RTE 1 Radio with George Lee -' The Financial Fallout of a Relationship Breakup ' 15 February 2014

There was a lot of romance in the air for Valentine's Day yesterday, but what happens when the love birds stop singing? To look at the financial fallout when relationships fall apart, we're joined by Frank Conway of the Irish Financial Review and from Cork by solicitor Anne O'Neill.

http://www.rte.ie/radio/utils/radioplayer/rteradioweb.html#!rii=9%3A20526130%3A172%3A15%2D02%2D2014%3A&type=radio

Real Men don’t hit Women!

In Kinghorn, Scotland, a Magistrate called George MacKay fined a husband for hitting his wife in the face a small sum telling the husband “it is a well known fact that you can strike your wife’s bottom if you wish, but you must not strike her on the face”.  When did this happen do you suppose, the 18^th or 19^th Century perhaps or even at a stretch the early 20^th Century?  Actually 1975, the same year that Susan Brownmiller wrote her classic “Against Our Will: Men Women and Rape”.  In that year, females were forming organisations all over the British Isles and in Ireland to campaign for what was referred to, often derogatorily, as Women’s Lib and perhaps more seriously, The Feminist Movement.  In that year also the December issue of Vogue magazine carried a fashion layout depicting a couple alternately fighting and caressing.  One photo in the fashion spread shows the female with her face twisted in pain after the male model hits her.  The caption merely notes that her jumpsuit could “really take the heat”.  And while Susan Brownmiller and Diana E. Russell were writing serious works about violence against women and the women of Scotland England and Wales, not to mention Ireland , were organising themselves to fight the good fight, Brazil got around to passing a penal code which prohibited husbands from selling, renting or gambling away their wives.  However, lest you think that Brazil was one thing and America and the British Isles quite another, think again, remember Magistrate MacKay and note too that in Italy after seven years of debate the government finally passed a law doing away with the ancient Roman concept of patris potestas which vested sole authority in the father.  Wife beating was finally abolished…well in statute anyway, if not in fact, or at all….   Aargh you say that was thirty nine nearly forty years ago!  The world has completely changed since then, technology, education, travel etc – the global village, all different.  Really?  Lets have a look at that, shall we?

Before we start, it might be a good idea to define what we mean by domestic  violence.  The terms Domestic Violence and Domestic Abuse are used interchangeably and that can often be confusing.  Domestic violence seems to be confined to actual physical abuse, slaps, pushes, hitting, and beating  whereas abuse embraces emotional abuse, ie put downs, insults, humiliations and vindictive or malicious behaviour, threats as well as financial abuse, ie deliberately preventing a partner from access to finances and using finances as a means of control.   Domestic abuse which is also called spousal abuse occurs when one person in an intimate relationship or marriage tries to dominate or control the other person.  Domestic abuse that includes physical violence is called domestic violence and as it turns out it is fairly typical for an abuser to be violent perhaps not all the time but often on a few occasions to enforce the message of “Who is the Boss” so to speak.  After that it is often not necessary to do anything and all the abuser has to do is look at the victim and the victim is terrorised senseless.   The World Health Organisation defines physical violence as being slapped, punched, choked or being attacked with a weapon.  Personally, I think violence is broader than that and am inclined to the broader term of domestic abuse with the sub heading of domestic violence knowing that truly, all of the above behaviours are essentially violent though some more extreme than others.   Did you notice the word “slapped” in that definition and the word “choked”?  Wasn’t Mr Saatchi photographed with his hand around his wife’s throat recently choking her which Mr Saatchi (PR Expert, art dealer and multi millionaire) talked down saying it was simply a playful tiff despite the fact that Ms Lawson(Chef, Author, TV Star) looks quite terrified in the photograph and not having a good time at all!  And did not Denis Waterman(Actor), who after years of ensuring that his ex wife, Rula (Actor), was pilloried as a liar, finally admitted that there was violence in his marriage to Rula, state “She certainly wasn’t a beaten wife, she was hit, and that’s different”.  Not according to the World Health Organistion it is not, Mr Waterman! That was in 2012!  In his memoir in 1999 Ike Turner (Musician and Singer) seems to have been similarly confused when he says referring to Tina Turner(Pop Star), his ex-wife “….There have been times when I punched her to the ground without thinking.  But I have never beat her…”.  And Sean Connery, (mega Film Star and idol of millions) in an interview in 1965 for Playboy said “I don’t think there is anything particularly wrong about hitting a woman – although I don’t recommend doing it the same way that you’d hit a man.  An open handed slap is justified – if all other alternatives fail and there has been plenty of warning.  If a woman is a bitch, hysterical and bloody minded continually, then I’d do it.  I think a man has to be slightly advanced, a head of the woman”.  Asked by Barbara Walters in an interview December 29^th 2006, which you will find easily on You Tube, to say if he has changed his views some 40 years later, he, clearly irritated by having this matter raised again, resoundingly states that he has not changed his opinion.  Interestingly, Mr Connery also mentions the need to have the “last word” something echoed by Mr Waterman, however, Mr Connery says that even when you give the woman the last word and she still wants to bring the matter up then you are justified in ending the discussion with a slap.  Magistrate McKay is clearly alive and well! http://youtu.be/oo0d1zTAFKA

