Getting the authorities and the establishment’s agencies to focus on – or even acknowledge – the everyday failings in the system they administer is the gravest obstacle to progress we face.
It took more than 10 years to revisit the Children Act 1989 in the form of the Children Act 2004, and a further 10 years later we have the equally limp-wristed Children and Families Act 2014.
Precisely what is wrong with these Acts is that they muddle ‘public law’ (where usually parents don’t care, i.e. are abusive or neglectful), with ‘private law’ where generally speaking both parents dearly love their children. Ninety percent of the content of these Acts deal with public law scenarios. The result is catastrophic for over 100,000 children per year enmeshed in private law cases but judged by public law criteria.
There is a desperate need for an exclusive Children Act for private law cases only, i.e. divorce cases.
“None so blind . . . . . “
There appears to be some sort of invisible impediment to reasoning when negotiating change with the usual authorities and the establishment’s agencies in charge of such matters. The mentality adopted is to stand on the hose pipe and then wonder why no water is coming out to quell the flames of indignation. These civil servants find it hard to find fault or even consider a hint of dereliction of duty or incompetence in themselves – so we must look abroad for examples and ask:
- “Do you now see anything here that mirrors your own conduct ?”
Only by an arm’s length comparison might they at last see how destructive their present course has been and will continue to be if unchanged.
And we do not have to travel far or suffer the perils of losing the biting edge due to translations: we can turn to Ireland. In an award-winning essay, Roisin O’Shea writing for her Doctor of Philosophy lays bear the inner working of the broken Irish system and by implication (because their laws are so highly comparable to Britain’s, points a finger at our many Achilles heels). The research sample is highly reliable consisting, as it does, of a large sample size of 1,087 unique cases.
At a time when CAFCASS is concerned – as is the UK government – at the length custody hearings take, in terms of weeks and months, it is à propos to recall just how fast a divorce takes:-
Length of time in the courtroom (Irish research):
- The shortest time in court was 30 seconds for a consent divorce (Western Circuit), no evidence was heard and neither litigant was sworn in.
- The longest full hearing observed was 5 hours.
- The average duration of all court sessions was 8.36 minutes.
- The average time for consent divorces across all 8 circuits was 5.3 minutes and 7.5 minutes for consent separations.
- Contested divorces took on average 20.57 minutes and contested judicial separations took 16.79 minutes.
Clearly, this rate of rapid ‘disposal’ of cases by the divorce courts is creating a bottleneck further down the pipe line. And should we doubt these figures then it should be borne in mind that the project was funded by the Irish Research Council, in March 2014, and the analysis endorsed by external examiners, Prof. William Binchy (Trinity College) and Dr. Aisling Parkes (University College Cork). For more about the report and its author see Annex 1 “About the researcher.”
“It is a finding of this research paper that points to a failing in the wide discretionary powers given to the judiciary and applied by them, in separation and divorce cases” (NB. time and again, over 2 decades, fathers’ organisations have highlighted the almost total absence of specialised or on-going training for family court judges – RW). “This resulted in a considerable variation of approach and outcome. Rather than finding consistent decision-making patterns, it was difficult to identify any consistency of approach.”
And the comments of the judges make for interesting reading. It is known that the emotional drain of hearing cases day after day has affected a few judges in the UK – some of whom have retired into other fields – but the Irish judges here are far more frank:
- Judge 9; “While the ‘in camera’ rule is necessary to protect the parties and their children from the public eye, the lack of any record is a significant downside. Would people really attend family law proceedings if the ‘in camera’ rule was lifted, no-one comes in for civil cases and very few people attend most criminal trials, apart from the high-profile cases”.
- Judge 1 “Parenting agreements should be put together by experts, every case is different and a lot of court time can be wasted trying to work out individual arrangements.”
- Judge 2; “The lack of judicial training in family law is an issue, particularly training to deal with children. Some form of training is required to assist judges deal with children directly when required, and to understand the dynamics of parental conflict”.
