My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Monday, December 23, 2013

 Anne O’Neill 
Wishes all clients & friends  

Happy Christmas & a Prosperous  New Year 

Tuesday, November 19, 2013

Article in The Irish Times 9th November  2013 by Breda O'Brien

"Debate on taking children into care is so long overdue"

I deliberately allowed some time to pass before responding to Breda O’Brien’s article in the Opinion and Analysis Section of the Irish Times November 9th 2013.  Her analysis made me angry with its cheap shot at lawyers always an easy target and a great refuge for lazy journalists.  Accordingly, I thought it best to leave some time pass before responding.  Breda is commenting about taking children into care, something I posted on quite recently in my blog, and asserts that the publication of the Interim report of The Child Care Law Reporting Project under the chair of Dr Carol Coulter, also quoted extensively in the blog, provides an opportunity to open the discussion. 
While it is true that the removal of the Roma children from their families in order to check their identity is hardly the stuff of day to day childcare cases before the District Court, it nonetheless occurs in a culture.  We need to examine that culture.  How sensitive are the authorities in their approach particularly to those who are not native to these shores?  Why did the police visit those Roma families in this circumstance without an interpreter?  Is it just coincidence that in the case I discussed the same thing had occurred and of course, my family were also not Irish?  I doubt it.  There is low level racism in this country and it manifests not so much in overt racist abuse more in the attitude to eastern Europeans and others living here.   It is a kind of – “if they don’t like it let them return to their own place” sort of attitude” and it allows us to do the sort of thing that involves going to people’s homes and taking their children (perhaps with some justification) but doing so in an unnecessarily harsh manner.  It is extraordinary to me that we Irish, who have been the butt of racism the world over, should carry on in this manner in our own place while all the while telling ourselves that we are great and hospitable people.  Hmmmm?
I fully accept that the vast majority of cases are about people whose lives are miserable and abject.  Breda typifies this as “mundane”.  Gosh – in Ireland in the 21st Century – do we really consider human misery and squalor to be “mundane”.  Is it impossibly naïve to expect more?  Am  I the last ancient idealist standing?  Breda states that the vast majority of cases in so far as they come to the attention of the authorities are triggered by alcohol and drugs but she goes on to say that it is striking “how often parents with mental health difficulties and cognitive problems feature”.  That is a very interesting observation and one which deserves much further and deeper analysis.  It needs to be cross related, for example, to cut backs and how those cut backs have affected our mental health services.  We hear a whole lot on a day to day basis about the how cut backs have affected our health care system or killed it off finally depending on your perspective but there is not much focus on what is happening to our mentally ill – another hidden minority perhaps?  Kieran McGrath an independent child welfare consultant is quoted by Breda as stating that if you believe your children will be taken into care it is a big disincentive to seeking help.  Precisely.  How many parents and indeed family lawyers would willingly seek the help of social services in family difficulties if they knew that the help would be structured positively and would be beneficial to all concerned?  I know that in my practice and I am over thirty years involved in this area, I actively discourage the involvement of social services if asked for my views by a client as I do not find it helpful or positive.  I do not discourage people from this route because I am litigation oriented or because I abhor peace and love conflict or whatever lawyer cliché we are having today!  I am a trained mediator and collaborator whose commitment to peaceful resolution is long established and unquestioned.  I believe that in this area there is huge scope for a collaborative and/or mediation approach but not one which cuts out lawyers one which is inclusive of lawyers.  There is no good reason to cut out lawyers from the child care system and there are many good reasons not too, human and constitutional. 
I agree with Breda that many of the cases presented are messy and there are no easy answers.  However, that is all the more reason for a thought out and sensitive approach.  Where possible our resources should be put into the family and only when all avenues in that regard are exhausted should we turn to care as the answer.  It is my experience that care is the most frequent and certainly the immediate response in most cases.  I accept that Alan Shatter, Minister for Justice, is correct when he says that the Gardai and Social Services are damned if they do and damned if they don’t in these situations however, that is all the more reason to examine our responses and the personnel we involve in a thorough and objective manner.  It is too easy to trump up the “vulnerable children” card and use that to justify outrageous trampling on people’s human rights.  I completely accept that the first and most important consideration must always be the welfare of the children however, frequently though not always the welfare of the children and the welfare of the parents are inextricably linked and accordingly a balanced, humane and holistic approach is required.  The decision to remove a child should only be made in extreme cases and only after other avenues have been exhausted unless there is an immediate danger to the physical or mental wellbeing of the child.   I know that this is the official stance of the powers that be however, it is one that does not stand up to scrutiny as emergency care orders seem to be a pretty standard response and once a child has been taken into the care system even for a week or so, it is very easy to leave him or her there for another few weeks while the investigation goes on.  Because of this it seems to me that good lawyers working in this area are crucial. 
Breda makes the suggestion that we should have specialist judges in this area and I agree with that just as I agree that family law judges should be specialists or at least have extensive training and experience in the area of family law.  However, Breda’s specialist Judges are qualified not only in law but in childcare and welfare.   I have no objection to the requirement that Judges hearing child care cases would be both lawyers and experts in childcare and welfare however, I have grave objection to such Judges having no legal qualifications or experience.  Judges should first and foremost have legal training and experience, ie they should be both theorists and practitioners.  For specific jobs they should be required to have, where necessary, additional training and experience.  In passing, however, I would state that frequently what we require from our judges is patience, listening abilities, politeness and respect, an agile and creative mind, the ability to walk a mile in someone’s shoes, humility and humanity.  I have found that over many years when I encounter most or all of these qualities in a Judge I rarely need him or her to also be specialised in the area on which they are adjudicating.   
We are told that in the Dutch system it is quite common for parents and social workers and children not to have legal representation.  The Judges we are told work very hard to achieve consensus.  Indeed, I am sure they do but from whose perspective and how do we know that this is a model that we want to emulate unless we hear from the parents and families who have experienced this system? Breda says that our system is “lawyered up” to an extreme and costly degree ….and “the more lawyers present, the more the focus is likely to be on disputes about the facts of the case, rather than on the best interests of the child.” This is what I mean by cheap shots because this analysis does not bear up to much scrutiny.  Social workers are frequently conflict driven and adversarial in their approach.  That has been my honest experience. Social Workers also need retraining if they are to change their approach in these cases and not just a weekend here or there.  It is accepted that if all parties “lawyer up” the costs are going to escalate but a less adversarial approach from all the professionals involved might mean that all parties would not feel the need to “lawyer up”.What an obnoxious expression that is by the way riding rough shod as it does over the idea that people should and do require legal representation on occasion and having your children taken away from you might just be one of those occasions. 

Finally Breda says that providing intensive support for troubled families is expensive but the alternative which is children with a lifetime of problems, ill educated and probably unemployed thereafter not to mention incapable of supporting their own families is likely to turn out to be far more costly in the long run.  In examining the costs here, we need to reflect honestly on the cost of foster care versus the cost of maintaining children with their families and whether the support we give to foster care might make a significant impact on the life of the families from whom we remove the children in the first place.Of course there are always situations where removing a child or children is the only viable option and in that sense we will always need foster parents and social workers who can make that call.No group is dispensable in this situation and it is not useful to focus on trying to find a scapegoat for our mistakes.Lawyers are necessary in this area since it concerns fundamental freedoms and human rights.  Many lawyers have extensive family law experience and are trained in conflict resolution.  We guard our judicial independence for a good reason and we forfeit it on any platform at our peril.  Social Workers do a tough and frequently thankless job but they can do it with more humanity and they can be solution orientated.They need to stop seeing lawyers as their enemy and figure out a positive professional relationship.To do this they need training but also the acknowledgement that they are often as adversarial as those they point the finger at.  The working culture in which these cases are examined needs to be changed completely.They need to be moved away from court houses and courts, they need to be about enquiry rather than blame, at least initially and they need to be multidisciplinary as Kieran McGrath says but I would stress that package includes lawyers.  In fact I would see this whole area as tailor made for the collaborative approach.   

