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.

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.