Dáil debates

Thursday, 22 September 2022

Saincheisteanna Tráthúla - Topical Issue Debate

Child Protection

4:05 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I call Deputy Durkan, who is returning to an issue close to his heart. He wishes to ask the Minister for Justice and Equality to discuss measures to safeguard and protect children in sensitive family law cases.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I am thankful for the opportunity to raise this issue again. It is an issue with which all public representatives are familiar. I was somewhat at sea on the last occasion because I did not have as much information as I would have liked to have been able to present to the House. Since then, I did some research and was astounded at some of the things I found. It was suggested to me that there might have been the development of an anti-women element in the courts.

Women were not getting their rights as mothers as in the case I mentioned. She has particular rights as the primary carer and custodian of the children and rights under guardian ad litem. These were not observed and were dismissed or rejected by the court. Subsequently the children in this case were accosted in school by gardaí on foot of an order from the courts and were brought to the other side - to the respondent in the case, which was obviously a case in the divorce courts. The children were taken away from their mother and placed in the custody of the former spouse of the litigant.

I concluded, as you would conclude, a Cheann Comhairle, having dealt with these matters for many years - and other Members as well - that there must be something there that we did not observe. I did some more research and I then discovered that the mother was accused of attempting to turn the children against the father, who had been removed from the house some years previously on foot of a serious issue. The case persisted, to the extent that the mother was warned that if she approached a public representative, Tusla or anybody else, to plead her case there would be recriminations for which she would pay in the short and long term. It would appear now that her offence is that she is accused by an accuser, supported by the court, of trying to turn the family against the father. The most important point is that allegation was never challenged. The judge in question decided not to hear the case, which went against her, and since last May she has not had an occasion to meet her children except by way of telephone call. There were repeated admonitions from the solicitor for the other side pointing out that if she persisted, this would be taken into account against her.

I did some other research. You will be interested in this as well, a Cheann Comhairle. I researched a number of cases that I had dealt with over the years. I found that there was a pattern, which appeared to be misogynistic and to address what was referred to as the women's issue, whereby women were seen to be too powerful and were getting too much of their way in the courts and the aim was to redress that. Everybody is entitled to their day in court and to due process and natural justice. They might not always win, but there must be an opportunity where the questions are asked quite strongly by the opposing side in order to verify the case. That is their right. It is also their right to have an alternative court-appointed child psychologist, psychologist or messenger of the court, as it may be, to deal with the issue if necessary in order that justice prevails. That is the information I have so far. You will be interested, a Cheann Comhairle, in the next piece of information that I will not have for another week.

4:15 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Before I call the Minister of State, Deputy Rabbitte, I want to say that we heard some of this case last week when the Minister, Deputy O’Gorman, was here to deal with it from the point of view of the Department of Children, Equality, Disability, Integration and Youth. I thought long and hard about whether to select this issue today, but I have selected it because nobody is identifiable and because Deputy Durkan has demonstrated over a very considerable period his deep concern about this issue. It raises fundamental issues of natural justice. I do not know where else it could be ventilated if it cannot be ventilated here, so in that context we are dealing with it again today.

Photo of Anne RabbitteAnne Rabbitte (Galway East, Fianna Fail)
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Thank you very much, a Cheann Comhairle, for putting me in the picture in the context of this matter. I am taking it on behalf of both the Minister for Justice, Deputy McEntee, and the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman. I will keep to the script on this so that we can continue with the story.

I thank Deputy Durkan for raising this important matter here today and for giving me the opportunity to provide clarity on some issues. Management of the courts, operational matters and logistical functions are the responsibility of the Judiciary and the Courts Service, which are independent in exercising their functions under the Courts Service Act 1998 and given the separation of powers in the Constitution. As such, I am unable to comment on the specific matters raised by the Deputy.

Section 47 of the Family Law Act 1995 provides that the Circuit Court or High Court may order a report in writing on any question affecting the welfare of a party to family law proceedings or any other person to whom they relate. Section 3 of the Guardianship of Infants Act 1964 provides that the best interests of the child shall be the paramount consideration for the court in any proceedings where guardianship, custody or upbringing of, or access to, a child is in question. Section 32(1) of the 1964 Act provides that in such proceedings, the court may do either or both of the following: give directions for the purpose of procuring a written report from an expert on any question affecting the welfare of the child; or appoint an expert to determine and convey the child's views. Assessors and experts in family law proceedings are formally appointed by the court, and answer to the presiding judge in a specific case.