Monday, October 7, 2013


It is with a great deal of joy and not a little pride that I have to concede that once again the Irish are a surprising bunch and despite practically no effective opposition, they were not fooled and voted against the referendum to abolish the senate.  Yahoo.  Lest anyone think that I am being naive and it was just a vote against a sitting government, the little fact that they voted in favour of the second referendum to set up a court of appeal and relieve the Supreme Court, is proof that it was not.

Friday, October 4, 2013

Child Care Conundrum –Theory & Practice

I am bothered greatly by the child care system in Ireland.  Most of the children taken into care are from poor and marginalised groups.  Let me say at the outset that I do not believe that the privacy of the family trumps everything and support fully the idea of scrutiny from outside, however, carefully controlled and monitored.  In an earlier time, I watched Nuala Fennell , Minister for Women’s Affairs as she was then, pilloried because she suggested an investigation into the death of Anne Lovett, a young girl who died giving birth in a grotto.  Against the Minister, it was strongly asserted that the family needed its privacy and that was that. Ranks were closed and so when some time after Anne’s death, her sister also died, there was hardly a ripple.  Rumours were rife but that was it.   Happily we seem to have travelled some distance since then (one can never be entirely sure) but how insightful and compassionate we are as a nation, is another day’s work.  We like to think of ourselves as nice, hospitable people and that notion is so fixed in our minds that it seems to me it actively prevents radical re-examination of our societal values and our ability to look at ourselves critically and with self awareness.   Even now, after all the exposure of child sex abuse and corruption at all levels of our society, we have still to openly debate the type of society we want in Ireland and how we are to create it.  We continue to elect politicians whose main hallmark is their paucity of vision.  They are either profligate, louche, cute whores or thin lipped, mealy- mouthed and cap doffing.  Either way, they are mostly an embarrassment.  Perish the thought that we should have vision.  Ideals are for the young and immature, we seem to think, but do we ever stop to ask what we are without them?   If we have no direction, no vision, nothing to aim or strive for, where the hell are we headed and for what purpose?  Here we are about to abolish the senate in Ireland without a second thought, with practically no opposition or debate, little insight into the historical context in which it arises, the people that particular institution has thrown up and without whom we would be mightily poorer as a nation, little or no knowledge of how much will be saved by the abolition even though that is the main plank of the argument for its removal in the first place, and no real or meaningful discussion of reform within that institution as an alternative to abolition and how reform might create something with the true potential to improve the functioning of our democracy.  It is so much easier to destroy than to reform.  It is hard to accept what is wrong but still to try and make something better.  As a family lawyer I know this intimately. It is one of the hallmarks of marital breakdown i.e., the instinct to destroy as a reaction to hurt rather than to pause, examine and strive to preserve what can be preserved for the sake of the whole.  Valueless people profit all the while from those baser instincts in our nature.   However, this article is not about the abolition of the senate though I needed to say what I thought about it in passing, this article is about the child care system.  As I said it bothers me. I have a number of questions about it – why are so few middleclass parents caught in the childcare net?  How much cultural awareness do we as a nation have about the values and culture of other nations living here?  How compassionate are we to them and understanding of their needs?  How much training do our professionals have in dealing with foreign nationals? Who are our foster parents and what are the criteria for becoming foster parents?  In deference to the immigrants in Ireland, are we actively encouraging non- Irish nationals living in Ireland to become foster parents and if not, why not?  How much debate is there about the fact that certain foster families make their living from foster care, is that good or bad?  Who are the lawyers who represent the HSE in their operation of the child care system and how are they chosen?  Who represents the parents and how are they chosen?  Is there a danger of jadedness and/ or a cosy cartel operating between these professionals?  While fundamental rights are frequently at issue in child care proceedings and therefore, the courts and the judiciary are rightfully, in my view, involved in the child care system and its operation, it does seem to me that we need to consider a less adversarial approach and certainly in the lighter cases.  How much thought and debate are we having about the voice of the child in such proceedings and how that might best be brought into play and since experts are frequently involved in such proceedings, who are these “experts” and what expertise do they need to have to make them experts?
There are so many questions but why am I focussed on this right now?  As many of you will know, very few private practitioners who are not involved in the legal aid scheme, and I am not, do child care work and the reason is that very few people find themselves in the child care system who can afford private legal representation.   As I said, this is a system which affects the poor and marginalised disproportionately, or so it would seem.  When I was asked, not too long ago, to represent immigrant parents who had got caught in a child care situation but who could not afford me, I agreed because I wanted to see how this area worked in practice.  I never expected that I would be fairly actively involved for over a year and I certainly learnt a lot from the experience.   Of course, you cannot generalise from one case and I do not intend to do this but because of that case and chiefly arising out of my experience with that case, I conducted a fair amount of research and spoke to a lot of various “experts” and colleagues more experienced in this area than myself.  In the course of all of this, I became a lot more versed in this area than I ever expected to be and a lot more concerned about its operation that I had been previously.  Arising out of that case, I voted against the children’s amendment to our constitution not because such an amendment is not worthy and certainly not because I do not believe in the rights of children or their autonomy as human beings, but because the operation of my child care case was such an eye opener that I feared the children’s amendment would be abused and cynically manipulated rather than used to benefit children as intended.  I still have those fears. The amendment which was passed has yet to be enacted. 
The parents in my case were poor and marginalised and would never have been able to afford private legal representation had I not simply agreed to take the case.  The very first question I was asked by the HSE’s legal representatives when I appeared was why this couple had left their “very able and competent” representatives in the Legal Aid Board? The very fact of having engaged private representation called these parents into question and seemed to confirm the diagnosis of them as difficult and having something to hide.   We were off to a great start.  I should say that my couple had never actually harmed their child.  The child in question was a healthy older child close to her teenage years described as intelligent and well behaved by all concerned.  They had, however, behaved in a neglectful manner on one identified occasion, by failing to collect the child.  No actual harm had come to the child on that occasion as a result of their failure, but authorities got involved and contacted other authorities and so forth and so on.  It is fair to say also that as the situation was being investigated, the pattern of their drinking, as parents gave rise for legitimate concern.  It would be wrong of me to say otherwise.  However, after I had completed extensive research into the child care cases reported in the court judgements, newspaper reports, reports of Dr Carol Coulter and discussions with colleagues, I think I can say with confidence that this case was a “light” case.    Nonetheless, the organs of the state rowed in on top of this family at full tilt.  The Gardai arrived to the home of this immigrant family with no translator and just took their child and if they gave explanations, they were not capable of being understood since the parents had little or no English.  The mother immediately ran to the local garda station after they took the child as she had no car.  She was refused information since no one was able to talk with her despite Polish people having lived in Ireland for over a decade now in fairly large numbers.  She was handed a piece of paper in Polish which told her to be in court the next day.  No one was available to speak with her in her language about the matter. The following day the child was taken into care on an emergency order and ultimately, the parents were not allowed to see her for eight weeks.  For that first and crucial appearance in court they were unrepresented and there was no translator.  Accordingly, the only perspective the court had from the outset was that of the authorities who had taken the child.  It took nearly a week before they were assigned a legal aid solicitor on the eve of their second court appearance.   Imagine not knowing what was going on in those circumstances for that length of time and not seeing your child?  The parents spoke little or no English and were confused and bewildered to the point of nervous breakdown.   From the time of my involvement, which was another court appearance later, I was struck by the adversarial nature of these proceedings.  At no point was I cordially received or entertained by either the representatives of the HSE or their professional social workers.  At first, I thought it was my imagination, but even I am not that paranoid, their demeanour was always hostile and occasionally aggressive.  Having read the handbook for social workers involved in the child care area, I thought, naively as it turned out, that our engagement was going to be solution orientated. The literature would give that impression.  I approached representation on that basis from the outset only to find myself being treated as the enemy.  My colleague regaled me with her knowledge of “polish drinking” habits and seemed to be completely confident that she could speak authoritatively about the whole nation in this way.  She sought to involve me conspiratorially in this thinking.  Only someone with little awareness of our own history and how we were perceived, and continue to be perceived abroad, would have adopted such a high moral tone.  But even allowing that she may not have been entirely unaware of that, she still sought to place a whole nation into a stereotype.   I would not play and so the conversation quickly became tight lipped.  Drinking during the day, she seemed to think, was an indication that one very likely had a serious alcohol problem as if drinking in the evening was somehow less of an indication.  She found my unwillingness to concede this very unreasonable and when I told her that as a student, many years previously, I would very occasionally have found myself in good company and drinking during the day, her reaction was so incredulous that I began to wonder if my own child would not be taken into care and thought I had better shut up quickly.  So much for reasonable solution orientated discussions outside court.  On a lighter note, the same solicitor had her photo taken with a mobile phone, passing through a check out in a supermarket around the same time as our case was going on with a trolley full of alcohol.  I hoped for better things from the Judge but I was to be disappointed.  