Mediation: a useful tool in Family Law Cases.

Mediation is basically a service to help couples in Ireland whose marriage has broken down and who have decided to separate or divorce and in some cases those couples who have already separated. The purpose of mediation is to help a couple negotiate their own terms of agreement while addressing the needs and interests of all involved. In particular, mediation where suitable can address the needs of the children of the marriage, if any.

However, mediation is not suitable for everybody and there must be some level of cooperation between separating couples in order that they can work out mutually acceptable arrangements on all of the matters pertaining to their marriage break up. Some of these issues include the following:-

  • Parenting the children.
  • Financial support and maintenance.
  • Access to the children.
  • Family home and property.

The family mediation service of Ireland has described the role of the mediator as follows:-

  • To see a couple together and help them settle their differences.
  • To create a climate in which neither party dominates but in which both parties participate fully in good faith.
  • To create and maintain an atmosphere of cooperation and responsibility to help couples deal with difficult emotional issues that can prevent them reaching an agreement.
  • To help couples reach an agreement that they believe to be fair and workable.

Mediation is a very helpful tool in any Family Law case and is becoming more and more popular for couples who have decided to separate. However, we find that it is not suitable for everybody and there must be a reasonable level of willingness to cooperate from both parties. Unfortunately, some couples go in to mediation and it ends up being a waste of time as one of the parties really has no interest in mediating and is simply using the tool of mediation as a delay tactic.

As regards the service, a professionally trained mediator would assist the couple to reach their own agreement. Both parties would usually attend and discussions are always confidential. It is paramount that the mediator does not take sides. Before a mediator will take on a case both parties will have to independently contact their mediator to confirm that they are happy to proceed with the mediation. Sometimes mediation can take up to six sessions lasting one or two hours approximately and the end result is a written document which is agreed between the parties setting out the principles of the couples agreement. This agreement can provide a very helpful framework that can be taken to the parties Solicitors to be drawn into a legal Deed of Separation or the basis of the consent for a Judicial Separation or a Decree of Divorce. Some mediators also offer a further service once an agreement is reached and this is a family session where a couple has reached an agreement. A session may be offered to parents to invite their children to discuss their new family arrangements. In certain circumstances this can also be a very important tool. Further information in relation to mediation can be found in a number of the full time family medication services in Ireland. Details of the various offices are available on the Department of Social and Family Affairs website.

Guardianship, Custody and Access Rights for Gay Couples.

The Government has recently announced proposed changes to the laws in respect of Guardianship, Custody and Access in Ireland in relation to gay couples. According to Justice Minister Alan Shatter, the Government intends bringing in laws by the end of year to extend Guardianship, Custody and Access rights to non biological fathers of children in same sex relationships and children born through surrogacy and sperm and egg donation. It is understood that a draft Children and Family Relations Bill will be discussed by Cabinet shortly and thereafter will be considered by the Oireachtas. The plan is to finalise the bill by July in order that it is ready for Dáil debate by September with a view to enacting it by the end of the year. The new changes proposed come against the backdrop of the Referendum next year in relation to same sex marriage in Ireland. According to the Government, the issue of equal parenting rights will be dealt with by Legislation before the end of the year regardless of whether the Referendum on same sex marriage is passed next year.
The Guardianship of Infants Act 1964 currently deals with the issue of Access, Custody and Guardianship in Ireland but, does not have any reference to same sex couples and their rights.
In relation to the issue of adoption, while this is currently not in the Bill, Alan Shatter said that it would also be tackled. He recently said “Since 1952 an individual can adopt regardless of his or her sexual orientation. It makes no logical sense, where an individual who is gay can individually adopt, that a couple in a civil partnership should not be able to adopt. These are issues to be addressed whether or not we have same sex marriage”.
A recent UCC Study on Parenting by Lesbian, Gay, Bisexual and Transgender people presented at a seminar found that the lack of legal recognition for many parent-child relationships was the cause of huge stress and left same sex and non-traditional families feeling very vulnerable.

by Healy O’Connor Solicitors Cork and Dublin.

Divorce without Judges? By Maurice O’Connor of Healy O’Connor Solicitors. Family Law Solicitors Dublin. Family Law Solicitors Cork.