- Judge 7; “I can manage short bursts, but if I had to do a long stint, I would go mad”.
The whole paper is worthy of special attention but given below are the most salient chapters, namely that of sub-sections 4, 5 and 6.
Section 4. Litigants
- It is a finding of this research that the poorest outcomes were for men who were lay litigants or self- representing, followed by non-national lay litigants
- 22% of all litigants were self-representing (lay litigants)
- It is a finding of this research that litigants, who attend at court, are generally treated as peripheral to their case, by the custom and practice of the family law courts. Litigants must usually operate two steps (solicitor, barrister) removed from any discussion relating to their case and are seated at a distance from the legal players and proceedings within the court- room. Judges very rarely spoke directly to litigants where they had representation, unless that litigant was on the stand giving evidence. The formality and age-old traditions operated by the officers of the court, and the court itself, clearly created an uncomfortable and often incomprehensible forum for litigants.
- Judge 6; “It is extremely important to have researchers and court reporters in the court-room so that more information on decisions is in the public domain, particularly in light of the increase in lay litigants in cases”
- Judge 9 “I would be very much against people representing themselves, you get people involved who don’t have proper training. Trust is also a huge issue, when a practitioner or officer of the court says something you can take that it is so, counsel have a high duty to the court. Lay litigants take a much greater amount of court time, instructing them in matters of law is hugely time consuming”.
- Judge 7 “…there were two categories of lay litigants, those who were forced to self-represent due to economic circumstances, and the “jihadists” who become obsessed with the court process, coming frequently to court through multiple applications, who have become embittered about what they perceive as injustices or wrongs wrought against them, often believing there is some form of conspiracy”.
Section 5. Children
• In 95% of the cases observed the primary carer was the mother, and in 100% of cases where access was unilaterally withdrawn, it was done by the mother.
• In no case was the primary carer sanctioned for persistent unilateral cessation of access in breach of court orders.
• In 93% of the cases before the court, children under the age of 12 resided with the mother.
• 1% of children resided with both parents under 50/50 parenting arrangements
• In no case were the views of any child heard directly by a judge, the views of the child were expressed through the primary carer or through court ordered expert reports where there were allegations of abuse. On several occasions counsel asked the court if a child could speak with a judge, in all instances this request was refused.
• In no case observed did a judge ask to meet with a child in any matter that affected them, despite such rights being stated in the U.N. Convention on the Rights of the Child, 1989.
• A finding of this research is that no mechanism currently exists for the views of a child to be heard by the court, where that child wishes for their views to be considered.
• In divorce cases where there were dependent children, 71% of the applications were made by women, and in judicial separation cases where there were dependent children 75% of the applications were made by women.
• Where child maintenance was agreed or ordered by the court, € 100 per child per week was set in 43% of the cases, in almost 1/3 of the cases it was set at € 50 per child per week. Child maintenance orders were frequently made by the court where the husband was only in receipt of State benefits.
• 100% of maintenance orders were made in favour of the wife; where the husband was the primary carer no application came before the court for maintenance from the liable wife.
• “Joint custody” in the Circuit Court appeared to be merely an acknowledgement that both parents have obligations to provide for their children, it did not mean shared parenting relating to the day to day care of children. While the agreement or orders may commence with “joint custody”, it was usually followed by “with primary residence to the mother/father”.
• Of great concern was the common approach of the court to make child maintenance orders where the payor, in 100% of cases the father, was only in receipt of State benefits, the average State benefit observed being € 200 per week. The national insolvency guidelines for 2013 state that subsistence level, i.e. the basic amount a single person requires to live on, as € 237.65 per week. The court, in the main, prioritised the legal and moral obligation on the payor parent to financially provide for their child/children, making orders that effectively brought payor fathers below subsistence level, and took no account of their financial ability to exercise “access” in terms of any transport costs and providing for the child/children during those periods.
- [NB. a similar situation of ‘paternal poverty’ arises in Britain too. Elsewhere in the paper the dire situation is compounded when it is stated: “Where the court ruled to allocate a greater percentage of the house to one spouse, in 95% of the cases the ruling was in favour of the wife”].
