Children invisible in an adult-dominated family law process

More reform of family law and the family courts is essential if the Children and Family Relationships Bill is to deliver justice, writes Professor Ursula Kilkelly.

THE Children and Family Relationships Bill 2015 has been welcomed in broad terms as a positive step in the reform of Ireland’s antiquated family laws.

From a children’s rights perspective, it is significant that the bill recognises that respect for the family requires giving such relationships legal protection. It is progressive that following the enactment of the bill, legal protection can be offered not just to the traditional family, but to the rich diversity of family relationships that are part of children’s lived experiences.

For example, the bill provides for a parent’s spouse or civil partner to acquire guardianship, meaning that on a practical level those who care for children will have the legal authority to take decisions around their upbringing.

Similarly, the bill enables a relative to apply for custody of a child in certain circumstances and grandparents and other relatives will be able to secure access to children more easily where the parental relationship has broken down. Although we are still awaiting a full legislative framework for assisted human reproduction (AHR) including surrogacy, the bill provides that a birth mother’s partner can become the child’s second parent if he/she consented to the AHR treatment but only if the treatment was carried out in a clinical setting (thereby avoiding arrangements involving anonymous gamete donation) and the donor clearly consented to being a donor rather than a parent. In this regard, the bill takes an important step towards recognising the right of the child to know his/her genetic parents.

But there is still some way to go to guarantee the child’s right to identity in Irish law both for future children and for those deprived of this identity in the past. These provisions are very welcome but the bill hardly enables Ireland to keep pace with modern family law as it has advanced in other jurisdictions. The bill retains the adult-focused concepts of custody (with its connotations of ownership) and access (with notions of gate keeping) rather than making provision for the child’s residence and contact with family members, as is the approach in many other jurisdictions.

Similarly, Irish law remains silent on “parental responsibility” and does little to outline the expectations that those who acquire rights of guardianship should exercise them in line with the child’s rights and interests. The fact that the decision was made to amend multiple pieces of legislation instead of establishing a new child law instrument bringing all of these provisions together means the law will be difficult to navigate and understand for those affected by its provisions.

The bill makes advances by placing on a statutory basis the requirement that the best interests of the child are to be the paramount consideration in private family law matters of guardianship, custody, and access.

The best interests principle can be criticised for its vague and subjective nature so it is welcome the bill requires the court to have regard to all of the relevant factors in its determination of the child’s best interests. Among the non-exhaustive list of 11 factors for the court’s attention are the child’s needs, the nature of the relationship between the child’s parents and carers,and any harm which the child has suffered or is at risk of suffering, including violence.

According to the bill, decision- making as to the child’s best interests must take into account the child’s views and the court must facilitate the free expression by the child of those views. To this end, the court may appoint an expert to determine and convey the child’s views (notably the term guardian ad litem is not used) and although guidance is offered as to the circumstances in which such an appointment may be made, this remains at the discretion of the court. In that sense, the bill does little to really advance Irish law on ensuring children have a say in matters that affect them, as is required under the Convention on the Rights of the Child.

Enshrining children’s rights principles in the law is important of itself and more informed decision- making from the courts should have a positive impact on children’s lives. The fact remains, however, that much more widespread reform of family law and the family courts system is essential if the bill is to deliver justice to children and their families. In this respect, one of the most important provisions in the bill is the requirement that the court have regard to the general principle that unreasonable delay in determining the proceedings may be contrary to the best interests of the child. Translated into a duty to expedite children’s proceedings, this has real potential to ensure that family law cases remain firmly focused on the interests of children affected.

Child-friendly justice requires that decisions made about children are not made without their participation.

It is disappointing therefore that the bill does not establish the right of the child to express their views to the court, directly or indirectly. Without the right to separate legal representation for children, they will continue to be the invisible parties in an adult-dominated family law process.

• Professor Ursula Kilkelly is dean of the school of law at University College Cork where she is director of the Child Law Clinic