Recent news from France is that the country is considering a plan to allow Divorces to take place without a Judge, simplifying a process, allowing for people who mutually wish to Divorce to basically complete the Divorce themselves. According to the Social Affairs Minister in France, the plan is currently under consideration. The idea is to simplify matters for people who are agreeing to Divorce. It would seem from a practical point of view that the Divorce would still be heard in a Court but, would be completed by a Court Clerk who would approve the Divorce when spouses agree on all matters. It would seem that the idea comes from recent information confirming that divorcing couples who are consenting spend a very short time in average, only sometimes only 8 minutes before a Judge. It appears from figures released that in France 54% of divorces are currently uncontested.
It is arguable that this new rule may weaken the institution of marriage and possibly make any agreements that are reached, harder to enforce. It should be made clear however, that the Divorce would still be a Court Divorce and recognised as that.
In this country it is possible for a couple to agree and consent to Divorce and deal with the Divorce themselves. However, that Divorce would still have to ruled before a Judge. It would seem to make sense, in situations where a consent Divorce is achievable, that an experienced Registrar or Clerk could grant the Divorce of the Court without the need for a Judge to be there. However, invariably issues do arise on Divorce and even with best intentions, sometimes consents need to be clarified, especially where people are representing themselves. It will be interesting to see how this develops in France in a country where 1 in 2 couples will Divorce.

The Relaxing of the In Camera Rule in Family Law Proceedings

Since last Monday, 13 January 2014, journalists and the media are now entitled to attend at Family Law proceedings in Ireland. The new law was passed by the Government last July and last Sunday night, 12 January 2014, the Department of Justice announced that the law would begin (with immediate effect).

Under the new legislation the media are now allowed to attend hearings and report on those hearings provided they do not identify any of the parties who are involved in those proceedings. This is to protect the identity and the sensitivity of the information being disclosed in Court. In certain circumstances, a Judge however has the right under the legislation to decide to exclude the press or to impose restrictions on what the press can report on in the Family Law Courts. For instance, if a Judge was hearing a case and felt that some part of the case or the evidence being heard was commercially sensitive, he could direct, of his own volition or after application on behalf of the representative of either party, to omit certain parts of evidence from reporting.

The idea of the legislation is to shed some light on proceedings that had up until now been for the most part unknown. The reporting of Family Law cases will provide very interesting information in relation to the types of cases that are coming before the Courts in relation to Family Law on a day to day basis.

Undoubtedly there will be multiple applications by Solicitors and Barristers on behalf of their clients to have the media excluded and this is understandable as certain specific facts of certain cases may lead to the parties to those proceedings being recognised, even though they remain anonymous in any newspaper reports.

However, in the public interest it would appear that it is safe to say that this new legislation will open up the public eyes to the goings on behind the previously closed doors to Family Law proceedings and it must be welcomed if it gives the public at large a greater understanding of what Family Law proceedings involve for the people who have to go through the various court cases and applications.

Abduction; Habitual Residence and Consideration of the Child’s Objections in the case of LCG v RL 2013 EWHC

The above case is a decision from May 2013 in the English Courts and the decision considers the different tests for habitual residence in Hague Convention proceedings and European law.

The mother of the children in this case was Spanish and the father was British. They had four children ranging in ages from four to twelve years. The father did not have parental responsibility for the older two children but did in respects of the younger children. The parties met when the mother came to live in England in the mid 1990s and throughout their relationship they had four children and never married. Both parents described a turbulent parental relationship and both parties gave accounts of a strained relationship after the birth of the youngest child. There was also descriptions of hostilities and aggression in the relationship over the years. Their relationship finally disintegrated in early 2012 and the mother took the children to Spain at the end of the academic year in July 2012. The father collected them for a contact visit over Christmas and informed the mother in early January that they did not wish to return from the UK. The mother then brought proceedings under the Hague Abduction Convention and Brussels IIR. The eldest child, age twelve, had reported being bullied at her secondary before the mother took her to Spain but, during the Court proceedings expressed the clear view that she wished to remain in the UK with her father, in part because the education was better but also because she felt let down by her mother. She was hostile to her mother. The two middle children were ambivalent and conflicted as between the parents but, went along with the eldest child’s views. The youngest child was too young to express an opinion. The father mounted a full defence to the proceedings on the basis that first, the children were habitually resident in England and Wales and secondly, they objected to returning to Spain themselves and thirdly, they would be placed in an intolerable situation if returned to Spain due to the mother’s neglectful parenting or that they would be split up as a sibling group.

Justice Cobb who heard the case found that the father had unwillingly agreed that the mother could take the children to Spain indefinitely and as a result of this finding, ordered the return of all four children to Spain.