The approach both from the bench and from the HSE was adversarial.  Indeed, I would go so far as to say that it was punitive.  Not allowing these parents to see their daughter for 8 weeks was frankly inexcusable and unreasonable.  I can only offer the explanation for such draconian measures as punitive. During that dreadful time, the mother started to write to her daughter every day as a way of keeping herself sane.  Little diaries of her day spiced with lovely drawings.  Her days were largely uneventful since she was poor, unemployed and without social support so it would be fair to say that the letters were not exciting but they were moving in their own way.  However, HSE social workers said they could not see the point of them and since each and every one had to be translated (something they determined themselves to be necessary) they wanted them to stop.  My office had translated the first batch of letters before they were delivered to the social workers by hand.  We said we would be prepared to translate them going forward without charge.  This was refused as we were clearly not trusted to translate accurately but quite apart from this, they wanted everything to go through solicitors.   Accordingly, at the very first opportunity, the social workers applied to court seeking to limit the mother’s letters to one letter a week.  The Judge concurred largely because of the inconvenience to the social services and the costs involved (of translating).  When the mother sought telephone contact with her daughter, the cost of providing a translator for such calls, to monitor what she would be saying to her daughter, (something which social workers deemed necessary and which despite protests went unchallenged by the Judge) was deemed to be too expensive by the court and they denied her request.  Of course the Judge held out the possibility of giving the mother access, like a carrot before a donkey, each and every time we appeared.  The price for access was her positive cooperation with social services.  She said she was engaging with them positively, they said she wasn’t.  They maintained that she needed to deal with her alcohol addiction however, they made absolutely no suggestions as to how she was to do this. It was a game of cat and mouse.  In an effort to assist her, my office went on a hunt for a polish speaker qualified to conduct an addiction assessment as to whether or not she had an alcohol problem. It was very clear to me, however, that if any professional said that she did not have such addiction, social services would not accept this since they had already determined that she did as had the court. In fact that determination was made before I ever appeared in the case.  We did find someone who was prepared to assist but such person was rejected by social services since they maintained they did not know anything about this person and needed to investigate.  More delays.  Meanwhile our client was quite literally losing the will to live.  We came up with doctors who would conduct an assessment but they were rejected because HSE Social Workers did not know them and had not vetted them despite their having recognized medical qualifications.  The Judge never seemed to lose patience with the extraordinarily slow pace of social services but he frequently, turned to us, the professionals acting for the couple, asking if we were doing enough with a strong undertone that we were not?  Social workers, through their representatives and directly outside court, would ridicule our efforts to find professionals to work with this Polish speaking family and they would get away with that, without offering any alternative other than they were looking into it.  Meanwhile these parents were not seeing their child.  Naturally, we appealed at a very early stage.  However, because the District Court Judge would schedule the case every few weeks offering the carrot that he would consider access on the next occasion, the higher court refused to allow the appeal to go forward as a priority listing. Accordingly, the appeal would simply take its place and might or might not have been heard for some months.  This meant that by the time our appeal would be heard we would in fact have reappeared in the District Court on the scheduled adjourned date. In that event, if the appeal was going forward, the District Court would have had to suspend matters until the appeal was heard.  The child would, during that time, continue in care without the parents seeing or being in contact with her other than occasional letters.   It was self defeating from our client’s point of view even though it might have made legal sense.  There is an enormous difference between the resources available to Dublin practitioners in this type of situation and those available to practitioners outside Dublin.  A clear consideration for the clients in this situation was the possibility that the District Court would give access on the next occasion before them, however, if the appeal went ahead that would not happen.  At the time of our application to the Circuit Court to shorten time to enable us to appeal, which was opposed by the way, we were scheduled to be back before the District Court the following week.  The Judge had offered the possibility of access, something that was highlighted by the representatives of the HSE to the Circuit Court even though they subsequently vehemently opposed it when we appeared back before the District Court.    The Circuit Court therefore, could not see the need to schedule the appeal quickly since they felt that it was likely that the District Court would give access on our next appearance.  They did not.    None of the literature in this area recommends a punitive approach and indeed, the HSE literature is far from such an approach.  Worthy sentiments abound but the reality on the ground is very different.
On an entirely different, though nonetheless interesting, note, I was also struck by the extraordinary sexist nature of these proceedings.  It was as if the father did not exist.  His views were never sought.  From the outset his drinking was deemed less of an issue without the slightest proof one way or the other.  No explanation was given for this. He, clearly, had also been drinking on the date of the incident that led to HSE getting involved.  However, despite the reality that his drinking did not appear to be much of an issue for the social workers or indeed his involvement to any great extent in the need to engage with them, he was never offered him the opportunity to visit with his daughter on his own during that lengthy period by either the court or by social services nor did they engage with him independently or hardly at all in fact.  I had secured independent representation for him at an early stage but my colleague who agreed to act without payment, frequently articulated to me that she might “as well not be there”.
After two court appearances and when we had become involved and were making life a tad uncomfortable in our estimation, the HSE contacted the Gardai and asked them to follow up on their enquiries with the parents.  As a result the parents were contacted by the Gardai at their home and asked to present for voluntary questioning on a bank holiday weekend.  At a pre-arranged time both parents presented to the Gardai.   The father was released quite quickly but the mother was kept in for 4 hours.  At one stage, she said she would leave and they told her that if she did, they would arrest her.  She was given no food or drink during that period and had no idea what was going on.  As far as she could determine, they were ostensibly awaiting the arrival of an interpreter.   In the late afternoon of the Saturday, I arrived at the police station enquiring about my client and demanding to see her.  Within 5 mins she was let go however, the official interpreter refused to tell me what was going on because he was finished his engagement and I could not pay him for his time.  Accordingly, we sat in my car while a Polish friend interpreted what had happened to the mother in the police station.   It seems that in the course of the “voluntary” interview with the mother, the police suggested amongst other things that she get a “real” solicitor and said they could recommend someone to her. This, despite the fact that I had spoken to them several times during the day as had my office.  Nothing ever happened as a result of this ordeal in the police station as everyone knew nothing ever would, since there was insufficient evidence to charge these people with a crime of any sort.  The purpose was to “frighten the horses” so to speak, bring her to heel as she was perceived as “difficult” and her legal representatives, even more so.    What an abuse of our resources and the organs of the state!
Eventually, after about 8 months and many court appearances, the child was returned to her parents.  During all this time and in the course of several HSE reports before each and every court appearance, of which there were many, the child would ask to be returned to her parents. Despite application from us seeking a court appointed Guardian ad litem and despite offering the names and qualifications of two such persons  to the court, one a qualified Polish social worker and the other not a Polish speaker but very familiar to the court and a retired social worker , the court refused to make that appointment.  Interestingly, at this point the children’s amendment to the constitution had passed.  Progress was made in the case after a letter of complaint on behalf of the client about the assigned social worker was sent to her superiors in the HSE and she was removed.  A different solicitor for the HSE also appeared in the case.  The change of personnel made all the difference but the proceedings were still largely conducted in an adversarial manner.  I was struck that each and every time a social worker professional would appear in court she, it was invariably she, would be accompanied by one, and sometimes two others, to spend hours standing around for no good purpose save, it would seem, to give moral support to each other.  You would have to wonder why professionals would need that type of moral support to just do their job!    One would also have to wonder how, given the courts’ concern about money and indeed the HSE’s stated financial concerns in this case, and at a time generally of scant resources and increasing demand, the appearance of two or three social workers, instead of one, hanging around the courts, is justified. 
In the early stages of this case, I sought the opinion of a Senior Counsel who specialises in child care cases.  He advised me that in his years of reading reports from the HSE in such cases, he had never seen one that was quite so unnecessarily personal and downright objectionable as the first report in our case. He was amazed and appalled.  Indeed it was the very personal nature of that report that determined the relationship between my client and social services.  It would have been exceedingly difficult for her, having suffered the pain and embarrassment of reading such a report and having it read, to have struck up a rapport with the duty social worker.  With the advent of a new social worker, the reports became a lot less objectionable in their tone and content. 
