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.

Thursday, November 14, 2019

Child abuse allegation

There is no doubt that our increased focus on children, their needs, rights and our duties toward them are a positive development. It is a long way from the position we tended to have less than 50 years ago where we felt matters concerning children were private and best kept to the family.  We need, however, to be careful that we are not just paying lip service and there is very little real back up to our intentions, good though they may be.  We continue to place a heavy responsibility on organisations such as Tusla but we do not increase their funding to allow them to adequately deal with their new responsibilities and to secure the necessary retraining.   Nonetheless, we continue to have high expectations of what they can deliver.  We are also inclined, it seems to me, to implement reforms but not to examine in any depth the pros and cons of such reforms and their implementation.  In other words, we like to feel good about ourselves and once done we seldom want to hear or deal with the problems and are aghast when predictably things go wrong.  In my lifetime, I have seen this played out several times.
It is increasingly obvious that one of the downsides of our current approach to the welfare of children is the fall out from falsely levelled complaints to the child authorities.  Unfortunately, we only have anecdotal evidence to fall back on regarding this, however, every solicitor working in the area of family law can tell some tale about the disastrous impact of false allegations of child abuse. I have dealt with foster parents falsely accused whose livelihood was disastrously impacted as a result not to mention their reputation and standing.  Ireland is a small country and this type of scandal does not remain under wraps for long.  I have also dealt with family law cases which are held in camera (i.e., in private) and where such accusations were either levelled or implied in the course of the proceedings.   The outcome from such accusations is likely to be an impaired relationship for one parent with his/her children.  I don’t think it is unduly sexist, simply realistic, to say it is usually “he” in these situations.   It is an easy accusation to make and the stench it leaves sticks to the accused long after the authorities have parked the case.
One of the biggest difficulties for a parent accused of child abuse is that there is little he can do to defend himself as the first reaction of all concerned will be to remove him from contact with the alleged victim.  Of course, this is entirely understandable, but it does mean that the parent is, in fact, proving his innocence from a guilty position rather than the reverse.  One of the things that are often said is that whatever we have to do to protect children in these circumstances is ok but is that true if in protecting children we make it easier to make false accusations in situations where there is an advantage in doing so.  False claims of child abuse sway custody proceedings and affect relationships.  It is noticed and remarked on by practitioners how false allegations often correspond with visitation and custody disputes.  It has also been said that as family law becomes less contentious and more orientated towards peaceful resolutions, a bitter or angry party can resort to extreme behaviour to make themselves feel better and one such type of behaviour might be to level a false accusation.  I do not know if this is necessarily true, but we need to examine it.  Perhaps there is some need for the catharsis of a good old purge.  When a spouse is bitter and angry about the breakup and perceives that the other spouse has behaved badly and is getting away with it, they can find the reality that bad spousal behaviour has little impact on separations and divorce outcomes, very hard to take.  I think that people who are locked in a conflict situation with someone they formally loved can begin to see that former loved one through a distorted lens. Litigation in and of itself can provoke anger and the need for revenge.  I often hear that one party finds the other unrecognizable since the break-up was announced.  The hurt and confusion of a breakdown combined with the feeling that the other party is unrecognizable can and does give rise to a breakdown in trust and can then evolve into full-on paranoia.  Of course, some people make the accusation knowingly and do so to get rid of the other party entirely from their lives or to punish them for what they have done.  And then there are these others that I feel exist who are not directly culpable but rather delusional but delusional or not the consequences for the accused parent are such that we cannot just pass over this.
And so, what do we do about it?  We cannot let people be falsely accused, their lives blighted with no redress.   It’s astonishing how quiet the world is about this but then when you consider the opprobrium in which child abusers are held, it is perfectly understandable why those accused falsely would not mount campaigns around this. People love the saying “there is no smoke without fire”!  This issue is receiving little attention in Ireland but has come in for a lot of professional attention in the USA.  We need to consider sanctions to deter the perceived advantages of making a false allegation without preventing legitimate complaints being made.  That is not an easy balance but we cannot simply wash our hands of it as if false accusations were just collateral damage.  The wrongly accused person may be subject to exclusion by friends and family because of the allegation.  Employment and future career prospects may be impacted.  Allegations can send detrimental thoughts into the minds of children causing permanent damage to a child’s relationship with the accused.  Because of the need to protect the child as soon as an accusation is made, access will at the very least be supervised and the effect of this on a child will likely be to leave him or her with the impression that they are not safe with the accused parent.  False accusations make it harder for real victims and false accusations are never in a child’s interest, on the contrary, they are directed against the best interests of the child.
It is not beyond legal minds to define frivolous or vexatious complaints giving rise to a false accusation of child abuse in depth.  Such a definition would embrace the circumstances surrounding the frivolous or vexatious conduct so that good faith allegation would not be caught in the net.  If parents make allegations of child sexual abuse or other types of serious abuse when they are in fear of losing custody, time or control of their children to another qualified parent then the existence of severe penalties were they found to have done so knowingly would act as a deterrent.
In Family Law, the Judge is primarily charged with adjudicating the case with any dependent child’s best interests to the fore.  False allegations need to be reviewed under the principle of the recognition of the best interest of the child.  We should empower the court to sanction if it becomes clear in the course of a hearing and under the legal definitions that a false accusation has been made.  Those sanctions should reflect the seriousness of the matter as outlined above and need to send a very strong message.  The aim of the law should be to protect both the wrongly accused parent and the best interests of the child involved.

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