In ordering the return of the children to Spain the Court found that:

a)    English law is in line with European law concerning the issue where the mother alone has parental responsibility. A removal by the mother represents the legitimate exercise of the mother’s own freedom of movement under the EU Treaty and of her right to determine the child’s place of residence and does not deprive the natural father of exercising his right to submit an application and obtain rights of custody.

b)    The father’s views are relevant to the question whether the oldest child had in fact acquired habitual residence in Spain and his objection would have been significant (if he had been found to have objected to their going to Spain) as one of the conditions for the reasons for the stay in the territory of the member state.

c)    In relation to the children for whom the parent had parental responsibility, any agreement to their relocation must be clear but not necessarily judged by reference to the exacting standard applied to the test relevant to Article 13 (1) consent as a Defence. On the facts, the father’s agreement was clear and unconditional and was affective to facilitate change of habitual residence.

d)    It was a true bilateral agreement to their stay being indefinite and in that sense it was important to consider how far the children were integrated into life in Spain under the European definition of habitual residence. The move to Spain had not been easy for the children, undertaken against he backdrop of months and probably years of bitterness and rank between their parents. Inevitably, the move created a hiatus in the children’s lives and integration must be viewed in that context. On the facts it did achieve a significant degree of integration into their new social and family environment.

e)    In any event, the father’s contract, viewed before both the departure to Spain and afterwards, reflected at the very least acquiescence in that state of affairs for the purposes of Article 10 (a) BIIR and would have satisfied the high threshold test under the Hague Convention Article 13 (b) Defence in re K (Abduction: Acquiescence) 1997 1 FLR 872. It followed that the children were habitually resident in Spain and their retention in England and Wales was in breach of their mother’s rights of custody under the law of Spain.

f)     There must be a very clear distinction between the children’s objections and the child’s wishes and feelings. To take account of such objections, it is necessary for them to be so solidly based that they are likely to be terminative of the discretionary exercise which is to follow.

g)    The three eldest children were of an age and maturely which the Court can take account of their  views; the eldest child objected to returning to Spain, but the views of the two younger of these feel short of clear objections to such return.

h)    The threshold for proving that a child would be placed in an intolerable situation if returned remains high and the evidence was insufficient  to establish it in this case.

i)      The eldest child’s objection to return opened the gateway for the exercise of the Courts discretion. Whilst she was plainly bright and determined, it would not be right to give determinative weight to her views which were influenced by her aligning herself with her father and shifting her ground from how she had previously felt, such that her objections might well modify once again after her return to Spain. She and her mother needed to work out their differences and that would not happen while she remained living with the father.

The Judge hearing the case also made some final comments which are of interest to anyone practicing in the area of Family Law and relocation. The Judge commented that the litigation had self evidently been bruising for the parents. The Judge also asked them to think how much worse do they think this litigation has been for the children?. It would appear this question was asked in particular where the oldest child had become directly involved in the proceedings.

The case is an interesting one, especially in relation to the way the Judge dealt with the eldest child’s objections to return to Spain. The Judge seems to take the view that the longer term interests were best achieved by ordering her return to Spain even though she clearly objected to same.

 

Guardianship.

Guardianship concerns a number of rights and responsibilities that automatically vest in the parents of a child born within marriage and in the mother of a child born outside marriage. These rights and responsibilities are in relation to the upbringing of that child. A guardian of a child has the right and the responsibility to make all major decisions affecting that child’s upbringing relating to education, medical treatment, adoption, religion and international travel. As indicated, where the parents are married both parents are automatically joint guardians of their child. However, where the parents are not married the mother is the sole guardian of the child and the fact that the father’s name is on the Register of Births does not automatically give him guardianship rights in respect of the child. The father of a child born outside marriage can become a guardian of his child by Court Order or upon marrying his child’s mother.

As regards the practicalities of an unmarried father acquiring guardianship, one of the following matters would have to occur:

a)    If both parents are in agreement that the father can become a joint guardian then it is possible to complete a Statutory Declaration confirming this in the presence of a Peace Commission or a Commissioner for Oaths. Upon swearing of this declaration the father of the child is then recognised as a guardian of the child.

b)    In situations where the mother does not agree to the father becoming the child’s guardian, it is open to the father to apply to the relevant District Court in order to be appointed joint guardian with the mother. The father’s name does not have to be on the Register of Births and the application for guardianship is made under the Guardianship of Infants Act 1964. The father of any child concerned in relation to the issue of guardianship can apply himself to the District Court or can engage the services of a Solicitor to make the application for him.

In some situations the mother of a child will not consent to the father becoming a guardian and certainly this is not a bar to a Court refusing an application for guardianship. In all cases concerning children the Court must make its decision based on the child’s best interests which are always the first and paramount consideration. This means that in making any decision the Court must keep the child’s best interests and needs to the fore and if a Court feels that it is in the child’s best interest for the father to become a guardian a father’s application will be successful.