Because my experience, apart from my research, of this area was limited to one case, I was loath to write about it eventhough I was minded to do so for some time, however, I have come across a speech given by Dr Carol Coulter to the Legal Aid Board on the 20th June, 2013 in which she echoes many of my concerns.  This has somewhat empowered me, since Dr Coulter is the Director of the Child Care Law Reporting Project.  In the course of that speech she said “Among the most common problems giving rise to child neglect is the abuse of or addiction to alcohol and /or drugs. Usually before the HSE seeks a Care Order the parents, commonly the mother, are given an opportunity to seek treatment for addiction.  Often a Supervision Order is put in place.” In the instant case, the parents were not given any opportunity to seek treatment for addiction, indeed ,no suggestions were made as to what would constitute treatment until several court appearances had been made and they had not seen their daughter for some considerable time.  Equally, the suggestion of a Supervision Order never arose though it was proposed by us when we arrived in the case and rejected.    Furthermore, in the instant case only one incident was actually brought to the attention of the HSE and arising out of that incident no actual harm had come to the child nor was there any evidence produced that she had ever been harmed. Of course, given the behaviour there was a possibility and there was also some other causes for concern.   However, it is still a fact that the reports of the HSE describe the child as being in good health, bright and well behaved.  Now I do acknowledge as I have previously that I did have concerns about the drinking of this couple and certainly I don’t think that the HSE’s involvement with the family was unwarranted as such however, the manner of involvement particularly in the first 6 months or so was heavy handed, lacking compassion and extremely adversarial.  The method was familiar to me.  I went to boarding school.  It was that old tried and tested ‘nun method’ of break their spirit first with the suggestion of possible kindness to come and then come forward with a cookie, but only after the spirit is broken.   At no stage was the issue raised before the court of whether or not taking this child into care was a proportionate response.  Even allowing for the possibility that it might have been felt it was, how could it ever be justified that the parents did not see the child at all for 8 weeks and their contact with her was limited to one letter a week.  And what about the child –how was she damaged by having no contact with her parents for that length of time? Social services kept emphasising that she was completely understanding of what was happening as she had excellent English but it never occurred to them that as a Polish child who had spent the earlier part of her childhood in Poland, her emotional language was going to be Polish.  Dr Coulter, in her talk, also asks the question   “Is a Care Order, for example, a proportionate response to the problems these children have, or would their needs be adequately met by a Supervision Order with directions for certain changes to be made by the parents”?  I would contend that in this case a Supervision Order with such directions would have been a proportionate response particularly after the initial emergency order.  I note that Dr Helen Buckley, a professor of social work and social policy in Trinity College and a member of Dr Coulter’s Oversight Board, stresses that the issue in child care proceedings should “not be addiction per se but the impact of the addiction on the capacity of the parents to care for their children”.  I would contend that in my case it was the addiction per se that was considered both by the HSE and the Judge as being the issue and not the capacity to parent as such.  Dr Coulter comments in her talk that she was struck by the number of cases “where the children involved have little visibility in the proceedings”.  Indeed! 
I started off this article by commenting on the fact that most of the people involved in these proceedings are from poorer backgrounds and my only evidence for this was how few private practitioners are involved in such cases.  Like most solicitors I suspect, I grew up in a fairly comfortable, middle class family.  However, I can remember some of my friends, coming from professional backgrounds, arriving in school unwashed and unfed due to parental drinking or serious parental depression and pill popping.  Occasionally,  all three.  I can remember the community regularly sheltering those children when parents were not around.  Drinking and drug abuse is certainly not confined to the poor and marginalised.  It was not then and it is unlikely that it is now.  Dr Coulter says “Because the majority of children whose cases come before the child care courts are from poor and marginalised backgrounds it can be difficult to hear their voices in the process.  The Legal Aid Board does sterling work in representing the parents in care proceedings, but inevitably the professionals in the HSE and their lawyers, who are in court every day of the week, will be better able to articulate what they want from the court than will people who may have difficulties with legal concepts or even the English language”.  Certainly the issue of ensuring equality of arms between the parties is very important, however, it does not go far enough in my opinion as it does not raise the issue of why so few middle class families are before the courts in this area.  Are they all so much better behaved now than they were when I was a child, I doubt it.   
I have raised the issue of over familiarity between professionals, a cosy cartel.  Certainly, when I appeared out of nowhere, so to speak, I felt that there was resentment.  The apple cart was upset.  I don’t think I made that much of a wave, certainly not what I would have liked to raise, if I had more resources and a more resilient client who was prepared or able for the row, none the less, I was treated like Attila the Hun.  I am very much of the opinion that these cases are frequently handled by practitioners as a “matter of course” and I would be strongly of the view that on both sides of the equation, the system would benefit from the injection of some new blood.  I do not advocate replacing persons of experience as their experience is invaluable, just adding to the pool.  I also do not want my remarks to be interpreted as criticism of legal aid who practise frequently under trying and under resourced circumstances.  I know that many of them have defended their clients up to the High Court and the Supreme Court which is why I was able to read judgements in these matters.  As Dr Coulter indicated they do a great job however, that does not take away from the need and responsibility we have to examine their role and how best it might be carried out.
I am an experienced collaborator and mediator, however, at no stage was I ever engaged by any of the professionals involved in this case in a truly problem solving way.  Indeed my attempts and those of my office to resolve problems in the case by offering help where we were in a position to give help for example to translate letters thus saving time and expense, actively seek Polish nationals who could assist with alcohol addiction assessment or who could represent the child, were greeted with suspicion and derision.  The only time the professionals on both sides met was outside of the court in uncomfortable and frequently crowded circumstances not at all conducive to problem solving.   Dr Coulter suggests that “Where parents are involved in the process every effort should be made to come to an agreement with them about the best way forward for them and their children before orders are sought.  Mediation clearly has a role here.” I completely agree but my actual experience is very far removed from this.  Even when more reasonable and problem solving personnel presented in the case,  it was at best adversarial bargaining rather than true problem solving.  I would suggest that unless social workers involved in this area receive entirely different training than currently, quite apart from the lawyers, it will be impossible to achieve this goal.  It is not enough to send professionals on weekend courses and expect them to change the habits of a lifetime.  Change has to be far more fundamental than that and it needs to start in University and continue all the way up.   
Finally and because this is already a long article, I might as well mention the issue of the foster parenting system as well.  Generally speaking, I support the idea of foster care, particularly as an alternative to institutional care, however, I do not support it as a career.  We are much given to extolling the virtues of those who agree to foster and that lavish praise can often prevent us from asking some necessary questions.  Should some families have three and four children, as well as their own, at a time?  The fact that placements can be hard to find does not mean that we should not ask that question.  The qualifications to foster need to be a lot more transparent and we need to actively look for families to foster from particular ethnic backgrounds.    In the course of my proceedings I asked the court if the parents might have some contact and communication with the foster parents as it appeared to me that there was unnecessary animosity between those parties.  Parents could have explained some of their traditions directly to the foster parents (especially as the child was spending Christmas with the foster family).  This would have helped with understanding all round.  Occasionally in the reports of the HSE the foster parents’ views were quoted and frequently, they were very positional and unhelpful.   Those comments, which should not I feel have been presented in this manner or at all, caused a lot of misdirected anger between the parents and the foster parents.   The Judge greeted my suggestion of communication between parents and foster parents with some interest and said it might be considered though he took no action as such.  I could not but note at the same time the expressions of the social workers in court, even the ones just there for moral support, when the suggestion was made, which were aghast and incredulous, followed by violent head shaking at such a preposterous idea.  Why should this idea be so preposterous? I know there are certain instances when the last thing you would want is contact between the parents and the foster parents due to the nature of the case or the particular record of the parents but this was not one of those cases and it was never even considered.  Indeed when we finally did get access after all those weeks and it was once a week for a few hours for quite some time, it often had to be renegotiated because the date or time did not suit the foster parents.  Imagine the frustration if you are waiting to see your child for those few hours once a week and then it is changed.  That was not just once,  it was several times including significant cultural days for the parents which were changed at the request of the foster parents.  The foster parents also complained about having to travel to bring the child for access and how it impacted on their other foster children, they had a few and their own children.  I realise that there are many wonderful foster parents and I would be the first to acknowledge that without them our child care system would grind to a halt but they are paid for their work albeit that work is probably, frequently, very difficult.  It seems worth mentioning that it was not that difficult in this case as at all times the child was very well behaved and had good English.  Incidentally, the foster parents forgot to collect the child from school twice precisely the incident that gave rise to the involvement of the HSE in the first place.  You have to laugh even if it not funny ha ha.
I frequently reflected during the case, and many times since, the difference it would have made to my client had social services considered using some of the money, that might be paid to foster parents,  to make my client’s life a little easier,  at least in the short term .  This family lived on very little and had no idea of any social welfare entitlements that they might have had.  Accordingly, the mother had a chronic medical condition which caused her pain and discomfort and which went untreated as she could not afford the Doctor and had no medical card. She and the father were constantly criticised both by the social workers and from the bench because they had such poor English and seemingly had done little to improve it, without any consideration of how this couple would or could avail of English language classes and the practicalities of that for them.  At no stage did anyone tell the mother how to go about applying for a medical card and that was eventually left to my office.  Criticism was made, and indeed written, in one of the reports about the child’s old fashioned clothes or that the clothes were old and even that they were smelly, without balancing comment about the resources available to this couple. 

