Ireland moves forward

Posted on July 14, 2012 by

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In matters of social awareness and social legislation (typically divorce and child custody etc), Southern Ireland has more often than not taken its cue from Great Britain.

Ireland’s Ministry for Children and Youth Affairs (OMCYA), is following the lead set by his British counterpart, Tim Loughton MP, the UK’s Minister for Children.

Tim Loughton and the new government are trying to rewrite custody law so that fathers are not so comprehensively excluded from their children’s lives.

The issues surrounding post-separation parenting in modern Ireland are addressed in a report in the “National Children’s Strategy Research Series” (Jan 2011), written by Dr. Evelyn Mahon and Elena Moore. [1]

Under the auspices of Ireland’s Office of the Minister for Children and Youth Affairs their offering has the long-winded title of;

  • “Post-Separation Parenting: A study of separation and divorce agreements made in the Family Law Circuit Courts of Ireland and their implications for parent-child contact and family lives”

The overriding caveat must be that this is an Irish report written by Irish authors abut how Ireland sees itself working efficiently in the world of divorce and custody law. Needless to say, a partisan if not glowing picture emerges.

Nevertheless, it brings a new, enlightened and welcomed approach. Ireland was insulated from modern divorce for many years – it was not introduced into Ireland until Feb 27th 1997 a date that has since proven to be a watershed.

The research paper is all the more timely given the increased worldwide demand for the recognition of fathers’ rights to have more than just simple ‘contact’ with their children. This is a phenomenon created by the perverse application to date of supposedly egalitarian laws.

As the authors point out, Article 18 of the CRC (Convention on the Rights of the Child) states that 1). both parents have common responsibilities for the upbringing of their children and that 2). States should use their best efforts to ensure the recognition of that principle. In the past this has been observed in the breach rather than in the observance. The undeniable fact is that states have disastrously botched attempts to achieve these two goals.

The aim of the study is to investigate post-separation and divorce agreements made in the Family Law Circuit Courts of Ireland and their implications for parent–child contact and family lives. 

Starting point

The Irish view of ranking rights to custody has been more akin to the American doctrine of the ‘tender years’ principle than its British counterpart but the difference is only semantics – the net effect has been the same. Citing the words of Ireland’s Mr. Justice McGuinness the authors conclude that this principle may no longer be valid:

  • ‘I do not entirely accept the old “tender years” principle; modern views and practices of parenting show the virtues of shared parenting and the older principles too often meant the automatic granting of custody to the mother virtually to the exclusion of the father’  [2]

This is a good start. His comments reflect the practice found in the common law principle thatthe physical upbringing of a child of 7 years or younger was best catered for with the mother. [3]  Such a principle coincides with the mother’s unassailable Constitutional right to the guardianship and custody of the child, whereas the natural father has no such innate right. [4] Since a married man has these guardianship and custody rights one has to assume these “natural fathers with no rights” are  ones who are  unmarried to the mother of the child.

If anything this underscores the belief promoted in previous papers (on these blog pages) that in Britain the natural father has not had, since 1991, any such guardianship and/or custody power over his natural child.

By excluding the father, Irish mothers are a child’s legal guardian regardless of  marital status and it has been argued by this author [RW] that in England & Wales the same status applies since the abolition of guardianship is specifically aimed at married fathers in the 1989 Children Act.

By default, in England & Wales where the mother has always been the guardian of her illegitimate child she is now also the sole legal guardian of her legitimate children.
The Irish “tender years” principle chimes with the mother’s ‘Constitutional’ right to the guardianship and custody of the child. The 1937 Irish Constitution, for all its pro-family merits, gave natural, i.e. biological fathers, no such right, guardianship was only to be held jointly between spouses (see above).

Additionally, Section 11 of the 1964 Act (Ireland) makes it clear that where a couple separate an award of ‘joint custody’ (custody to both the father and the mother, jointly), is entirely possible. Therefore, in some regards it was Britain, after 1991, which fell behindIreland. British fathers, married and unmarried were gifted only ‘parental responsibility.’

Had the British adopted the Irish regime of joint guardianship for fathers and mothers rather than replacing it with the pale imitation called ‘parental responsibility’, the course of history and protest would have been changed and probably for the better.

The proprietorial dimension to the concept of guardianship irritates many liberal reformers but without cast iron ownership of rights of any entity, that entity becomes ethereal and a vehicle of transient value. It looses the respect it deserves.