The list of female celebrities who have spoken publicly about domestic abuse is long.  The list of celebrities who have suffered domestic abuse is also long as is the list of alleged, convicted and rumoured perpetrators of domestic violence.  Clearly not all stars who get involved in domestic violence campaigns have suffered domestic violence but many have.  It is heartening to note that many well known celebrity men have also become involved in campaigning against domestic violence.  Men such as Daniel Craig who, rather ironically given Mr Connery’s views, is the new face of James Bond.  Ian Somerholder who lent public support to the Women’s Aid Real Man Campaign in 2011 is on record as saying “Men have an important role to play in sending the message that real men do not hurt or abuse their partners”.

The celebrity world may often not offer much in useful instruction but one thing it does teach us is that domestic abuse is not limited to a Roddy Doyle novel.  Domestic abuse is not confined to the poor or the uneducated.  Ms Lawson may have remained mostly silent save for her testimony in the court case against the Grillo Sisters (December 2013), however, Carol Sarlen (21^st of June, 2013) writing in the Mail Online states “Saatchi is indeed a volatile and physical man.  Always has been.  Back in the days when he began to make millions in advertising, there were tales of him hurling items of furniture around the office like so many missiles, the better to ease any fleeting frustration”.  Picture the terrified office staff!   Of course, Charles Saatchi and Denis Waterman are advanced in years and so we might think that things are different now with the younger generations.  Not so, there was the famous or infamous dust up between Rihanna (Singer)and Chris Brown(Singer) in the course of which she was so badly beaten she had to cancel concerts.  Halle Berry(Film Star) having witnessed and been a victim of violence against her mother, became involved in fundraising and support for a refuge in Los Angeles only to find herself also the victim of such violence in her own personal life. She has stated in interviews that she lost 80% of her hearing in one ear as a result of a boyfriend beating.   Charlize Theron (Film Star) had an alcoholic father who was abusive and when she was 15 her mother shot and killed her father in self defence.  She is now a celebrity campaigner against violence . Reese Whiterspoon, Oprah Winfrey (abused as a child) Nicole Kidman, Annie Lennox and many more are all tireless campaigners on behalf of women and particularly in the area of domestic abuse and violence.  Nicole Kidman is the face of the online campaign “Say No to Violence”.  Patrick Stewart (Actor, TV Star, Film Star and Campaigner) was also victimised as a child by witnessing domestic violence perpetrated by his father on his mother.  He has spoken movingly about it in many interviews and now devotes considerable time to fundraising and consciousness raising around the issue as do many of the celebrity victims of domestic violence. http://youtu.be/SPzVUGE3dds

Just as the problem of domestic violence is not confined to a particular class, there is no particular type of person that is more likely to be a victim than another.  The idea of a certain type of person being more likely to experience violence than another was prevalent in some of the writings around the Lawson and Saatchi situation.  Nigella Lawson we were told was no “dormouse”  presumably, since dormice usually get trodden upon and are seen as meek.  Interestingly, it was often the advice of pastors and priests to women whose husbands beat them that if they were more submissive and meek it might not occur!   Nigella was not that type of person so, therefore, she could not have experienced domestic abuse and violence the commentator suggests.   However, this contrasts with Denis Waterman’s statement that Rula was very intelligent and sometimes the only way he could win an argument was with his fists!  So Rula was intelligent and her own woman and she had to be “hit” to show her who was boss.   Nigella is described  as “affable, quietly ambitious and wholly able to stand on her own two feet”  as if this description should somehow make her immune!   