• It is a finding of this research that where court orders were made relating to access and parenting, that the outcome of those orders, was that the ‘tender years’ principle was almost uniformly applied.
• Most of the judges interviewed indicated an intense dislike for the emotional context of family law cases, and found disputes over the arrangements for children to be extremely difficult, and sometimes distasteful
• All of the judges interviewed acknowledged that persistent breaches of court ordered access was a chronic problem, but did not believe that attachment and committal was an appropriate sanction where the primary carer was the mother.
• The types of access orders made, ensure that primary carers become the predominant parent, with very limited time allocated to the non-resident parent
• The standard presumption operating in almost all courts, was that the status quo of children with the mother in the family home, should be preserved. Where a husband sought the sale of the family home, the response of the court indicated that the request was unreasonable. No alternatives were entertained, such as the possibility that the children could live with the father, or live with both parents, or live in rented accommodation post the division of marital assets. A very traditional view of property ownership was evidenced by the actions of the court, reflecting the Irish predisposition to acquire and own a home
• Eighteen ‘Section 47′ reports were reviewed in court, and four were ordered by the court. It was clear that there were no guidelines available to the court or the practitioners, as to what a s 47 should entail or indeed the required qualifications of the ‘expert’ who would carry out such an investigation. There was no consistency in the format or content of these reports, and only one judge took the view that s 47 reports should always be questioned and the opinions of the expert rigorously examined. Six of the judges, in court, indicated that they did not have time, or they did not see the necessity, to read the full report.
• A standard access arrangement for the non-resident parent, primarily fathers, that permeated across all courts as a default position, was the policy of ordering access every second weekend, for a period of hours during the day, and once or twice midweek for a couple of hours. This arrangement did not appear to be informed by any social studies or child centred research, but seemed to be derived from the only experts that the court dealt with directly, those experts who created Section 47 reports [Irish law not UK]
• Primary carers, the majority of whom were women, often sought to severely restrict or exclude the other parent from the lives of the children, on the basis that frequent contact with the non-resident parent distressed them, and in turn distressed the children. Where fathers were the primary carers they acted in a similar way in ‘high conflict’ cases.
- Judge 1 “I believe that children should be left with their mother at least until they are 12 or 13 and I do not think it appropriate to order the sale of the family where dependent children reside there with the mother.”
- Judge 7; “I am concerned that allegations of sexual abuse are at times being used as a very effective weapon, but a court is obliged to ensure that the HSE or the Gardaí investigate all such complaints”.
Section 6. Delays and long lists
- · Over-burdened lists, multiple adjournments and short hearings were found on all eight Circuits. The pressure of the list promoted inadequately short hearings and intense pressure to settle.
18% of contested cases [ 75% of which were divorce cases] were filed between 3 and 4 years before the case was heard in court
- • 10% of contested cases were filed between 4 and 5 years before coming to court
- • 6% of cases were filed between 5 and 6 years before coming to court
- • 3% were filed 6 to 7 years before coming to court
- • 2% were filed over 7 years before coming to court
• 58% of cases observed in Cork dated from 2007 or earlier
• The longest delays were observed in the Northern Circuit, where it was observed that there was more than one active divorce case 11 years or older.
• Almost 1/3 of judicial separations or divorce applications in Cork and Dublin took more than four years to substantive hearing, meaning that a significant number of divorce cases took eight years or more to be concluded.
• 24.8% of all cases listed to be dealt with were adjourned, usually without explanation. Despite significant adjournments, lists were still over-burdened on all but 2 days of this research.
• Letterkenny in the Northern Circuit was the worst example of an over- burdened list where 79 cases were due to be dealt with in three days. The indicative time required for cases to be heard on that list was 10 days, on top of which there were 52 further cases “for mention”.