Courts are inherently conservative.  In the previously sacrosanct relationship of parent and children they were instinctively reluctant to move against the parent-child principle, so deeply embedded in our history is guardianship. But outlaw the ownership right and give it a new name and courts become far less inhibited and quite unabashed at interdicting / interceding into the newly conceived contrived replacement, i.e. parental responsibility’.

Joint custody

In Ireland joint custody is taken to mean:

  • “ . . . . a child residing with each parent for a stipulated period of time.”

The key word here is “residing”, not merely visiting or staying overnight as a special treat

Section 11A of the 1964 Act (as inserted by Section 9 of the Status of Children Act, 1987), [Ireland]  states that it is possible even where a couple is separated to award custody to both the father and the mother jointly. Joint custody involves a child residing with each parent for a stipulated period of time.

In Britain the simple to understand term ‘joint custody’ was killed off in 1991 with the enactment of the Children Act 1989. It was replaced by ‘shared residency’ orders. Section 11(4) of the Children Act 1989 provides:

  • ‘Where a residence order is made in favour of two or more persons who do not themselves all live together [divorced father and mother], the order may specify the periods during which the child is to live in the different households concerned.’ [5]

In Ireland, the Guardianship of Infants Act 1964 and the Status of Children Act 1987 (Section 9), states that it is possible even where a couple are separated to award custody to both the father and the mother jointly. An echo of the situation in Britain prior to the CA 1989.

The authors of the Report appear to cite Geoffrey Shannon the most frequently and it is worth noting that they are happy to go along with his definition of  joint custody as:

  •  “involving a child residing with each parent for a stipulated period of time”

Since some pro-father advocates (most of whom were not fathers in the 1980s) have sometimes questioned this definition over the past 10 years, it is an important point to make. [See http://robertwhiston.wordpress.com/2008/02/05/5/ ].

Exploring why Geoffrey Shannon is cited as an authority throughout the report leads leads to the discovery of a privileged portfolio of appointments. He is:

  • an author, a solicitor and a Senior Lecturer in Family and Child Law at the Law Society of Ireland
  • in June 2006, he was appointed by the government to the independent position of Special Rapporteur for Child Protection and has been selected by the European Expert Organising Committee as the Irish expert member of the Commission on European Family Law
  • in Sept 2007, he was appointed by as Chairman of the Adoption Board.
  • he is the editor of the Irish Journal of Family Law and has written extensively on family and child law issues.

This passage taken from the Report regarding joint custody is interesting and has been broken up into its components to assist in understanding and aid clarity:

  • Joint custody can imply different residential arrangements for children. Some couples agree that one parent becomes the primary residential carer, while others share the residential care of the children.
  • Joint legal custody, according to Justice McGuinness, cannot work satisfactorily if there is a high level of conflict (EPcCP, November 1998) or in cases of high degrees of hostility (DFOs v. CA, 20 April 1999).
  • Yet Justice McGuinness actually granted joint custody in one such case because she was fearful that by granting sole custody to one parent, she would add to the bitterness and resentment that already existed (Kilkelly, 2008, p. 128).
  • This view may indeed be shared by many Judges since joint custody is the norm in Irish Family Law Courts.

The Irish Report believes that the competency of both parents is always taken into account but one has to wonder, given that similar claims are made in other English speaking countries, if this can be true given the alarming level of mental ill health and addiction among today’s single mothers.

  • “The Courts have to ensure that in granting guardianship, custody and access, the parent has sufficient parental capacity and is manifestly capable of carrying out these roles. Sometimes severe mental illness, alcoholism or drug addiction can reduce parental capacity and provide grounds for not making a custody order to one or other parent.”

Geoffrey Shannon – which the authors of the Irish report cite heavily – is said to interpret joint custody as it relates to “joint physical custody”, which is not now generally used as a term in Irish Family Law courts. The caveat added by either Shannon or the report’s authors states:

  • “Such arrangements should not be such as ‘to cause a significant disruption to a child’s life: for instance, where one parent lives a significant distance from the school at which the children normally attend”

According to Geoffrey Shannon, joint custody tends to be ‘the exception rather than the rule’ ,  nonetheless it is on the statute book.

One wonders whether like many other academics he has totally overlooked the pre-1989 research by the Law Commission Report No 96 (Supplementary Working Papers), and is aware of the UK Dept of Health’s identical directive – more examples of Ireland lamentably followingBritain’s rather lame lead.

Custodial or “residential” parents

Theoretically, parents in Ireland have to decide together the residential and shared care, if any, arrangements for their children after divorce.