Domestic Violence is all about control.  It is not about alcohol and it is not about substance abuse.  It is not about inherently violent people or the uneducated poor and it is not confined to those who witnessed violence themselves.  Alcohol and drugs may fuel domestic abuse and violence but they do not cause it. Domestic Violence is not confined to a particular type of man or woman, class background, country or profile.  Domestic Violence is simply all about control.  This cannot be said often enough!  Many people who drink alcohol do not abuse or become violent.  Many people who are uneducated and poor or either are not violent and many people who have witnessed violence in their own lives do not become violent.  Violence and abuse are choices that people make.  In his defence, Denis Waterman has said about his “hitting” as opposed to “beating” that  “Its not difficult for a woman to make a man it her”.  Sean Connery seems to believe much the same, justifying slapping a woman who is “being provocative”.  Notice how both men are careful to use the term “slap” and occasionally “hit” as opposed to “beat” thus seeking to minimise the act.  Chief Executive, Sandra Horley of Refuge says “ No one can make their partner hit them.  However angry or frustrated Denis Waterman felt he could have chosen to deal with those feelings another way, he chose violence.  He alone is responsible for his behaviour”.   When Charles Saatchi desperately scrambled around to regain credibility and respect in the aftermath of the famous photo in Scotts Restaurant and lost the PR battle hopelessly he, in a determined effort to” take back some control” (Emma Barnett, The Telegraph, 10^th July 2013) of his situation and failed marriage, publicly announced his intention to divorce without telling his wife, Nigella, first.  Control is the key word but also note the malicious and vicious nature behind making a public announcement in this context without telling your wife first.  And this from a man who, according to himself, was and is not abusive!  When Denis Waterman speaks about hitting  Rula he says that because she was very intelligent and knew how to conduct herself in an argument, it was often the only response he could make i.e., to shut her up with a slap!  He was not drunk or in a violent rage, he was not taking drugs rather he made a choice, a decision to put an end to the arguments where he was not acquitting himself satisfactorily by lashing out with his fists.  In an interview with the Daily Mail and which can be read on the Mail Online, Diane Cilento (Film Star) who married Sean Connery (Film Star) in 1962 chillingly described an alleged violent episode in her marriage in an interview given in her later life after 40 years of silence.  It is a description of an alleged violent episode in their marriage which is entirely at odds with Sean Connery’s description of” acceptable violent behaviour” even allowing for the ludicrousness of such an idea.  She describes how, when they married, Sean made it clear that he wanted a wife who would follow him and his career and not the other way around. Thus far so good as Sean himself seems to have held such views generally as summed up in the quote above from the 1965 interview where he says “a man has to be slightly advanced, ahead of the woman”.  At the time of the marriage Diane was more famous than he.  They were on the set of Sean’s film at the time of the alleged incident and cast and crew attended a wedding in the local hotel where many if not all were staying.  Diane it seems was dancing and having fun and she noticed that Sean was standing on the sidelines watching her and glowering.  Eventually he left, presumably to go upstairs to their room.  She excused herself after some time and followed him and when she walked into the dark room she received a blow on one side of her head and then on the other.  After one such blow she was unconscious for a few minutes but when she revived the beating continued. This description of the beating she says she experienced, and it is decidedly a beating and not a slap that is being described here, is very much at odds with Sean Connery’s view of acceptable levels of violence.  Eventually she says she managed to crawl into the bathroom where she remained for the night in pain.   Sean, it seems went to bed and the next day the incident was not mentioned and it was never mentioned again.  Forty years later, Diane, long since divorced from Sean, disclosed this incident in an interview.  As described by Diane this was a calculated, malicious and cold blooded attack on someone undoubtedly physically weaker and probably much smaller as Sean is 6’2”.  There is nothing passionate, heat of the moment, red hot or arising out of substance abuse about this attack. It is somehow made even more terrifyingly brutal and calculated by having taken place in the dark.  Sean Connery has never admitted to this incident to my knowledge and as far as I am aware he has never denied it either but his views on violence against women are recorded.  No doubt he would not accept that what he condones is violence against women but the World Health Organisation might beg to disagree.   Equally shocking is the violence experienced by Madonna at the hands of Sean Penn.  In July 1987 Madonna was in the Cedar’s Sinai hospital for an X ray after husband Sean hit her across the head with a baseball bat.  She decided not to press charges because Sean was on parole (for violent behaviour towards a film extra and a fan) which he had violated and was due to serve a short sentence and she did not want to add to that.  In December 1988, however, Sean scaled the wall of Madonna’s house in Malibu and climbed into her bedroom.   Madonna announced that she was going to leave the house and he tried to stop her by attempting to bind her hands with an electric cord.  Madonna ran from the room and he chased her.  Catching her, he bound her to a chair and gagged her.  He threatened to shave her head and was drinking alcohol, as he was talking, directly from a bottle.  He slapped her and hurled abuse at her for 9 hours in addition to making her perform a “degrading sex act” on him.  He then left the house to get more drink leaving her bound and gagged while he was gone for several hours.  He returned and continued his attacks, ultimately, however, untying her.  As soon as she was freed, she fled the house into her car where she phoned the Sheriff’s Office.  While she was talking to the Sheriff, Sean who had followed her, could be heard banging on the windows of the car and shouting.  Fifteen minutes later she staggered into the Sheriff’s office and filed a report.   Sean Penn was charged with felony domestic assault a charge which he pleaded a misdemeanour. (Olivia Smith, New York Daily News).  We might feel outrage that such levels of abuse could be pleaded to a misdemeanour however, we have to be grateful that such a charge was made and stuck and accordingly, we can write about this without having to say she alleges or it is alleged and simply state that it happened as does the acceptance of a caution by Mr Saatchi, however derisory in the circumstances, enable us to talk freely about this episode.   Pamela Anderson (TV and Film Star) is also on record as accusing her ex husband Tommy Lee of beating her.  He spent 6 months in jail. http://youtu.be/lNJjEZoRKqM

