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'The Irish Social Worker' - The Children and Family Relationships Act 2015, a critique.

While Ireland still grapples with a litany of historical failures in respect of children; professionals, policy makers, and legislators have recognised the need for policy and law that concerns children to be in a consistent state of evolution. This is recognised as crucial to account for evolving societal norms, growing research with respect to childhood experiences, as well as the archaic nature of much of Irish legislation and policy. Consequently, it could be interpreted that any policy or legislative shift is conducive to Ireland making positive strides in enhancing the rights of children, advocating for positive childhood experiences, as well as developing policy and legislation that is more in line with the contemporary realities of Irish families, where children are born to non-married parents much more frequently. Notwithstanding this however, it is crucial that we are cognisant of the need to remain objective when examining any and all perceived ‘advancements’ in policy and legislation, in order that advancements are realities rather than perceptions.

While there is little doubt that the ‘The Children and Family Relationships Act 2015’ was ground-breaking in an Irish context, this article will argue that there are elements of the Act which are out of line with comparatively modernised legislation. With a view to identifying and exploring anomalies within the Act, the ensuing article will outline four of the fundamental elements of the Act, and then critique two of these elements more rigorously. By critiquing two aspects of the Act, it is my aim to highlight how an overall progressive Act like the aforementioned ‘Children and Family Relationships Act 2015’, is not the finished article, and how advancements could be made to bring it further into line with legislation that puts the child at the centre of all family law considerations.

What’s Changed?
1. The Child’s Best Interests

When commenting on the then impending introduction of the 2015 Act, Keogh (2014: 1) outlined how “the Children and Family Relationships Bill 2015 (hereinafter “the Bill”) promises to bring child centred reform to family law in Ireland which will address the needs of children living in modern families”. In one of their key comments on the 2015 Act, The Department of Justice and Equality stated that the 2015 Act itself was enacted in order to legislatively “establish that the best interests of the child are paramount in decisions on custody, guardianship and access” Department of Justice and Equality (2015). Consequently, this ‘best interests’ principle transgresses all of the key elements of the 2015 Act itself, and therein can be viewed as the key change brought about by the introduction of this modernised legislation.

Accounting for the ‘best interests’ or ‘welfare’ of a child in Irish legislation is not entirely a new phenomenon; “the Guardianship of Infants Act 1964, the Adoption Act 2010 and the Child and Family Agency Act 2013” Children’s Rights Alliance (2013), all make reference to these ‘interests’. However, what marks the 2015 Act out as progressive is the fact that these ‘best interests’ are defined in law, and statutory criteria are available for use in family law cases. The ‘best interests’ paradigm covers eleven key areas, which are collectively seen as essential elements in the protection of a child’s present and future well-being. Furthermore, this ‘best interests’ framework further compounds the provision set out in Article 42A.1 of the Irish Constitution (1937: 170), for the state to respect the “natural and imprescriptible” rights of a child.

2. Child’s Views

In line with the ‘best interests’ principle, the 2015 Act legislatively provided for a child’s views to be heard in any proceedings concerning guardianship, custody or access. In doing so, the court is to have regard for the voice, and subsequent wishes of the child, while also taking into account the age and maturity of said child. Furthermore, while the ‘Family Law Act 1995’ permitted the High Court to “procure a report on any question affecting the welfare of a party to the proceedings, including children” Cronin (2016: 4), there was no legislative provision that allowed a District Court to apply for such an expert in family law cases before them. Following the enactment of the 2015 Act, it is now within a District Court’s remit, to procure an expert report on the views of any child involved in proceedings related to guardianship, custody or access before it.

3. Guardianship

Part IV of the 2015 Act makes specific changes to ‘The Guardianship of Infants Act 1964’, hereafter referred to as the ‘1964 Act’. There are four key updates to the 1964 Act; namely around automatic guardianship, non-parental guardianship, qualifying guardians and third party guardians and their rights. With respect to the granting of automatic guardianship, the 2015 Act dramatically “expands on the number of situations where automatic guardianship can be granted” Keogh (2016). Section 6C allows the court to appoint a non-parental guardian. In these deliberations, there are certain criteria around the proposed guardian’s relationship with a parent of the child, or the day-to-day care of the child, which must be satisfied. Furthermore, there are other considerations that must be taken into account when making a verdict; most notably the Child and Family Agency’s viewpoint, as well as the approval of all the child’s existing guardians.

4. Custody & Access

The 2015 Act greatly expanded the contingent of individuals that can apply for access with a child. Most notably, access can now be applied for, and granted, in the case of “a person with whom the child resides where the person is or was married to, or is a civil partner, or has been cohabiting with the parent of the child and has for two or more years shared parental responsibility for the child’s day-to-day care” Keogh (2014: 8). Furthermore, in the absence of a parent or guardian, non familial individuals can apply for custody and/or access if they have provided for the day-to-day care of the child in question for twelve months or more. Finally, the court is also now permitted to hear applications for joint custody from persons who are both relatives, and/or have invested in the day-to-day care of the child, as set out above. In all deliberations, the court must take account of the ‘best interests’ of the child.