I wish I could end on an upbeat, funny or positive note.  The whole business was grindingly sad and depressing and I can only thank my own friends who listened to me rant and rave in the course of this case and put up with it.  Otherwise, I would probably have become sad and depressed myself.    

Thursday, September 12, 2013

Adoption – a different perspective.

Adoption – a different perspective.

It is several decades since Ireland decriminalised homosexual behaviour.  It was, however, many years after that before we were prepared to take the next step forward and allow for the registration of civil partnerships.  At this stage, it would seem from recent polls that we would be happy to allow gay and lesbian couples to marry.  I predict, however, that the issue of whether gay and lesbian couples should or should not adopt children will prove to be a much thornier issue.  At this point one could hardly say there is a raging debate going on but there are some rumblings.  Gay and lesbian couples cannot adopt in Ireland anymore than cohabiting heterosexual couples can, however, in practice this is far more restrictive on gay and lesbian couples than it is on heterosexual couples.  Of course, it is arguable that whether or not a person or persons should be eligible to adopt is not about their rights as much as it is about outcomes for the children.  I agree with that and I would hold that judged on those terms gay couples should pass the test of eligibility with flying colours.
Despite adoption having been around for a very long time, it is still a controversial subject.  Many people are strongly opposed and some religions and cultures have no such concept.  Abandoned children are, however, a reality and we as a society have an obligation to provide appropriately for such children.  International Adoption is far more controversial than Domestic  Adoption.  There are probably many reasons for this, some good and some not so good.  I have no interest in exploring the issue of race and culture as it arises in International Adoption. Of course cultural and race issues arise and it is important that adopters are aware and sensitive to them but do I have problems with black couples adopting white children, absolutely not or vice versa.  Frankly, I think that race and cultural issues are largely trumped up by social workers who may, in fact, be opposed to the concept of International Adoption for unmaired personal reasons.  The biggest difficulty with International Adoption, as I have commented in previous articles, is the huge logistical problem of ensuring that the children presented for adoption are legitimately abandoned and not kidnapped or targeted by profiteers.  Admittedly, there may be some couples who are so desperate for children that they could not care less how or why they became eligible for adoption, but I honestly think such couples are largely anecdotal and the stuff of adoption opponents’ arguments.  The vast majority care very much and go out of their way to do things by the book.  In doing so, they have to rely on the authorities to carry out the necessary enquiries and ensure everything is above board.  Other aspects of adoption are also controversial as, for example, single parent adoption and gay and lesbian couple adoption.   By contrast standard married heterosexual adoptions of children particularly domestic adoptions are hardly questioned.  Perhaps they should be?
It is assumed that where you have a childless couple and a child looking for a home and all other things being equal, that this is a match made in heaven.  Is it?  Has the couple grieved for the loss of their fertility and the loss of the birth children they will never have?  How do we measure their grieving?  Would they ever have considered adopting if it had not been for their fertility issues?  Little account is taken of the fact that the childless couple did not chose to adopt and certainly that it was unlikely to have been their first choice.  In fact those assessing suitability for adoption are much happier, generally speaking, with an infertile couple than they are with a couple who might or might not have a birth child at some point.  There are some good reasons why that should be so but equally there are some good reasons why making the choice to adopt as and for itself, might be a very good way to assess the ability of parents to parent adopted children which, in my view, presents different challenges and is, in fact, quite a different task to parenting birth children. It seems to be unfortunate that the social workers carrying out assessments do not put sufficient weight on the motivation and commitment to parenting an adopted child as a matter of choice.
Over the years, both as a family law practitioner and on a personal level, I have encountered groups formed to campaign for the right to adopt children from parts of Eastern Europe and from Russia at a time when it was relatively easy to adopt from China, Vietnam, Thailand and parts of Africa.   I have questioned, I think legitimately, why, when children are available from those other countries, such parties want to adopt children from Eastern Europe and Russia? This was most especially so when frequently to adopt from Russia, for example, cost the equivalent of a small mortgage   It is my view that a motivating factor for many such couples was the possibility that such a child would be more likely to present as a natural child than a child from Asia or Africa.   Of course, this was dressed up as being less problematic for the child but in unguarded moments it was quite clear who was really benefiting from this choice.  I do not wish to blame the couples for these choices but rather those who determine eligibility and who do not place themselves and their own issues under scrutiny or question their own assumptions.  One such assumption is that heterosexual married couples who have fertility issues are best placed to adopt a child.
Adults who chose to adopt as a first or primary choice, can very often go into the process of parenting with more realistic expectations and be more motivated to deal with problems that they will encounter with their adopted children as and when they arise.  It is well documented, though frequently denied, that adopted children can spend their whole childhood with a deep seated alienation typified by a sense of “wrongness” or “disconnect”.  They feel like they do not belong or that their family is somehow an ill fit or wrong in some way.  This has nothing to do with race, which only serves quite usefully in fact, to make the problem obvious, all adoptees experience a version of this.  Adult adoptees will often say that they felt their adoptive mother, in particular, was somehow  “wrong”.  These feeling are not rational though they may be capable of being explained rationally. Adoptees will quite often, at the same time as they are expressing these feelings of “wrongness” also tell their interviewer how brilliant and wonderful their adopted mother was.  Such feelings arise, it is claimed, because the child instinctively knows that the relationship they have with their adoptive mother in particular is not the same as the relationship they would have had with their birth mother.  The result is a profound sense of alienation which frequently, though not invariably, manifests in dysfunctional relationships.   Readers familiar with the literature on adoption will know that this is referred to in the literature as the “primal wound”.  Many researchers and writers believe that the primal wound is unavoidable and that all adoptees suffer from it.  Accordingly, the relationship between an adoptive parent and an adopted child is by its nature more difficult and challenging than is often the case between a functioning birth parent/s and a natural child.  Adoptive parents thinking or wishing to replace lost children with adoptive children can, therefore, be in for a rude awakening and not be able to cope.
In an article I wrote on surrogacy in November 2011 I stated “it seems to me too, that adoption should be something you want to do as and for itself and not something you simply do because you have no other option.”  I went on to say that in my world it would be “one of the tests for suitability” to adopt.  I apologise for quoting myself, it would be so much better if others did that, however, the quote is directly on point.  Research has shown that gay couples in particular and lesbian couples somewhat less so, are motivated to adopt as the route of choice to parenting.  Research would indicate that gay fathers in particular do not have any expectations of being natural parents and will frequently opt for adoption as their first choice.    Yet the people who experience the most difficulty in being deemed eligible to adopt in almost every country are gay couples, lesbian couples and single people precisely the people who frequently opt for adoption as their primary choice to parent.  Such parents are less likely to have fixed expectations and stereotypes of how families and children should be and act.  They are more likely to be open to allowing the family as it is to evolve.