It is commonplace for perpetrators of abuse and violence to blame the victim even while ostensibly “owning up”.  Seldom does the abuser take responsibility for their actions.  Precedent shows that men caught in the act of domestic violence tend to make themselves feel better about the situation claiming that their woman also lashes out. Perhaps she does, but I bet it is mostly in self defence and given her likely physical stature and that of her partner not to mention musculature, I doubt she gets the “final blow” even when she has the “final word” graciously conceded by Sean Connery prior to the slap if she does not shut up at that point.  Victim blaming was very much in evidence in the manner in which Charles Saatchi justified his behaviour after the event by trying to put himself and Nigella Lawson into the one basket, describing them both as passionate and tempestuous people.   He also tried to minimise the fact that he was caught on camera holding her around the throat clearly choking her saying he was trying to make a point in their argument and furthermore, when he tweeked her nose it was to remove a piece of snot from it.  Quite apart from the disgusting and disrespectful idea that he would remove snot from his wife’s nose in a public restaurant in the way a harried parent might a small child, it is clear that he is also trying to minimise and trivialise the incident.  Sandra Horley CE of Refuge says “Women are four times as likely to experience serious, life threatening violence from a partner such as choking.  Last year almost half of the women supported by Refuge had been strangled or choked by their violent partner”.  Sad to say Charles Saatchi fits into a well worn pattern.  In her evidence to the court in the case taken against the Grillo sisters, Nigella Lawson in her testimony finally breaking some of her silence said that Mr Saatchi was a “very controlling” person prone to occasional foul-mouthed rages.  Referring to the public choking incident she says the “Choking row had nothing to do with my alleged drug taking” which Saatchi claimed. She went on to say that he “told everyone that he was taking cocaine out of my nose” and that “what actually happened was that somebody walked by with a very cute baby in a stroller and I said ‘I am looking forward to having grand children and he grabbed me by the throat and said ‘I am the only person you should be concerned with….  I am the only person who should be giving you pleasure’.  Again we have the familiar patterns of jealousy and possessiveness.