The custodial parent, who is now more commonly called the ‘residential parent’ has traditionally been the mother.

The immediate consequence of this is that she becomes a ‘lone mother’ along with all other divorced mothers in American the UK and most other countries. Whenever and wherever ‘lone mother’ are created they instantly become a drain on the country’s monetary resources.

Euphemisms abound in the social sciences sphere and the following is a typical example:

  • “Parents who are engaged in the emotional turmoil of separation have poorer psychological and physical health. This may reduce their capacity to look after their children” – Lamb, 2007.

This gives the impression that both parents have a choice and come to the decision rationally and after careful deliberation. There are many indications thatdivorce is not a cool headed choice and the ramifications are poorly, if ever, thought through.  

Into this emotional fog of divorce steals stresses and strains never before imagined or experienced. Not only does the capacity of mothers to look after their children decrease but is further reduced by resulting mental illness and instability in a goodly proportion.

Residence arrangements

Ireland has tied itself into the same stupid knot as England & Wales over ‘custody’:

  • “While ‘custody’ is the legal term used inIreland, there is no legal distinction made between ‘legal’ and ‘physical’ custody. There is no statutory definition of the term ‘custody’. While joint legal custody is the norm, we will show thatresidential arrangements for children are a second aspect of separation and divorce arrangements. In Irish Courts, joint custody does not actually tell us about residential arrangements since it is compatible with a number of residential situations, from shared care to monthly access visits by the non-resident parent.”

Fathers Rights Movement

Attention has been focused by the Fathers Rights Movement (FRM) on factors that influence custody decisions. Not least of these is the dominance of maternal custody and its implications for paternal contact with children in the post-separation and divorce scenario.

A series of studies have reinforced the view that’sole mother’ custody was dominant in the USA, Canada, UK and even Sweden, the latter long held up for its more liberalattitudes.

Swedish research, which had a dominant model of joint custody, found that in 1999, 84% of children resided with their mothers. That mightat first sight look disappointing but the key indicator is time sent with their fathers not necessarily residence time.

Several factors have been advanced to explain this dominance by mothers and authorsMahon&Mooresuggest custody outcomes might bee influenced by:

  • the ‘primary caretaker’ rule, which directs the Court to award custody to the parent who was the primary caretaker during the marriage (Atkinson, 1984; Emery, 1994)
  • the ‘child’s preference’ rule, which directs the Court to follow the child’s preference, which applies to older children only (Buehler and Gerard, 1995)
  • the ‘approximation preference’ rule, which directs the Court to arrange post-divorce custody to resemble the pre-divorce or intact family’s living arrangements (Fohlberg, 1991)

However theses excuses have all the gravitas of a fig leaf. None of them really explains what’s going on, and why. The common sense reduction could be said to be that mothers were enabled (paid) to stayathome and did not have to go out to work – unlike fathers.

These examples taken from the Irish report clarify the universality:

  • Model 5 – Buyout of family home by father (p 49) – A variation on Model 2 involved the buyout of the family home by the father, who paid his wife her equity share of the property in a lump sum. This settlement was chosen in 6 cases out of the 87 observed.
  • # In Case No 10, the father paid his wife €50,000 and their only child (an 18-year-old daughter) lived with her father in the family home. The mother was employed and paid no maintenance.
  • # In Case No 25, the father paid €150,000 to his wife, who bought another house. She had four children living with her, aged 16 to 20, and was employed. The father paid €1,200 maintenance per month and their health insurance.

Mothers in these two instances, and in others where no buy-out pertained, were clearly “onto a winner.” Where mothers were employed there was no payments made to the husband whether or not he gained custody.

Factors affecting custody

The status of the plaintiff is important according to work by Cancian & Meyer (1998):

  • a parent is less likely to be awarded custody if he or she has been previously married
  • or has children from a previous relationship.
  • economic responsibility for the children, such as maintenance contributions,
    are also important.
  • ‘sole mother’ custody is more likely when the mother is the plaintiff since she may ‘want’ custody (Fox & Kelly, 1995; Cancian & Meyer, 1998).
  • a record of paternal child support arrears decreases the likelihood thatthe
    father would receive sole physical custody (Fox & Kelly, 1995, p. 704).
  • when husbands were plaintiffs, they were more likely to receive custody (Fox & Kelly, 1995; Cancian & Meyer, 1998).

This last item, the authors suggest, indicates thatfathers have to ‘seek’ custody from a court in order to achieve it. This is highly improbable given similar claims made in other countries using similar small samples and national statistics thatthen fail to back-up such findings.

