vulnerable children.

IRELAND

Separation and divorce proceedings in Ireland require judicial satisfaction that

proper provision has been made for both spouses and any dependent children,

and thus whilst private settlement and mediation is very much encouraged,

and supported by the free Family Mediation service, every settlement is

subject to court approval. However, what constitutes proper provision has

been given a distinctly financial interpretation by the Courts and the position

of children is not independently prioritised in the 12 statutory factors to which

the court must have regard.

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More positively, in making a judicial determination in a contested custody or

access case, since a 2012 Constitutional referendum, the court must regard the

best interests of the child as the paramount consideration, and any child who

is capable of forming his or her own views, should have their views ascertained

and given due weight having regard to the age and maturity of the child.

However, in marital dispute cases, unless the parents are willing to pay for

securing a private report on the child’s best interests, it become very difficult

for the court to be adequately informed. It is often inappropriate for a child to

give direct evidence, and as Ireland does not have a specialised or dedicated

family law system our judges can also lack relevant experience and training.

Thus, in practice, the mechanics of giving effect to these rights can let down

the aspirations of the governing framework. Interestingly, last month a cross

party committee called for the establishment of a specialised family and

children’s court system in Ireland, noting this as an existing recommendation

of the Council of Europe guidelines. Currently, most private family law and

child care proceedings are held alongside criminal and other civil cases, family

and child law cases in Ireland are heard by judges from the general courts

system who are not required to have specialist training or experience in family

law matters.

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Conclusion

Marital breakdown disputes inevitably give rise to tensions as the parties seek

to outdo each other’s position. In pitting them against each other both sides

are seeking a “win” and the child too often becomes the prize in that battle.

In creating frameworks within which such litigants operate we must ensure

they are developed with reference to the following 2 Council of Europe

priorities from the Strategy for the Rights of the Child:

   - Participation for all children

   - Child friendly justice for all

What we need to uncover is

   1. what ought the governing legal framework look like in order to

      centralise the child in all aspects of divorce and separation resolution?

   2. What does child participation look like both in law and in practice?

   3. How can we better inform children of their rights including their right to

      participate – access to justice must start with access to information.

   4. Ultimately for all of us here today, how can the Council of Europe

      support member states achieve child friendly laws and processes, noting

      that creating child friendly laws and principles is only the first step, they

      must also be effective in practice with State commitment to create

      guidelines outlining best practice to bring about more uniformity and

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precision of recognition of children’s rights, and to support these aims,

provide appropriate resources and stakeholder training, to include the

judiciary and members of the front-line services such as police, lawyers,

support services and social workers.

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