Domestic violence is rooted in patriarchal attitudes which are as old as recorded time.  Such attitudes encourage men to believe they are entitled to power and control over their partners.  Many of the myths which surround domestic violence actively prevent the reality of the violence from being understood and indeed encourage violence.  Such things as: blaming the victim, tolerating or condoning the use of violence, Relatives. friends and government agencies putting the idea of a family staying together before the safety of women and children, privileging men’s needs over women and children’s needs, and treating domestic violence as a private matter instead of the public crime that it is, all serve to ensure that domestic violence is not seen as a scourge and dealt with accordingly by the powers that be.  Domestic violence is learned, intentional, behaviour rather than a consequence of stress, individual pathology, substance use or a dysfunctional relationship.   Violent men typically justify or ignore their behaviour by:  1. Minimising the violence saying it was “just a slap” or “isn’t that bad” – hello Messrs Waterman and Turner.  2. Justifying the behaviour to themselves and blaming the victim  - greetings to Messrs Waterman and Saatchi and 3. Denying the violence happened or refusing to talk about it and expecting the victim to just “move on” – Mr  Connery’s alleged approach. 

It is often said that women who marry violent men in some way welcome the violence or want it.  This was stated about Doris Day (Film Star and Singer) who suffered horrific abuse at the hands of Al  Jordan also a musician.  Al first put his eye on Doris when she was 16 and he was 23 and despite her initial reluctance and her mother’s clear opposition, she eventually married him.  The day after their wedding when Doris was 17 years old, Jordan saw Doris giving a fellow musician a kiss on the cheek to thank him for a wedding gift.  He dragged her out of the theatre and through the street, then up the stairs to their hotel room where he beat her senseless.  And, of course, it did not end there and most especially when she became pregnant the violence escalated considerably.  Doris wrongly assumed that her husband would be pleased when she announced her pregnancy which despite the clear abuse she was suffering, she was happy about.  He was not at all pleased and immediately made an appointment with a back street abortionist.  Doris’s mother, Alma, was horrified when she heard this and told Al that if the abortion went ahead she would have him killed.  Jordan then decided that the child was not his and beat Doris so badly she nearly had a miscarriage. Four weeks before the baby was due, Jordan bought himself a gun and stashed it in the glove compartment of the car.  His plan was to kill Doris and the baby and then blow his brains out.  Shortly thereafter he pulled the car into a layby and pushed the nozzle of the gun into Doris’s stomach.  Somehow she managed to talk him out of it and instead he beat her when they got home.  For the rest of her life Doris had a horror of travelling in the front of a car.  Finally, Doris had enough and arranged with her mother, Alma, to escape Jordan.  Alma got them a house big enough for the two women and forthcoming baby.  Doris went into labour and produced a boy, Terry.  Of course, Jordan then begged forgiveness and asked to be let back.  Doris gave him another chance.  Abuse followed .  Jordan would arrive home drunk and burst into Alma’s room and proceed to rattle the bars of the child’s cot.  Having woken him he would then bellow at the terrified child who would scream the place down.  After this happened twice, Doris changed the locks on the door and filed for divorce.   Again, this is another pattern that is quite familiar, escalated violence during a woman’s pregnancy.