• Waterford Circuit Court had the second most extreme over-burdening of a list where 76 cases were listed to be dealt with in a four day period
• Dublin operated 3 courts on most days, yet the average list to be completed for each court had 16 cases listed on any day. There were usually 2 full hearings listed per day. The longest Dublin list had 31 cases listed, of which 9 sought adjournment without any reason given.
- · A significant number of cases before the courts in the eight Circuits were dated from 2007 or earlier.
- In Dublin – 29.65% of all cases observed were from 2007 or earlier
- In the Cork Circuit – 58.65% were from 2007 or earlier
- In the South Eastern Circuit – 23.79% of cases were from 2007 or earlier
- In the Western Circuit – 9.43% of cases were from 2007 or earlier
- In the South Western Circuit – 8.82% of cases were from 2007 or earlier
- In the Eastern Circuit – 24.56% of cases were from 2007 or earlier
- In the Midland Circuit – 22.22% of cases were from 2007 or earlier
- In the Northern Circuit – 18.98% of cases were from 2007 or earlier
- Judge 4; “The lists are over-loaded, the quantity of work for us is too great on any given day. The system has unreasonable expectations listing multiple cases for hearing and motions on the same day. The system would never function without barristers, the court is so inundated with work”.
One can’t help but end this article by re-stating the grotesque abuse of power by the judiciary:
“Joint custody” in the Circuit Court appeared to be merely an acknowledgement that both parents have obligations to provide for their children, it did not mean shared parenting relating to the day-to-day care of children. While the agreement or orders may commence with “joint custody”, it was usually followed by “with primary residence to the mother/father.”
End of Extract
About the researcher – Róisín O’ Shea is an Irish Research Council funded doctoral scholar who has received multiple awards for her research work including joint 1st place in the HEA/Irish Independent Innovation in Research Awards in 2010, was an Irish Research Council ‘New Ideas’ Awardee 2011, and was awarded joint 2nd place with Prof., Marsha Garrison, Brooklyn School of law, in the ‘Innovating Justice Awards’, by the Hague Institute for the Internationalisation of Law 2012. In June 2013 she was an international guest presenter at the AFCC (Association of Family & Conciliation Courts) 50th Annual Conference in Los Angeles, where she presented her paper “Exploring a World Family Justice Model”.
Following her Viva Voce in 2013, the award of PhD was recommended with “minor corrections”, by examiners Professor William Binchy, Trinity College and Dr Aisling Parkes U.C.C., who stated in their report;
- “This is clearly a major piece of empirical research of a socio-legal nature, a most unusual achievement in Irish legal scholarship, where empirical research is in its infancy…well deserving of the award of PhD…”
To examine holistically, the family law system in Ireland, specifically in relation to judicial separation and divorce. Empirically based research forms the foundation for critical analysis, and subsequent development of, recommendations for reform.
About the research
The dataset contains cases observed from the eight Circuits from October 7th 2008 to February 24th 2012. The research sample consists of 1,087 unique cases, which were listed 1,179 times during the period of the research.
The percentage of listed cases observed by Circuit were as follows; Cork Circuit 17%, Dublin Circuit 29%, South East Circuit 29%, Western Circuit 8%, South Western Circuit 3%, Eastern Circuit 5%, Midland circuit 1% and Northern Circuit 8%. Half the dataset was taken from the Dublin and Cork circuits, comprising almost 46% of the sample, with a greater representation of cases in the Southeast based on the ability of the researcher to access those courts.
Family law lists were often cancelled, or amended with less days than initially scheduled, or the same judge previously observed was scheduled again to hear the list. The researcher accessed as many courts as possible within the limitations of (a) the lack of predictability of family law lists, and (b) the costs involved in travelling around the country. In the Dublin Circuit Court access was given to review case files, and 40 cases were selected, the oldest of the cases, in that Circuit, that had been observed in court during the research, filed between 2003 and 2006, and an in-depth analysis of the cases was carried out from the date of application to substantive hearing and orders made.
 ‘Judicial Separation and Divorce in the Circuit Court’ Headline Findings; March 2014, by Roisin O’Shea, Funded by the Irish Research Council.