Dáil debates

Wednesday, 14 September 2022

Saincheisteanna Tráthúla - Topical Issue Debate

Family Law Cases

9:55 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank the Ceann Comhairle for allowing me to raise this issue. It is an important issue and I thank the Minister for coming into the House to address it. I know this family well. In a family law procedure, both sides have an opportunity to make their case and have it challenged. In the case of this particular woman, she was greeted with a child psychology report, which was accepted without challenge. She was never given an opportunity to challenge it. The Minister and I have been in courts across this country and in our neighbouring country many times. I have never seen a case where a situation was not challengeable by the other side, but it could not be challenged in this case.

The upshot of everything was that the children were taken away from the mother and handed over to the father, who was absent from the house for reasons which had arisen prior. Since last May, that mother has not had an opportunity to meet her children. One of them tried to run away from school. The child is distressed and unhappy. The mother of the children is always regarded as the primary carer. To take the children away from their natural mother is the most appalling thing that can be done to any woman, because it challenges her right to be regarded as a good mother. This woman rejects vehemently all the charges that were made against her. Most of all, in the lead-up to a final decision, she has been prevented from talking to her children on the basis that she might turn them against their father. That is not a good enough excuse.

The mother's rights are being violated. She was in touch with Tusla. I was in touch with Tusla myself. It was very helpful, but it has been barred from intervening by the powers that be. This has happened for some reason, whether due to guardian ad litemrules or some other rule that has not been seen before. I have my own ideas about why this happened. Incidentally, she was obliquely threatened, in the event that she raised this with any public body, including Tusla, or with public representatives. My answer to that kind of thing is that we are glad to hear from the body in question, but we have heard that before, and threats do not count. The most important thing is that the mother's right to be with her children is protected. If the courts decide afterwards, on the basis of evidence which has been correctly challenged by one side or another, then we will accept that decision, but we will accept nothing until that decision comes about.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I thank the Minister for being here to deal with what is obviously a very sensitive matter.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I thank Deputy Durkan for raising this important matter. It is of huge significance to the family involved. I am not aware of any of the circumstances of this case. The question submitted to me related specifically to guardians ad litem, which have a very narrow remit. From what the Deputy has described, I am not sure how much directly covers the situation. The situation raised is a broader issue relating to the operation of the family court. Even though it is the family court, it is more a matter for the Minister, Deputy McEntee, than for me. I have prepared an answer relating to guardians ad litem, which I will deliver. I am not sure that it will enlighten the Deputy with regard to this situation, but I will engage with it to the extent that I can.

A guardian ad litemor GAL is appointed in childcare proceedings to inform the court of any views which the child wishes to express and to advise the court on what, in his or her professional opinion, is in the child's best interests. GALs do not make decisions regarding parents' access to their children. Any such decisions are taken by a judge. Court orders regarding children in care are matters for the court and as Minister I cannot interfere in any such decision. However, as Minister, I am working to ensure the law relating to children in need of protection is updated and improved where needed.

I recently brought the Child Care (Amendment) Act 2022 through the Houses of the Oireachtas. It was signed into law in July. This Act provides for reform of the GAL system, and will allow me to establish a new national GAL service with an executive office in my Department. Preparatory work to open that office is under way. I am pleased to inform the Deputy that I plan to commence sections 1, 4, 6 and 13 of the Act next week. These cover wider areas of reform. First, there is a requirement that the court regard the best interests of the child as the paramount consideration, which is relevant to what the Deputy has discussed. Second, there is a reform that ensures the Child Law Project and any similar projects will have access to relevant court documents and allows officials to attend childcare proceedings for specific purposes.

My Department is also reviewing the Child Care Act 1991, which is the major legislation that deals with taking children into care, whether foster care or special care. I look forward to bringing the heads of an amendment Bill to the Government by the end of this year and hopefully getting that legislation passed next year. The 1991 Act is wide-ranging legislation which, at its core, seeks to promote the welfare of children who may not receive adequate care and protection. My Department has consulted extensively with stakeholders to collect their views on the legislation, including through calls for written submissions and a number of consultation events. That Bill will revise and update the 1991 Act to better reflect changes in child welfare and protection services in Ireland in the 30 years since enactment and the constitutional recognition of children as individual rights holders. It will also allow for positive practice developments to be enshrined in law where needed.

Reflecting on the facts the Deputy has outlined, I am not sure if the GAL is the issue here. I think the issue might be the wider process used by the court. I draw the Deputy's attention to the legislation passed earlier this year. I am about to activate the piece relevant to the principle of the best interests of the child being pursued. That is perhaps of as much relevance to the case that the Deputy has brought to our attention this evening.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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The Minister has answered the questions himself. It is imperative that Tusla get involved in the case. The court directing that it is not welcome is, to my mind, a violation of the mother's rights, which cannot be tolerated. I ask the Minister to encourage Tusla to get involved in the case to secure the children's rights. Presumably, the court psychologist's report would back that up, but it did not, because it was only requisitioned on behalf of one side. The other person was not allowed to counter it. I cannot understand how that could happen. If it is an attempt to set a precedent and change the law, I do not understand how that could happen either, because we change the law here. The point is that the law is the law. People will always say that they want justice when they go to the courts, but as I always say that they will get the law. We do not want anything else. The rules are that the interests of the child be put to the front of every argument and debate of that nature. I have dealt with scores of them, just as the Ceann Comhairle and other Members of the House have. In every single case, the rights of the child had to be protected.

In this case there are two children separated from their mother by order. I believe it is a violation of the rights of the children and the rights of the mother.

10:05 pm

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I thank the Deputy. Obviously, there are clear lines of responsibilities between me as the Minister and Tusla as the agency that answers to the Department. I cannot direct them to take certain actions but perhaps if the Deputy would communicate some details about this case to me I can ask if agency staff have any concerns about the processes here. This is as much as I can do to intervene. I can do that. Obviously, we have to leave their decisions. I am also very aware that this is a court decision. Unhappy as the Deputy is, there is the Executive and Judiciary and there are lines of responsibility there. Maybe in the first instance the details of the case could be passed on to my office and we could have an element of engagement with Tusla to ensure all processes are properly adhered to.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank the Minister.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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That is a very helpful response.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Absolutely.