Thursday, 16 November 2023
Saincheisteanna Tráthúla - Topical Issue Debate
Family Law Cases
I thank the Ceann Comhairle for allowing me to raise this important issue once again. I thank the Minister of State for coming into the House to reply. As we all know, this arises from the continued and ongoing use of section 47, section 32 and other sections in litigation in respect of family custody situations. The production of a section 47 or a section 32 report predetermines the outcome of any case, any discussions in almost every instance, particularly in cases where no cross-examination of the producer of the report is allowed. It is either ignored or disallowed.
The Minister has very kindly indicated a change in legislation which is due to come before the House early next year. Provision is being made at the end of the current year. The problem is that in the meantime, the abuse to children and their mothers and fathers continues. It comes with the authority of the State. Damage is being done to mothers and children as a result of the grotesque manner in which this is being carried out. The process is being accelerated notwithstanding the recognition that there is a new law about to come into force. Some measure is needed to disallow the use of that section in the interim in order to allow parents and children have the benefit of the new legislation when it comes into play rather than having to go back and appeal again and again.
The point I have made many times in the past, which the House has allowed me to do, is that the abuse continues and happens all over the country. Every week we get letters and calls to our office to the effect that this is happening again. Because it has been raised, understandably, the victims know that help is at hand. In the meantime, however, advantage is being taken of the situation to establish certain alleged rights. I strongly urge that something be done as an interim measure to interrupt the process and to instil in the minds of those who are committed to the concept - it has never been peer reviewed, has no standing in law at all and to my mind is unconstitutional in the way it happens in this country - and who are operating retrospectively that it is not going to go on forever and that we should be looking at the way things are likely to emerge in the future. This is because the Minister has already indicated that changes are at hand. I welcome the Minister of State, Deputy Rabbitte. I thank her for coming to the House, for her reply, and for her understanding of this issue in the past.
I convey the apologies of my colleague, the Minister for Justice, Deputy McEntee, who cannot be here for this matter due to another commitment. On behalf of the Minister, I thank Deputy Durkan for raising this important matter here today and for giving me the opportunity to provide clarity on some issues.
I must emphasise at the outset that management of the courts, operational matters and logistical functions are the responsibility of the Judiciary and Courts Service, which are independent in exercising their functions under the Courts Service Act 1998 and given the separation of powers in the Constitution. I am, therefore, unable to comment on any individual case or category of cases. To be fair to the Deputy he did not speak of any cases.
As the Deputy will be aware, last year, the Department of Justice committed to undertake both a public consultation and independent research on the topic of parental alienation as part of the Justice Plan 2022. The findings of both were analysed and, arising from this, officials from the Department of Justice developed a policy paper on how to address the issue. The research report and the policy paper can be accessed on the Department’s website. Both the paper and the report recognise that parental alienation is a highly contested and divisive concept. While there is little concrete information on the exact extent of accusations of parental alienation within the Irish courts, the research report found that, similar to other courts internationally, there appears to be increasing claims of parental alienation in family law proceedings. It appears to arise particularly in custody and access disputes and in cases where allegations of domestic, sexual and gender-based violence feature.
Despite the highly contested nature of the concept, there was consensus in the public consultation that the means to address parental alienation lie in improvements to the Irish family courts and family justice system. The Department of Justice is currently leading on an ambitious programme of family justice reform, including the publication of the Family Justice Strategy 2022-2025 and the Family Courts Bill 2022. The strategy puts children at the centre of the system and emphasises, among other things, the need to ensure they are listened to and heard and their views given due regard, in line with constitutional obligations and rights. Reflecting this, the policy paper puts forward six recommendations to address the issue of parental alienation. They centre on progressing elements of family justice reform, building the system’s capacity to adequately hear the voice of children, and improving the knowledge, skills and experience of all those involved to make the best determinations in each case on its own merits. This is especially important in high-conflict cases, in which allegations of parental alienation can often arise.
Both section 47 of the Family Law Act 1995 and section 32 of the Guardianship of Infants Act 1964, as amended, provide for experts to be called as witnesses in family law proceedings. Experts can be called by the court or by one or both parties. When an expert is called as a witness they can be cross-examined on their report and any recommendations made therein.
The family justice strategy contains an action, under the goal of supporting children, to examine the role of expert reports, including section 47 and section 32 reports, in the family law process. This action has been prioritised and will look at the commissioning and availability of these reports, their content and use. This review is progressing with a set of recommendations to be produced by the end of this year. I have no doubt that Deputy Durkan will welcome this. Later in the year, a working group will be established to review the effectiveness of the current arrangements for hearing the voice of the child in private family law cases.
The strategy also emphasises the importance of training for the range of professionals involved in the family justice area. As part of this, the Department of Justice will engage with a range of bodies, including the Judicial Council and its officials, to identify training needs in communicating with children and child sensitivity training. It will also support the work of the council to provide training opportunities to all judges focused on family justice and to identify a set of training requirements for family court proceedings.
I thank the Minister of State for her extensive and detailed reply. I am aware she understands the situation and this is indicated in the reply. The situation also needs to look at how simple it has become. For example, if a child is reluctant to visit with one parent in a particular situation, it is immediately concluded that this child has been the subject of parental alienation. That may not be the case. There could be a reason the child does not want to go in that particular direction. That should be reasoned and should be argued. It is arguable and should be admissible.
The other part is that the child's voice is no longer heard in those situations because Tusla cannot get involved. Tusla is bound by the in camerarule, which ensures no free agent outside can comment as they do not know what has happened. The media cannot comment and are not allowed to attend. It is nobody else except those directly involved. I understand why all of that was done, but there are now serious indications that children are being subjected to an abuse that should not be happening. They have done nothing wrong. Kids do not understand why they have been separated forcibly from their parent, or why they are not allowed to meet the parent, or why they are not even allowed to attend the meeting. Provision is made in the legislation for all those meetings to take place.
The bit that really worries me is where a Supreme Court judge recently commented on the expertise of expert witnesses where he inferred that the witnesses were taking over the job of the court. That should not take place. There are strict rules whereby everybody has their right to fair play in the courts and that is our democracy. I am aware the Minister of State understands it and I know that help is coming but it is not coming quickly enough for the kids who are currently the subject of the law as it is being interpreted.
On behalf of the Minister, Deputy McEntee, I thank Deputy Durkan. I also thank the Deputy because the voice he raises here every week on the issue of parental alienation is reflective of what a lot of us receive in our offices weekly or monthly. Having been a spokesperson for children and youth affairs, I know the voice of the child is sometimes forgotten. We can write all the legislation in the world and all the rules and regulations but we must put the child at the centre and listen to the voice of that child. This is why we have legislation to protect the right of the child.
The Deputy will be aware the Minister, Deputy McEntee, published the first family justice strategy in November 2022 that sets out a vision for the family justice system of the future. This will be a system that focuses on the needs and rights of children. It will be a system that assists their parents in making decisions that affect all of the family, and a system that makes it easier for vulnerable parents and families to get support and make informed decisions.
The strategy is foundational in nature recognising the many issues that currently exist within the system and outlining the steps needed to move towards a family justice system that is streamlined and user friendly and which supports and protects children and their families. The family justice strategy is an ambitious and wide-reaching strategy that aims to achieve reforms through the implementation of more than 50 actions across nine goals. As I mentioned, these include an examination of the role of expert reports, including section 47 and section 32 reports, in the family law process and commissioning the availability of these reports and their content and use.