What needs to Change?
1. Section V and the ‘Best Interests’ Paradigm

Commenting on the principle of ‘best interests’ in relation to children, Mnookin et al (1983: 8) stated that “the flaw is that what is best for any child or even children in general is often indeterminate and speculative and requires a highly individualized choice between alternatives”. Up until the enactment of the 2015 Act, this was the criticism aimed at the principle of ‘best interests’ in an Irish legislative context; it was overly ambiguous and had no defined basis in law. Consequently, the creation of eleven specific criteria of ‘best interests’, to provide the judiciary with a specific set of guidelines when presiding over cases that involve children, was long overdue. That being said, there remain inherent flaws within the construct of the ‘best interests’ paradigm in the 2015 Act.

One of the key issues with the eleven ‘best interests’ criteria, as set out in the 2015 Act, is that “none of these factors are stated as having priority” Shannon (2016: 22). As the collective influence of the eleven factors are so significant, yet equally so broad, it still leaves interpretation of what constitutes the ‘best interests’ of a child overly ambiguous. When commenting on the concept of ‘best interests’ McPartland (2013: 122) noted; “the word ‘interests’ is plural but the word ‘child’ is singular”. While this distinction is important with respect to placing the ‘best interests’ paradigm into the context of individual children’s lives, it could be argued that this could have negative outcomes for children. For example, by not giving more weight to the “physical, psychological and emotional needs” of a child over the “religious, spiritual, cultural and linguistic upbringing” Government of Ireland (2015: 60), of that child, is the 2015 Act giving equal, or even more regard, to the rights and desires of parents than it is to the tangible rights of a child? This ambiguity “risks inconsistency and unpredictability” Shannon (2016: 18), and the breath of unweighted ‘best interests’ leaves courts open to give precedent to pre-existing judgements of what constitutes a prevailing ‘best interest’.

Furthermore, there remains inconclusive elements around the consideration given to ‘best interests’ when it comes to domestic violence. While section 63 of the 2015 Act is clear, in that it requires “the court to have regard to any ‘household violence’ in determining the child’s best interests” Shannon (2016: 23), the proofs regarding such violence are not well-defined. Shannon (2016: 24) comments; “The English jurisprudence, and in particular the case of Re L, suggests that there is not, and should not be a presumption that on proof of domestic violence, the offending parent must surmount a prima facie barrier of no contact”. Once more, by not providing for specific weighting in the cases of domestic violence, and the complexities of family law cases which include domestic violence put before family court, the 2015 Act allows the judiciary a surplus of influence in what determines a child’s ‘best interests’ when faced with family law cases that include domestic violence.

2. Guardianship

While the overall consensus is that the 2015 Act made significantly positive changes to 1964 Act, there remains one contentious section within the 2015 Act. While the automatic guardianship prerequisite existed in the 1964 Act, its construct was based on the premise that all fathers and mothers were married couples, and so only provided for automatic guardianship in the cases of married couples. In the case of unmarried parents, automatic guardianship was only granted to the mother, and fathers had to apply through the courts to be granted guardianship rights. The 2015 Act makes some significant and welcome changes in that regard; automatic guardianship can now be granted to fathers who can prove that they cohabited with the child’s mother for twelve consecutive months, which must include at least three months subsequent to the birth of the child. While any advancement in the law around equal rights for mothers and fathers are welcome, there are some significant issues that still remain following the enactment of this specific section.

Firstly, while the 2015 Act outlines that there is a burden of proof put upon the father with respect to proof of cohabitation, there are no specific criteria set out with respect to the weight of proof required. Consequently, unless agreement regarding guardianship is reached between the mother and father, the court puts upon the father an obligation to prove, before being given legal rights around his involvement in important aspects of a child’s upbringing. This particular form of automatic guardianship is almost unique in an international context; in Northern Ireland, Britain, Australia and in many European countries automatic guardianship is there to be revoked rather than granted to fathers. Reflecting on this against the context of the ‘New Zealand Care of Children Act 2004’, The Law Reform Commission (2009: 60-61) “provisionally concluded that a statutory presumption that a non-marital father be granted an order for guardianship/parental responsibility should be introduced, unless to do so would be contrary to the best interests of the child or would jeopardise the welfare of the child”. Furthermore, as far back as 1982, the Law Reform commission outlined how a legal relationship should automatically exist between a parent and child, commenting that any other approach “approach would offend against the principle of equality”; furthermore, they outlined how this relationship “should not be subject to any exceptions or prior conditions”.