Of course there is no perfect answer here and some of what I have said may seem very unfair to adoptive mothers and it is.  However, this is not about fairness.  Fairness is a rational concept and not a very exact one at that since it is largely subjective.  What I am saying is that we need to look and who is and who is not most suitable to adopt and not just proceed on the basis of unexamined assumptions and prejudices.  To be abandoned as a baby by your birth mother at birth or shortly thereafter is likely to have such a profound effect on a person’s psyche that we are only glancing at the reality rather than truly appreciating what is at issue.  We have operated for decades and continue to do so generally speaking with the unexamined assumption that babies,  particularly very young babies are like “tabula rasa”, an assumption which we now know to be completely wrong.  On that assumption we have concluded that a baby, particularly a very young baby, can be adopted successfully and grow up with a sense of belonging and well being, leading to their being productive members of society.  However, if the assumption that a baby is a “tabula rasa” is incorrect, which it is, then how well founded are any of our assumptions?  New born infants can pick out their birth mother from other persons.  Why is that such a surprise?  We recognize in so many other ways besides sight and memory – smell, touch and sound are all potent factors in our ability to identify.  A child in the womb has a profound connection to its mother.  Theirs is a truly symbiotic union.  For nine months or thereabouts they operate as one, never apart not for a second, feeling, hearing, tasting and experiencing together.  How could we ever think that such a connection is not profound?  Birth mothers know it is with every fibre of their being.   The task of the birth mother in the first year of life will be to slowly introduce the baby to the reality of separateness and indeed to reacquaint herself with the idea.  For both of them this task of separating will be gradual and deeply affecting.  When a baby does not experience this gradual separation he or she will suffers a very deep wound both emotionally and developmentally which then frequently manifests in separation anxiety and alienation.
Hard as it may be for women to accept, the reality is that an adopted child may well find it easier to relate to a Dad or Dads whose presence does not in and of itself convey that deep sense of “wrongness” and who are not seeking to replace the birth mother.  It is interesting that research has shown that a growing number of birth mothers are choosing gay couples to adopt their birth children so that they as the mother will not be replaced.   It is my experience that many men, particularly educated men, resist the notion of a profound bond between baby and birth mother since if effectively marginalises them, at least for the first few years in the parenting process.  It also presents the possibility that the connection with Mum short or long term is on a whole other level and will always be.  It is interesting the many adoptees search for their birth mothers but have little or no interest in meeting their birth fathers.  We have to stop trying to be politically correct about such things.  Not everything can be viewed in the light of reasonable and fair. These are just conceptual frameworks by which we measure or organise our world.  There are other measurements.  The fact is that gay Dads make excellent adoptive and foster parents.  Extensive and collated research in both England and the USA indicates that this is the case.  What I am postulating is the possibility that they may in fact be a better choice as parents in the area of adoption and fosterage.  We have always made the assumption that one size fits all and a Mum and Dad is the best way for raise a child.  As RG Collingwood the Philosopher once amusingly stated “People are apt to be ticklish about their presuppositions”.  I doubt therefore, that the thrust of my argument here will meet with universal approval but I would hope that it might inspire some re-examination of our own presuppositions.
In Ireland, gay and lesbian couples, despite being able to form civil partnerships at this point are still not able to adopt.  In countries where it is permitted to do so such couples succeed in very small numbers indicating significant hurdles as opposed to heterosexual couples.  However, I want to stress that I am very much in favour of hurdles and high standards being applied to test for eligibility to adopt for all applicants.  For example, out of an annual average of 4000 children available for adoption in the UK , only 60 gay male couples had adopted and a similar number of lesbian couples.   This is a great pity, in my view, where it is provable based on current standards that they are as good as any other type of couple adopting and based on my thesis here, are possibly much better.   They show a great deal of flexibility in the type of child they are prepared to adopt, frequently adopting the more difficult to place older children or special needs children.  Now while the cynics might have a less complimentary explanation for these choices,  I would suggest that it is at least possible that their choices are more open because they are not seeking the create an ideal Mum and apple pie type family and they are lost replacing a lost perfect child.  Gay parents may bring talent to the table not available to straight parents.  1) They are unlikely to be grieving for their lost fertility.  2) They are unlikely to feel that their adopted child is second best (in fact I would suggest that when gay men or women overcome the considerable hurdle that will be in front of them to adopt, they are most likely to feel that they won the lottery.  3 )They are unlikely to see adoption per se as a reflection of a failure perceived or otherwise, on their part.  4) They are unlikely to have a standard vision of how family life should look or children should be or not be.
Many arguments have been put forward against gay male adoption.  I am well aware of them.  I am simply going to dismiss out of hand the rampant confusion between paedophiles and homosexuals and state that anyone with an open mind can clarify this for themselves easily and should not remain confused for very long.  These are two completely different things.  We would not tolerate a suggestion that all heterosexual men are female child abusers, though some clearly are.  Equally, homosexual men are not all paedophiles.  Studies show that there is no connection between paedophilia and adult male homosexuality.  Only 2% of convicted child molesters identify as gay.
The facts are that the success of adoption for adoptees tends to lie more in the area of the economic security of the family, the functionality of the family as a whole i.e., healthiness of the relationship between the couple and whether or not either parent suffers from depression.  I am sure these factors are indicators for the well being of any children however, when you recognize that for an adopted child security is key arising out of their abandonment, you can see immediately why these issues would be fundamental to their well being.  Incidentally women as a whole tend to suffer more from depression than men and gay men in stable relationships tend to have a low recorded incidence of depression.    One US study in the University of Texas at Arlington and East Carolina concluded there was a significant reduction in problems experienced by adoptive children when they were placed in families who were economically stable, that the adoption process itself was fluid and that the family dynamic was functional.
It would be a tremendous pity if Ireland was not to avail itself of the great resource that gay couples provide to society both as foster parents and as adoptive parents.  Indeed I note that gay couples have now quietly surmounted the hurdle of being accepted by the authorities as foster parents.  I welcome this development but I have to ask why gay couples are acceptable as foster parents and not acceptable as adopters.  If the wellbeing of children is involved, surely the same standards apply to all.  If children deserve the best and they do, why would we have different standards for children available for foster care and for children available for adoption.  There is a great need for children in the foster system for years to be available to be adopted by those with whom they have been placed in long term foster care and that includes , obviously, gay couples, lesbian couples and single people where appropriate.