Women do not seek out relationships with violent men.  Frequently, men who will become violent do not reveal this aspect of their behaviour until the relationship has become well established ….and often not until after or during the first pregnancy. In an article written by David Bret for the Mail Online, he writes that Doris Day “by all accounts enjoyed a sex life where passion constantly merged into violence”.   He also quotes unnamed associates of Doris who say that she “wore her bruises with pride”.  He implicitly and explicitly criticises Doris for not leaving Jordan and says that she had poor taste and judgement when it came to men.  This is classic victim blaming stuff as well as suggesting that Doris somehow liked the abuse and that she found it sexually stimulating.  Doris was 17 when she married Jordan – what does a 17 year old know about life?  David Bret however, seems to think she was no innocent and he states this and cites the fact that her father had multiple affairs as his reasoning.  The fact that her father had multiple affairs might have made Doris more susceptible than worldly wise.  The suggestion that Doris liked the beatings she got is almost too much to bear.  Who would like having their unborn child not to mention themselves threatened with a gun, being publicly and privately slapped, kicked, constant abuse as well as constant beatings.  When Doris had her baby she was only 18.  In common with most young women, Doris  wanted to have a family and she wanted her child to have a father.  In Doris’s case these feelings were probably more pronounced as result of seeing and hearing her father conducting his various affairs and then her father and mother separating.  In saying that Doris had poor judgement when it came to men, Bret implies that Doris could somehow have controlled or prevented what happened and that she was somehow responsible for it.  In other words, David Bret is blaming her.  It is one thing for abusers to seek to shift blame but quite another for a so called analyst writing about it.  With this sort of commentary, is it any wonder that domestic violence is on the rise rather than on the wane. 

Abusers use fear, guilt, shame and intimidation to wear their partner down.  Abusers do not play fair.  Domestic abuse frequently escalates from threats and verbal abuse to violence.  The most telling sign of an abusive relationship is fear of the partner.  Emotional abuse, as described above, chips away at the victim’s feelings of self worth and independence making it harder and harder for her to assert herself, look for help or leave the relationship.   Examples of the manner in which abusers can control by using fear, guilt, shame and intimidation are: 1. Dominating the relationship.  Needing to feel in charge.  They will make all the decisions and expect their partner to comply.   To give a specific example which is far more commonplace than you would think, controlling the finances and making all the decisions about what to buy, when and where often down to  the clothes that the partner wears.  Not only will the financially controlling man decide what is to be bought, he will often with hold money as a means of control.  I tend to call women in this situation the “ fur coat poor”  because this behaviour seems to be a speciality of professional and middle class men.  2. Humiliation: This is a stock in trade.  Subtle put downs, insults designed to make the victim feel bad about herself and that she is defective in some way.  Women who believe they are worthless are less likely to leave.  Name calling and public putdowns are all weapons of abuse.  A woman will be criticised because she is too fat and/or too thin, ridiculed for the clothes she wears, told she is stupid and lacking in any originality or cleverness, adversely compared to other men’s wives or her own friends, sisters and so forth.  In public, if she has the temerity to express an opinion that is not his or to disagree with him, her way of expressing it may be ridiculed or the opinion itself viewed as derisory and so on.   3. Isolation: Again this is quite commonplace.  The abuser will cut the victim off from the world gradually.  Eventually the victim will have to ask permission to go anywhere or see anyone for fear of the consequences if she does not. Nigella Lawson in her testimony states that on one occasion she was ”punished” for attending a girlfriend’s birthday celebration.  “I don’t mean that I was beaten…emotional abuse doesn’t have scars but it is still very wounding”.  She further went onto say that her marriage was like being subjected to a form of “intimate terrorism”. Sandra Horley CE of UK Organisation, Refuge says “Abused women are typically very isolated women, abusive men are possessive and jealous.”  4. Intimidation:  This generally takes the form of looks and gestures however, smashing ornaments or other items in front of the victim is also a favourite as is destroying property, harming pets or putting weapons on display. 5. Denial and Blame: Violent men are very good at making excuses for their behaviour.  They frequently shift responsibility onto the victim and/or minimise the abuse. http://youtu.be/rp0h2fvQKDE