The Minister for Justice, Deputy McEntee, is determined to overhaul the operation of the family justice system, to ensure that we have a more efficient and user-friendly family court system that puts the family at the centre of its work. This is a key commitment in the Minister's Justice Plan 2022. The programme for Government contains a commitment to enact a family court Bill to create a new dedicated family court within the existing courts structure and provide for court procedures that support a faster and less adversarial resolution of disputes. The purpose of the legislation is the establishment of a dedicated family court to improve levels of judicial expertise and training in family law matters and to streamline family law proceedings, thereby making them more user-friendly and less costly.

The general scheme of the family court Bill has been referred to the Office of the Parliamentary Counsel and drafting is progressing with a view to publication of the Bill as soon as possible in this Dáil session. The Minister also established a family justice oversight group to develop the first national strategy for the reform of the family justice system and to support the legislative changes proposed in the planned family court Bill. The focus of the group is to drive and co-ordinate the modernisation of the family justice system to make it more user-friendly, streamlined, supportive and, where possible, less adversarial. The terms of reference of the group include developing a high-level vision and medium and long-term objectives for the development of an effective national family justice system. This will be most obvious in the development of the first family justice strategy and its subsequent implementation. The strategy is currently being finalised.

As part of its work to develop the strategy, the group engaged in a consultation process where relevant stakeholders, the public, children and young people who engage with the family justice system gave their views on how a modernised family justice system should look. A number of common issues were raised and are being considered for inclusion in the emergent family justice strategy, including: a greater focus on children; the availability of and access to support services; the potential use of less adversarial approaches to the resolution of disputes; and, where possible, appropriate training and information dissemination and awareness raising. One of the areas being considered by the group is additional training for those working within the family justice system that would benefit all those who engage with the system. The family court Bill will provide that specialist knowledge, and ongoing professional training in the area of family law will be required to be appointed as a family court judge.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank the Minister of State, Deputy Rabbitte, for coming into the House and addressing the issue comprehensively. It is something that falls into the area of a change in legislation. We referred to the in camerarules as they apply to family law cases. Like the Minister of State and other Members of the House, in the past I have had to go into court as a witness in such cases. Not everybody welcomed me with open arms but I did what I felt I had to do. As they say, fair play is good sport, wherever it applies. The Minister of State referred to the protection of the rights of the child and consultation with the child in particular situations, which did not take place except in an arbitrary fashion by somebody who proclaimed to know best what to do. That is something that most mothers in the country will have strong objections to, and I do not blame them.

I am worried about the pattern of a number of cases that I dealt with, whereby there was an intent to take away the rights of the mother of children or to take away rights that she might have after rearing her family and suddenly face the possibility of being out on the road after 20 or 30 years. That cannot and should not happen in any democratic society. All the Members that I know in this House have always dedicated themselves to getting fair play for people in such circumstances.

This question went out to two Ministers and both Departments have been threatened obliquely by the other side as to there being consequences in the event of a report being made to either or both of them. I hope we have addressed the issue and that action will be taken to ensure the issues I have referred to will be addressed fairly by the courts.

4:25 pm

Photo of Anne RabbitteAnne Rabbitte (Galway East, Fianna Fail)
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Again, on behalf of the Minister for Justice, I thank the Deputy for raising this matter. In addition to the progress previously outlined, she recently held a public consultation on the topic of parental alienation, which provided a valuable opportunity for stakeholders and citizens to express their views on this complex issue and inform her Department’s thinking on whether any legislative and policy changes may be required. All views, opinions and experiences submitted as part of this consultation have been welcomed and those responses received are under review. The Department of Justice has arranged for a separate strand of independent research on parental alienation to be carried out. The Minister is pleased to say a draft report has been received by the Department and is being reviewed. It is expected that both the research and the consultation will create a deeper understanding of the issue and inform the Department's consideration on policy on law in this area. The Minister, Deputy McEntee, expects the report outlining the outcome of the research and consultation process towards the end of the year.

The Deputy referred to the voice of the child. We had a referendum on this and the voice of the child has to be taken into consideration at all times. I am delighted to say my colleague, the Minister, Deputy McEntee, has this work done in relation to parental alienation. While today the Deputy talks about the mother, in a lot of cases it is the experience of the father as well who finds himself in that similar position. We have to have the child at the centre and to stop weaponising one parent against the other to ensure they can come down heavy on one side or the other.

I welcome what the Minister is doing and I will relay the Deputy's comments to her.