This approach to automatic guardianship rights appears somewhat at odds with the overall philosophy of the Act which remains rigorously child centred. In commenting on children’s rights within the family unit, Kilkelly (2008: 8) noted how the UN Convention on the rights of the child outlined how “the best interests must be a primary consideration in all actions concerning the child”. In his commentary on the 2015 Act, Shannon (2016: 17) noted; “among the most fundamental rights of the child is the right to have his or her best interests regarded as a paramount consideration in any decision affecting him or her”. However, the position of Section 49 of the 2015 Act is to place the full weight of proof of co-habitation, over what is in the child’s best interests, as a deciding factor on the provision of automatic guardianship for a father. This hasn’t gone unnoticed. Commenting on the 2015 Act, the Irish Human Rights and Equality Commission (2015: 11) noted both the unequal way in which men were being treated in law, as well as the fact that the ‘best interests’ principle which transgressed the rest of the Act, was subservient to other considerations in the context of automatic guardianship; “the Law Reform Commission considered the application of two principles in this field: (a) the rights and best interests of the child and (b) equality, in particular in relation to gender and marital status”. Shannon (2016: 59) remarked on the Law Reform Commission’s recommendation in this regard; “The Commission also recommended that there be a clear record of those with paternal responsibility for children and concluded that automatic parental responsibility be linked to compulsory joint registration of the birth of a child”. Furthermore, by not giving adequate consideration to the existence of non co-habiting parents, it is clear that this prerequisite flies in the face of the need for legislation to respect family life, under Article 8 of the European Court of Human Rights.

Conclusion 

The emergence of more diverse family structures within Ireland ensured the Irish legislator had no option but to provide for “a much more comprehensive review of family law in Ireland” Keogh (2015: 3). While the enactment of the one hundred and eight sections within the 2015 Act have been an overwhelmingly positive development in the recognition of the diversity of contemporary family structures, there are a small, yet significant, number of issues that remain. As Irish family law attempts to mark itself out as child-centred, consistent with contemporary realities, and a purveyor of egalitarian ‘justice’, it cannot ignore the flaws that remain in the 2015 Act. In an age where fatherhood is recognised as more wide-ranging and holistic, it is incomprehensible that family law would discriminate against parents on the basis of gender. Moving forward, automatic rights to legal guardianship can, and must be provided for, as amendments to the 2015 Act. This move will not only provide for equality in law, but also will ensure that a child’s right to be ‘provided for’ by both parents will be cemented in legislation. This could be seen as a bridging between the rights and responsibilities of both parents, irrespective of gender. Perhaps more fundamentally than this however, is the need to grade the importance of the eleven criteria around ‘best interests’ of the child. While there is a recognition that contemporary societies consist of a vast array of cultural and societal norms around parenting, there needs to be consistency and certainty in how Irish society views the ‘best interests’ of all her children.

Originally appeared in Spring 2018 edition of 'The Irish Social Worker' 

  Bibliography 
  1. Children’s’ Rights Alliance (2015) Briefing note on the Children and Family Relationships Bill 2015 [Internet] Available at: http://childrensrights.ie/sites/default/files/information_sheets/files/CFRBillBriefingNote0315_0.pdf Accessed on 13/03/17. 
  2. Cronin. B. (2016) ‘Children and Family Relationship Act 2015: review of certain commenced provisions’; The Irish Social Worker. 
  3. Government of Ireland (1937) Constitution of Ireland. Dublin. Stationery Office. 
  4. Government of Ireland (2015) The Child and Family Relationships Act. Dublin. Stationery Office.
  5. Keogh. L. (2014) The Children and Family Relationships Bill 2015 – An Overview [Internet] Available at: https://www.lawlibrary.ie/media/lawlibrary/media/Secure/20150309ChildrenAndFamilyRelationshipBill2014Keogh.pdf Accessed on 13/03/17. 
  6. Keogh. L. (2016) From Goldilocks to the Seven Dwarfs – the children and family relationships Act, 2015: A Guide to 21st Century Family Law [Internet] Available at: http://www.southdublincollaborativelawyers.ie/from-goldilocks-to-the-seven-dwarfs-the-children-and-family-relationships-act-2015-a-guide-to-21st-century-family-law Accessed on 13/03/17.
  7. Kilkelly. U. (2008) Children’s Rights and the Family: Myth and Reality. Studies: An Irish Quarterly Review Vol 97 (385). 
  8. Law Reform Commission (1982) Report on illegitimacy Ireland [Internet] Available at http://www.lawreform.ie/_fileupload/Reports/rIllegitimacy.htm Accessed on 16/03/17. 
  9. Law Reform Commission (2009) Legal Aspects of Family Relationships. Dublin. 
  10. Law Reform Commission. McPartland. E. (2013) The Best Interests of the Child 2nd Edition. Dublin. Gill & Macmillan. 
  11. Mnookin. R. H., Szwed. E. (1983) The Best Interest Syndrome as the Allocation of Power in Child Care; Providing Civil Justice for the Child. London. Edward Arnold. 
  12. Shannon. G. (2016) Children and Family Relationships Law in Ireland. Dublin. Clarus. 
  13. The Department of Justice and Equality (2015) Children and Family Relationships Act 2015 [Internet] Available at: http://www.justice.ie/en/JELR/Pages/WP15000315 Accessed on 13/03/17.

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