Just as fear of a partner is often a sign of domestic abuse so too, in my opinion, is unreasonable jealousy.  In my experience as a family lawyer this is a hall mark trait.   John Lennon (Singer, Musician and Songwriter), also a self confessed wife and girlfriend abuser, was given to jealous rages some of which ended in violence against both of his wives and probably other women as well.  He insisted, for example, that Yoko accompany him everywhere including the men’s toilet.  Yoko Ono said in interview that she believed that he felt she might, even in the few minutes he was in the toilet, take up with someone else if she was not with him. Cynthia Lennon has claimed that she suffered violence at the hands of John Lennon during their marriage (and his general admission of violence in his Playboy interview would seem to confirm that) and she certainly suffered cruelty.  In common with Charles Saatchi, John seems to have ended his marriage in an unnecessarily brutal and callous manner. Apparently Cynthia came home from a holiday in Greece to find Yoko and John sitting on her sitting room floor in matching bathrobes.  After what is known in the trade as a “pregnant pause” he looked up and said “Oh….hi” and thus Cynthia found out her marriage was over.   Sean Connery it seems was also decidedly jealous and used that jealousy as a licence to beat, at least accordingly to his ex wife!    

Once again, abusive behaviour is a deliberate choice made by the abuser in order to control.  Abusers pick and choose whom to abuse and carefully choose when and where to abuse.  Abusers are able to stop abusive behaviour when it benefits them.  Note the number of abusers who do not abuse others in their lives, just their partners or wives.  In addition, violent abusers usually direct blows where it will not show, again demonstrating calculation and forethought. 

It is often assumed that men who abuse women do not abuse their children but the evidence for this assumption does not stand up to scrutiny.  In the examples we have taken here, it is clear that Al Jordan, Doris Day’s husband not only made it clear that he did not want his son but he also directly tormented the child in a highly abusive manner.  John Lennon appears to have treated Julian in an emotionally abusive manner, neglecting him, keeping him and his mother disgracefully short of money when he was earning millions and on the odd occasion when he did see Julian, frequently resorting to shouting abuse and put downs at him.  Studies have shown that men who batter their wives also abuse their children in 70% of cases.  And that is quite apart from the abuse perpetrated on the psyche of a small child who witnesses a loved one being victimised in this manner.

I am well aware in writing this essay that it will be criticised for speaking exclusively about male violence towards females and not treating female violence towards men.  I am not naïve enough to think that women do not have the capacity for violence and I know that they can be emotionally abusive. 

 However, the vast majority of the victims of domestic violence are women and children.  Women are considerably more likely to experience repeated and severe forms of violence and sexual abuse.  Over 30 years of data and research has confirmed that men are generally the perpetrators of domestic violence and that women are generally the victims.  Irish and worldwide research – as well as data from hospitals and police stations all over the world – reveal a consistent pattern of violence in intimate relationships where men are the perpetrators 90% of the time.  In 2007 statistics published by the National Crime Council and ESRI Research identified 1 in 7 women compared to 1 in 17 men.  However, I am not trivialising the emotional abuse that many men suffer nor the fact that undoubtedly, some men do encounter actual physical violence from their female partners.  Any violence or abuse is to be condemned whether it is 1 in 17 or 1 in 7.   The World Health Organisation calculates that nearly 40% of women killed worldwide were slain by an intimate partner and that being assaulted by a partner is the most common form of violence experienced by women.  30% of women worldwide are affected by domestic violence or sexual violence by a partner.  In parts of the world the number rises to 37% and higher.  I wonder if David Bret’s criticism of Doris Day would apply if he was aware of these figures and if she had been born in the countries where the average was 37% would she still have been blamed for having poor judgement in the men she picked.   It seems to me frankly, that it is a bit of a lottery who you draw or partner in life and those of us who are violence and abuse free might well content ourselves with the old saying “There but for the grace of God go I”. http://youtu.be/8dNrb5fe7kY

In the Journal.ie on February 16^th, 2013 it was reported that in Ireland, domestic violence is not listed as a cause of homelessness which means that women struggle to get housing places even if their lives are seriously at risk.  I am sure there are many compassionate officials who take domestic violence into account and very possibly there are guidelines for officials on this also but I have seen at first hand the effectiveness of guidelines for many agencies and I do not think that something so fundamental and important should rest with the discretion of officials.  Domestic violence is not recorded within HSE protocols as a form of abuse.  Both of these factors make it difficult to record the prevalence of domestic violence quite apart from the clear fact that they minimise the importance of this problem and furthermore these factors potentially add to the suffering of women and children.   To add to this, domestic violence cases are held in camera (Latin term meaning held in private) and this means no reporting.  In recent years the in camera rule applying to all family law cases has been relaxed a little and there has been some carefully guarded and monitored reporting.  While I accept that the victims of domestic violence deserve their privacy it is still the case that without some systematic level of reporting there is no real public knowledge of the prevalence or degree of this problem.