Income factors

The establishment see child support as a sign of paternal support and interest in the child, the probability of shared custody rises with total income, US studies have shown (Cancian & Meyer, 1998, p. 150), Conversely, the probability of ‘sole father’ custody falls with income.

Fox and Kelly (1995) also investigated the ways in which income level can affect the
outcome of a custody order. They found that high-income fathers may be less interested in sole custody when compared with low-income fathers; this is because high-income earners have higher employment-related opportunity costs associated with child-rearing (Fox & Kelly, 1995; Teachman & Polonko, 1990).

Intuitively one must regard these examinations of 10 years ago as dated and thata sea change has occurred in paternalattitudes towards child care.

Enforcement

The UK’s Children and Adoption Act 2006 is cited as now providing courts with new powers to promote contact and enforce contact orders made under a new Section 8 of the UK’s Children’s Act, 1989. The Irish authors think that this is something of a breakthrough:

  • “It is concerned with the facilitation and monitoring of contact, the enforcement of contact and compensation for financial losses incurred by a person where there was a breach of contact arrangements.”

Unfortunately, the 2006 Act gives no more powers or impetus to judges to enforce their orders than they enjoyed before and we can speculate that the 2006 Act powers are being used as sparingly – if ever – as all the previous children legislation which to name a few includes the 1923 Act, the 1936 Act and the 1946 Act.

  • Has anyone, including Tim Loughton MP, heard of these new powers being used.
  • Has anyone thought to tell him they are a waste of time with the present mindset of the judiciary ?

 
Proprietorial concept

The late 1990s saw courts all across the western world move towards “giving a new weight to children’s views and to including them in the decision-making process.” This was simply a ruse. In reality children were still excluded as they had been before but it was a means to an end – the abolishing of guardianship and transferring enhanced powers to the state / courts.

The Australian 2006 Act which promoted ‘shared parenting’ also eliminated the dominance of child ownership by parents – according to Mahon & Moore.[6]  The new Australian legislation now provides for orders that describe where a child is to live and the time a child is to spend with each parent. Judges must now consider the matter of spending equal or significant time with each parent, with the emphasis on parenting or care work.
The behaviour of parents is monitored and belligerent parents can be asked to pay legal costs if they proceed to litigation in their dispute.

This was seen as being over-zealous by some experts such as Helen Rhoades who claims that the State’s over-emphasis on parent-child contact has led to a focus on maintaining contact regardless of parental capacity. It has led to a shift in the balance of power between resident and nonresident parents, in which mothers have lost their protective powers while fathers see themselves as entitled to contact. Allegedly, this reveals that Australia has moved very extensively towards adopting a legal response on contact as advocated by the ECHR.

Extrapolating from this view the UK’s Children’s Act, 1989 merely enshrined a co-parental role which requires thatnon-resident, i.e. separated fathers, to engage in family life in such a way as to support the child’s best interests, but there is nothing in the Children’s Act to support a presumption of contact or shared parenting – ‘contact’ remains a qualified right. Yet as we have seen atthe beginning of the article, Sect 11(4) of the Children Act 1989 provides for co-residence (residence order for two people).
 
Proponents have argued that shared residence should be the norm and that there should be a presumptive or automatic division of a child’s time between both parents (Gilmore, 2006, p. 344). However, the British Government in 2004 rejected a statutory template for the division of children’s time imposed on all families and may do so again in 2012.

While vested interests play for time, a new Fathers’ Rights Movement has grown up
in the UK, with separated or divorced fathers seeking an active fathering role and
generating a debate on the rights of non-resident fathers (Collier & Sheldon, 2006).
Courts, while happy to promote contact not favoured shared residential parenting especially for young children. Yet psychologists promote very frequent regular contact between parents and their children – including between fathers and their infant and younger children – so the Irish report concludes that the emergence of shared parenting is a welcome development in that context.

E N D

Source ref: http://www.dcya.gov.ie/documents/publications/Post_Separation_Parenting.pdf


[2] Cited inShannon, 2005, p. 39.

[3] See  B v. B [1975] IR 54, per Ó Dalaigh, C.J.

[4] See State (Nicolaou) v. An Bord Uchtala [1966] IR 567.

[5] Shared Parenting: the Law and the Evidence (Part I), by Stephen Gilmore. http://www.nagalro.com/system/site/uploads/content/docs/Journal/Seen_and_Heard_SGilmore_Dec2009.pdf

[6] Family Law Amendment (Shared Parental Responsibility) Act (Aust).

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