Friday, July 12, 2013

Family Law: Assumptions and Myths

I always thought that one of the reasons why so many of my clients ask me questions about our family law system that suggest an enormous number of people have strongly held incorrect views about what happens in family court, is because our cases are heard in camera (i.e., in private, meaning no members of the public and limited if any reporting). However, it appears that the same misunderstandings and stories abound in many of the US jurisdictions, England and Australia. I am sure if I was multi lingual I would probably find that they are everywhere and astonishingly they are remarkably similar in all of these places. Two of the strongest opinions held by the public and frequently expressed in public would be that: 1. Men seldom if ever get custody of their children and, 2. Men lose out financially and property wise in family court compared to women. It may come as a surprise to learn that people in Britain, Australia and many parts of the US have exactly the same perception despite different systems, legislation and much longer experience in the area of separation and divorce than we have in Ireland. As a general comment on the two opinions expressed above, I would say that women often have the same view as it applies to them i.e., that they will automatically get custody of the children however, women also feel in common with men that they will get a raw deal in family court financially and property wise. So what about those two opinions – are they true? Most men now get joint custody of their children post separation from the family courts. It is rare for that not to be the case. This means that the court recognizes that the children have a home with both parents. What it does not mean is that the children will spend precisely the same amount of time with each parent. Unless you are the ex next door or upstairs there is really no practical reality in that idea. Joint custody does not mean 50-50 when it comes to time spent with the children. It does mean that the children live for some time each month with both parents. What joint custody also means is joint parental responsibility. There is a tendency to focus on rights rather than responsibilities often to the neglect of the latter. Generally rights follow responsibilities. In other words a parent who is behaving responsibly and taking responsibility for their children is very likely to be accorded all their rights by the court, collaboratively or in mediation. Parents who behave responsibly do not involve their children in the conflict either as witnesses or directly if there is conflict because they know that this damages children no matter how upset they are. They do not refer to the other party as “your mother” or “your father”. They do not give their children gritted teeth messages for the other parent. They do not phone each other when the children are present shouting and roaring ensuring that the children probably overhear or that the parent with the children is upset and the children can see that. They do not make disparaging remarks about each other directly to the children or in their hearing. They try and keep their emotions in check around their children so that the children do not associate pleasing Mum with refusing to visit with Dad and vice versa. Remember your children did not ask to be born, they owe you nothing. If you are very lucky, behave yourself like a good parent and raise them properly they may see themselves as having a responsibility to you in your old age. For now, you are responsible for them. A good responsible parent understands that even if the other parent is behaving badly, the children still deserve one mature adult in their lives and they rise to the occasion. It is very important, however, to remember that parents have obligations and social matters which will take them out of the home at varying times and this will not change post separation and furthermore, children have varying needs, their own obligations and social matters which also require them to be out of the home at various times. This means that generally it is not possible, even if it is desirable, to divide children’s time on a 50-50 basis. Everyone’s needs and commitments have to come into the balance and be given attention in determining what will work and what will not. Parenting plans, to be of any value, need to be carefully drawn up with the help of an expert. This is most especially so in the first year or two after separation when emotions are still likely to be fairly raw, trust at an all time low and the children have an enormous need for secure arrangements so they can adapt. Lawyers need to start to use the phrase “parental responsibility” as an umbrella term when discussing these matters with clients and in public rather than the terms Guardianship, custody and access. This phrase puts the focus where it needs to be and less on the idea of ownership and rights which seem implicit in the notion of custody and access. Guardianship as a concept simply does not work since very few people seem to understand it. In summary there is no presumption by Judges or in law that mothers always get the children. Women frequently, but not always, have more overnights than men and the children tend to have their base with Mum. Quite often this reflects the fact that arrangements in place pre separation remain, in so far as possible, in place post separation. Do women do better than men in financial terms in a separation or divorce? Not in my experience and the research would indicate that this is not the case. Quite often, though not invariably, women have sacrificed their careers to raise their families either by taking a back seat at work in terms of promotion, opting for part time work or giving up work altogether. Seldom, in my experience, do men make the choice to stay at home because of a wish to be involved more directly in the raising of children. In my experience, men who stay at home or work part time do so either because they want to work from home, ie start a business at home, were made redundant or lost their job and work part time because they are supplementing a business scheme or because that is the only work they could get. In general, therefore, women tend to have the primary responsibility for child rearing in the family and that is not in any sense to disparage the role of men but rather to state what is the “norm”. Many detrimental economic consequences flow from having primary responsibility for child care. Accordingly, women, on average, tend to earn less than men both because of the lifestyle and family choices the couple have made but also because that is still the case in fact. Therefore, women do not come into the family court in an equal position and a 50-50 split would not be reasonable or fair in such circumstances. Equality does not always mean 50-50. Research shows that men tend to recover more quickly financially following on from a divorce. Generally speaking, men have been in the workplace from the beginning of the marriage with no break and not only do they go to work, they also tend to make contacts associated with work and to nurture those contacts either on the golf course, drinks with the lads, squash, business lunches etc., very little of which, women will have any time for since a woman working part time is usually squashing a full working day into the hours she has at work and will eat at her desk or on the run and every moment not at work will be spent with her children, collecting them from school, helping them with their homework, shopping and getting meals ready, doing laundry, cleaning etc., Her social life, if she is lucky enough to have one, will probably consist mainly of the people she runs into in the supermarket, at the school drop off and those neighbours who drop into her home and chat to her while she hopes to God that they go home soon so she can get on with what she has to do. Women who are at home full time will, on returning to work, suffer financially compared to men of similar age, have huge child care costs, logistical difficulties which curtail their social lives to a minimum and few contacts to assist them to better jobs. Women who have full time careers and growing families are in a minority and will be treated separately by a court in such circumstances, each case being looked at on the facts of that case. Men recover financially because they are more likely to have a career as opposed to a job and a promotional path accordingly, they have good contacts, a track record at work and a track record financially all of which is very important to recovery. Precisely because women are often considerably less well off when viewed individually