Virtually  all of the world’s societies view or have viewed women as less valuable than men.  From honour killings of women for being raped or having premarital sex in some countries to selection of females for infanticide, abortion and abandonment at one end to being omitted for high office, as jurists, not given equal status as witnesses in legal cases, not accorded the same rights in employment, access to employment or to vote and often not given access to education or equal access to education.  The view that women are somehow second class citizens encourages the mistreatment of women worldwide.  Women are often looked at and indeed written about as if they were a species apart, i.e., incapable of the same feelings and without the same capacity for suffering, wayward and not very clever, fit for nothing only tending to men’s needs and so forth.  Of course, all of this makes it easier to subjugate them and is the same sort of justification that is used to kill and maim, indigenous people down through the ages.  Religions worldwide have tended over the centuries to place women in a role subservient to men.  In the Christian religions the overall context was misogynist and patriarchal.  Following on from that, in many Christian European countries legislation established women as chattels to be protected, chastised and controlled.  The Christian Church advocated male dominance and wife beating was permitted in Canon Law.  Woman was not made in God’s Image and therefore, it was natural for her to serve her husband. The husband is the head of the wife, the man’s head is Christ.  I will not go into the other major religions as it would take too long but suffice to say that while the tone may be milder or stronger in some of them,  it is all pretty much the same message.  

I do not wish to classify women solely as victims or to lump them constantly with children.  It is very difficult to write about this issue and not fall into that trap.  There are nasty women, there are weak women, clever women, stupid women, beautiful and talented women and charitable generous and loving women.  Women are not defined by any one trait or characteristic nor are victims always, nice loving people.  Victims can also be nasty, spiteful people but they are still victims.  We need to be careful not to wind up blaming the victim because she does not fit with our image of what a victim should be or look like or behave like.  It is very important that condemnations of domestic violence and abuse do not come solely from women and women activists.  Men need to speak out.  In the last few years there have been systematic attempts to broaden the campaign against gender based violence by organising the 16 for 16 Campaign in 2011 where 16 celebrities join the campaign against domestic violence.  At the launching of this it was stated “Men’s influence in the global push to stop gender-based violence cannot be underestimated and we strongly believe that men need to join forces with women to end violence against women”.  Men need to see this evil for the slur on their masculinity that it is.  “The only thing necessary for the triumph of evil is for good men to do nothing.” (Edmund Burke). http://youtu.be/ElJxUVJ8blw

I do not know why men feel the need to exercise power and control over women by hitting slapping, beating and insulting them.   I do know that it has nothing to do with Women’s Lib or Feminism as has occasionally been suggested and hinted at on the basis that men are confused about their role as men because of feminism, or confused about their gender identity and therefore they lash out.  Hitting and beating women has gone on for centuries at times when women were entirely subjugated and it continues to go on in countries where that remains the case.   It is concerning however, that it does not seem to be on the wane but rather it is increasing. It does appear that men seek control over women by hitting and slapping arising out of an impoverished concept of their own masculinity.  I would posit that masculinity is understood by some men to mean power, control, machismo and does not embrace empathy and compassion.  Men are seen as hard, tough,and conflictual.  This view of men especially when viewed as natural, empowers violent behaviour and excuses it because after all it is natural.  However, many men do not resort to violence and abuse and are no less men for that.  Indeed, despite the rising figures we can still say that the majority of men do not visit violence and abuse on their partners.  It is time for those men to speak out and actively demonstrate that “Real Men do not hit women”. http://youtu.be/lNJjEZoRKqM

 Anne O’Neill 

Wishes all clients & friends  

Happy Christmas & a Prosperous  New Year 

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

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

http://www.irishtimes.com/news/social-affairs/a-proper-debate-on-the-merits-of-taking-children-into-care-is-long-overdue-1.1588744

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 9^th 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 21^st 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.   

SENATE REFERENDUM

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.

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 20^th 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.