Lift the lid on family court system to help mothers, children — and fathers

I WAS severely taken to task by a Mr Matt Harper, in a letter to the editor, over the article I wrote here last week.

He accused me of a man-hating rant, and went on to say that I was scapegoating fathers.

I hope I haven’t taken anything he said out of context, but I’ll paraphrase his letter, because otherwise I’d be quoting him quoting me, and I would end up totally confused by all the different quotation marks I’d have to use.

Mr Harper said that I had attacked Kevin Myers and John Waters for scapegoating single mothers, but that in the process I had done precisely the same thing to fathers. I had suggested in the piece that fathers, rather than being driven away from home, were evading their responsibilities and that they should be chased by the state.

Mr Harper is right. I re-read the piece when I saw his letter, and I realise that I was guilty of a sweeping statement in respect of absent fathers. Given that I was critical of the other aforementioned columnists for their sweeping statements, I should have been more careful in my own language. I didn’t in any sense mean to imply that every father who is not involved with his family, and with the raising of his children, has abandoned them by choice, or indeed has abandoned them at all. I am only too aware of situations where fathers have struggled for years to maintain relationships with their children, and have been prevented from doing so by court orders.

However, Mr Harper then goes on to make a couple of sweeping statements of his own. “Court lists throughout the country are filled with thousands of cases concerning custody and access to children,” he says. “Virtually every single case involves a father fighting against the odds to maintain a meaningful relationship with his children and a mother doing all she can to destroy or diminish his fatherhood.”

And he ends his letter by saying that I would do more for the welfare of children if, instead of perpetuating the “feckless father/martyr mother” stereotype, I advocated a new legal and societal regime in which fathers and mothers enjoyed equality and parity of esteem. “This would, of course, be resisted by the malignant family law industry which survives and thrives by inciting and exploiting hatred between parents,” he concludes. Underlying the hyperbole in this couple of sentences is a really serious and fundamental point. I think Mr Harper is grossly exaggerating in what he says, and I suspect his sentiments reflect a bad personal experience. But you know what? I can’t contradict him. I can’t prove that he’s wrong. I know a lot of family lawyers, and there is simply no way that the ones I know could ever be described as forming part of a malignant industry that exists to exploit the unhappiness of others.

But every single time I have written about this subject over the years I have been attacked, from one side or the other. There are two reasons for that.

The first is that people involved in these situations are frequently really badly hurt by them. They may be, in many cases, the victims of injustice. They may be victims of a conspiracy. I have known many fathers who feel that way, and many mothers too. I have known fathers who have been prevented from seeing the children they love on Christmas Day. And I have known mothers who live in terror when their children are in their father’s custody, because of the fear of abuse. These all seem to me to be situations where justice is one thing, the law another, and common humanity gets lost in between.

But how am I to know — how is anyone to know? Because the second reason, it seems to me, that so much pain is caused in these legal situations is because of the secrecy with which they are conducted. We simply don’t know with any certainty whether the courts and the legal system are unfair to mothers or to fathers. All we know for sure is that many mothers and fathers carry deep scars from their experiences of the family law system in Ireland. Whatever the rights and wrongs, that fact in itself surely reflects badly on the system.

Some years ago the highly respected journalist Carol Coulter wrote a report on the system, having been granted access to a large number of court sittings dealing with a variety of different cases. In her report she said that neither she nor other members of the reporting panel had “seen evidence of systematic bias against fathers or anyone else in the courts, though this is not to say that some individual decisions have not been informed by the individual life experience of the judge which may have been very different from that of the person appearing before him or her.”

She did find a great deal wrong with the system — a great deal that impacted on lower income men in particular — but in her view that wasn’t the fault of the courts, but of the lack of supports available (free legal aid, for instance) for people in trouble. Carol Coulter made extensive recommendations about better reporting of what goes on in the Family Courts, and these recommendations were subsequently endorsed by a committee chaired by the President of the High Court, Nicholas Kearns. But it hasn’t led to more openness, and it hasn’t dispelled the suspicion (amounting to certainty in the eyes of some) that men are routinely and viciously discriminated against in the family law system.

There has been some change. For example, it is now possible to find on the courts’ website a fairly regular publication called Family Law Matters, which reports individual cases in a pretty readable way. Again, if you read them, it isn’t possible to detect bias — but of course they are produced within the system, and can’t be described as totally independent of it.

The reason for the secrecy, of course, is to protect the children involved by protecting their identities. The irony is that the excessive secrecy attached to this aspect of the law may well be damaging to the interests of children, because it prevents the wider society from reaching a well-based conclusion about where unfairness lies.

In his letter to the editor, Mr Harper advocated “a new legal and societal regime in which fathers and mothers enjoyed equality and parity of esteem”. I’d go along with that — except that I think he forgot one ingredient. If the system is to be fair, and seen to be fair, it has to treat fathers, mothers, and their children with equal respect.

Maybe it’s fair, maybe it isn’t. The only way we’re ever going to know is by a much more vigorous challenge to the secrecy of the system. Of course people must continue to have their individual privacy protected in these agonising situations. But we’ll never fix the problem as long as the entire system operates behind a veil of complete silence. Letting sufficient light in so we can all see where the truth lies is an essential and long overdue reform.