as opposed to being part of a couple and because they will continue to have, most likely, primary responsibility for the children, they need more of the financial resources of the couple than a 50-50 split would give them. However, if a woman does have more individually than her partner the courts will look at that very differently. In summary therefore, women do not “scoop the pot” when it comes to divorce. Clients often think and frequently express the view that if the divorcing party is in the wrong, they should pay. A number of false assumptions are bound up in this. If by pay, punishment is implied, that is not going to happen. There is no punishment for wrong doing in family court except in very extreme circumstances, so extreme in fact, that as a family law practitioner I have never encountered sufficiently extreme circumstances to warrant punishment from the court. When a client refers to wrong they generally mean that the divorcing party is now in another relationship. A new relationship will not be punished by the court and the only relevance it has to their deliberations is whether or not it is directly affecting the children which might affect custody or access issues and if the relationship is depleting financial resources of the marriage. Otherwise it has no real significance. If by “pay” the client means that the divorcing party should pay all the legal bills then that too is not going to happen. Nowadays it is very rare to get an award of costs against a party in family cases and that applies right across the board no matter what the circumstances of the separation or divorce. Another aspect of this issue is the idea which clients occasionally have that if one party want the divorce and the other does not, then the party who seeks the divorce should foot the bill for both. Sometimes, if a party wants a divorce urgently they may facilitate agreement by offering a contribution to the other’s costs but that is generally as far as it goes and it is by no means common nor is there any legal obligation to do so. The idea that the divorcing party should pay either because they are in the wrong or because they are the one asking for the divorce is often combined with the belief that divorce requires the consent of both spouses. The idea is that if I withhold my consent, he/she cannot get a divorce and if he/she wants my consent then they will have to pay for it. Separation and Divorce cases do not require the consent of the other spouse. A party can apply to court regardless of whether the other party wants to separate/divorce or not. One of the statements frequently made by clients not necessarily to solicitors but about solicitors is that it does not make any difference what solicitor you get to deal with your case. Nothing could be further from the truth. Solicitors are not all the same, nor are they all crooks or any of the statements commonly made. Solicitors, particularly in family law, operate from widely varying philosophies and approaches to legal cases. It is important to carefully select a solicitor who has the qualifications, philosophy with which you are most comfortable. Before leaving the area of marriage, I would like to nod in the direction of another myth which is that the courts have a formula to work out appropriate maintenance and child support. They do not. Spousal and/or child support is worked on the basis of the facts of each particular case. The court has general guidelines about what is to be considered in determining these matters but there is no formula. Judges have a wide discretion in such matters. Non marital families also have their fair share of commonly held and usually false assumptions. Unmarried fathers often believe that if their name is on the Birth Certificate this fact gives them rights. That is not true in Ireland. In Ireland a single father has to apply to be appointed a guardian of his child and no difference is made in that regard whether the father has been or is living with the child as part of a family or not at all in terms of having to apply. However, a Judge considering the issue of Guardianship would likely take a very different view of a father who has lived with his child in a family for a period of time to a father who has had no relationship of that nature. An unmarried mother is automatically a guardian of her child and she can agree to the father being appointed and they can sign a form to that effect. The form needs to be sourced from a solicitor, from a District Court Office or from some of the websites dealing with family issues. It is very important to read the instructions for the completion of the form carefully. If you plan on having an ongoing relationship with your child and being a responsible parent then it is very important that you apply for guardianship if you are a single father and if there is no agreement. This is particularly so if there is any possibility that the mother might move out of the country. I cannot stress this enough as you must either have a court case pending or have been appointed a guardian to be afforded rights under the Hague Convention in relation to child abduction. Occasionally solicitors will also be informed that the client believes he has no obligations to his child because he is not on the birth certificate. That is not true. The child’s mother can still look for child support from the father whether or not he is on the birth certificate. Clients often articulate that they want to go to court because there is a principle involved. My late father would often remind me in the context of driving that it was no good being right if you were dead. In family cases it is never worth going to court on a point of principle. First of all, it is expensive, emotionally draining and time consuming. Secondly, the courts have limited time to hear cases and want to deal with facts and make decisions not listen to points of principle. Thirdly, your family will be even more alienated and less able to transition as a result of the exercise which in turn will result in poor communication, conflict and dysfunctional children. Related to the point of principle but not quite the same is the idea that I want justice. Justice, like beauty, is in the eye of the beholder. Over the years I have found it very hard to explain to clients why child support and access are not co-dependent. In other words, if the supporting parent stops or arbitrarily reduces the maintenance without court order then the other parent can refuse access. Courts can take a dim view of this behaviour on the part of the custodial unsupported parent. They do not think that access and money should go together. Outside the judicial system, however, it remains the case that fathers who support their children within their means tend not to have access problems. Of course, what is within your means from your point of view and that of your spouse may in itself be a source of dispute and I should perhaps better state that spouses who support their children to the best of their ability tend not to have access problems. Occasionally people think that if they have broad agreement with their spouse, partner or other parent then they do not need a lawyer. You do need a lawyer to draft your agreement or to look over what you drafted yourself before you present to the court. Lawyers have a check list of what needs to be sorted and you may overlook something important that will cause you problems in the future. In addition, lawyers know the correct way to word agreements to make them stick, that is their profession. Penny wise would be pound foolish in this instance. Once the lawyer has looked over the agreement then you can always present it yourself in court if you wish. Often people fear that if they go to a lawyer he or she will upset the agreement. That is a little like not going to a Doctor because he/she might find something wrong with you. A lawyer will not necessarily upset the spirit of your agreement but may want to make revisions to wording or to add something overlooked. If you pick your lawyer with care as outlined above there should be no problem. It is also important to note that one lawyer cannot represent both parties even in a consent or settled case. It is worth remembering that most family cases do not go to court. The vast majority of cases settle. It is far better for families to try and organise their own affairs with the help of trained professionals than to have decisions imposed on them from outside. Start trying to resolve your affairs early and give careful consideration to all issues that need resolution. Above all conduct yourself with sensitivity to your children and remember the future well being of all concerned, not least your own.