Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

There are provisions in this section which are important and very welcome. They prescribe how to deal with difficulties that arise when a parent fails to comply with a custody or access order and, effectively, this legislation will deal with the issue of access.

There is provision for a parent who has financially lost out. For example, attending or arranging to meet a child for access but for some reason, or rather the other parent obstructs that. One parent can be required to compensate the other for whatever financial loss, the parent can be given alternative or substitute access, and he or she can be required to attend a parenting programme or family counselling. All of this is very worthwhile and works well in Australia. The provisions here substantially reflect the provisions in the Australian family law Act.

With the Australian family law Act, in Australia they discovered that all of this was right and well but there were groups of parents who were so entrenched that it simply did not work. One can urge people to go to parental counselling or to participate in some sort of family counselling or parenting programme, or one might even force one parent to pay the other parent the cost of the bus fare for an abandoned access that does not take place. It is important that we realise there is a small group of parents who set out to destroy the relationship children have with the other parent when a marriage or relationship has collapsed. It does not have to be marriage, people may have been cohabiting together, but one or both parents can go to war with each other.

Sometimes it is simply one and sometimes it is both, and the children are in the middle of it. When this happens, the judges are frequently out of their depth. They find family cases difficult to deal with. In practice, when parents conduct themselves in this way, judges will normally urge on multiple occasions a parent to abide by court orders. I have seen judges threaten to transfer custody of a child from one parent to the other where the custodial parent is clearly misbehaving, but very often that is not an appropriate order to make because the parent who is anxious to have access to a child either does not have the accommodation where a child could live or they are at work and it is not practical that they have the day-to-day care of the child. There can be a whole range of reasons that it does not work.

I have seen on occasion judges literally tearing their hair out to resolve problems. When people are on civil legal aid through one of the Government law centres and where one parent, for example, can afford a lawyer and the other cannot, and the parent with the lawyer decides to go to war with the other parent, there is the risk that the law centre would just throw its hands up and the parent who is experiencing difficulties in spending time with his or her children finds they cannot even get legal representation to make their case to a court. On occasion, judges just lose their temper with everyone, and where one parent is misbehaving and the other is behaving properly, the judge just does not want to know and will not listen to either of them, to the detriment of the children and the parent whose contact with the children is being obstructed.

That long introduction is about saying there is no point in having all of this in the Bill if there is no sanction the courts can impose where one has a recalcitrant parent. The only sanction the courts can impose at present is they can send parents to prison. No one wants to see parents sent to prison. Judges, understandably, are enormously reluctant to do that and in circumstances where it is the custodial parent who is misbehaving and the other parent does not have the capacity to care for a child for some of the reasons I gave, that is not even a practical option and it is not in the interests of the children that that occur.

Other jurisdictions have tried a variety of different ways of dealing with the situation. One is that parents can be fined, so as opposed to simply paying someone back the cost of the bus fare or the cost of the petrol to drive out for an access visit that never takes place, the courts can impose a fine. Often, where marriages or relationships have broken down there is limited finance so imposing a fine may not be a great option and indeed it may affect the children because there may be less money in the household, but it is one of the options that should be there because there are circumstances where people have gone to war where it is not a financial matter, they are just at war with each other, and the court should have sanctions as an option. The court should have an option, for example, to require the recalcitrant parent to do community service. It does not put them in prison or cost them money but takes up some of their spare time. They could be doing the community a service while the other parent is having access. There is a need for some form of sanction that falls short of imprisonment. Some suggestions were put in the draft Bill for the consultative process on which I expected people would have different views, but it seems there is now no sanction if one does not comply, other than the one I mentioned - that one might be required to pay someone back the cost of their missed visit.

If a court takes a view that two parents together, or one who is creating a difficulty, should go to parental counselling and the court makes that order under this arrangement and the parent simply does not co-operate, the question is what is to happen next. I am asking the Minister that question. If the court orders that parents should go to family counselling together and one parent turns up and the other does not, the question is what is to happen next. If they both turn up and one is just abusive of the other at the family counselling as opposed to trying to work through issues to the benefit of the children, what is to happen next? An answer is required in that regard for this to work, and to improve the predicament that some estranged parents find themselves in, which is enormously to the detriment of children.

The other thing I have learned from 30 years of family law experience is that I can recall circumstances where I represented estranged spouses in the late 1970s and early 1980s who went to war with each other and where one spouse set out to destroy the relationship of the children with the other spouse. I was long enough as a lawyer to subsequently represent the adult children of those people who themselves were in a dysfunctional relationship because they had been damaged as children by the way their own parents conducted themselves, and now they were damaged in their relationship and they were now behaving in exactly the same way because that is all they knew. This is not just about particular couples; it is about a cycle of family dysfunction that needs to be broken.