It is also important to note that a father who has been appointed a guardian can also be removed by a Court if it is the Court’s opinion at a later date that the child’s best interests are served by removing guardianship from the father.

As guardianship involves a duty to maintain and properly care for a child and also involves the right to make decisions about a child’s education, religion, health requirements and general welfare, it is very important for any father of a child who is not married to the mother of the child to ensure he becomes guardian of that child as soon as possible after the child’s birth. If a father is not appointed a guardian of his child he will have little say or influence in the child’s upbringing and may be left out of some of the very important decisions concerning his child.

It is also important to note that if the mother of a child marries someone other than the father, the father does remain a guardian of the child and the stepfather of the child will not be in a position to adopt the child without the father’s consent to that adoption.

Is it finally important to note that all parents who are guardians, and in particular those who are sole guardians, have the right to make a will appointing a person who will act as the child’s guardian in the event of their death. This is a very important step to take especially for sole guardians of children and it is always advisable to consult the person who you would wish to act for you if you were to die and to make sure that they consent to do so. The person appointed by your will to act as the child’s guardian is known as a testamentary guardian.

Where joint guardians cannot reach an agreement in relation to issues concerning their child then an application can be made to the relevant District Court seeking clarification or orders in relation to the child’s best interest. It is always important to consult with a family law Solicitor in relation to contentious applications before the Courts.

Paternity and the Family Law Courts

The issue of Paternity is one that arises on a regular basis before the Courts. Where parents are married to each other there is a presumption in law that the husband is the father of the child unless there is proof to the contrary. If parents are not married to each other there is no presumption in law as to who the father of the child is. This is different however where the father’s name is on the birth certificate.

 

Paternity can be established by the Courts in a number of different ways. Firstly, as part of Court proceedings it may be necessary to establish paternity if there is a doubt in relation to it. This may arise in Maintenance, Access, Guardianship or Inheritance proceedings. The majority of cases in relation to Maintenance, Access and Guardianship are heard before the District Court in the Family Law section. These cases however can also be heard in the Circuit Court. If there is some doubt as to paternity, a Court hearing any of the above mentioned proceedings, may order that the parties in the case undergo a paternity test before any order can be made. In  making an order in relation to paternity the Court can also direct who is to be responsible for the payment of the paternity service. Sometimes a Judge can order either of the parents to pay the cost of paternity or order that the cost will be shared.

 

In some instances a party may refuse to undergo paternity testing and it is common place in this instance for a Court to draw inferences as it thinks proper in the circumstances of that particular case. To give an example, if a father refuses to undergo testing the Court may draw an inference, having listened to submissions on both sides, that the father was afraid the test would show that he was in fact the father.

 

Under the Status of Children Act 1987 there is a provision that deals with parentage and there is provision for a Court to make an order that blood testing be carried out. It has now become in practice in Courts to also accept the results from swab testing from approved laboratories.  The second way paternity may be established by the Courts is  in relation to special procedure for a Declaration of Parentage. There is a special procedure available in the Circuit Court called a Declaration of Parentage which can only be used by the person whose parentage is in question e.g. where a parent has died and the child is making a claim on the estate this procedure can be used to established parentage. It is however not available to adopted children.

 

Depending on the complexity of the case it would be advisable to have a Solicitor represent you in any parentage situation and especially if there is a related hearing in relation to Maintenance, Access or Custody.

 

As regards the actual testing, all procedures are carried out either by blood samples or mouth swabs taken from the relevant parties. In general terms, the consent of the mother is always required before a child can be tested. In some instances where the consent of the mother has not been obtained the legality of the testing could be in question. The laboratories who test for parentage usually request that testing be carried out on all parties at the same time however, sometimes this is not possible and they will arrange for the testing to be carried out on all parties within a short period of time of each other on the same day. Photo identification is also required for the testing and sometimes a kit can be sent to a nominated GP. If you are serious about getting a parentage test then any laboratory may be in apposition to provide you with a list of GPs that provide the service. Where results are required for Court purposes it should also be confirmed to the laboratory that they operate to a Court approved standard.

 

In my experience if there is a doubt as to the parentage in the context of Maintenance, Custody or Access proceedings it is always worth getting a test done and then advising a client to have the test done, as if there is any doubt as to who the father of the child is, that doubt should be removed before any orders of the court are made. Once parentage is established the orders that are made will be in the best interests of the child and Access Maintenance, or Guardianship decisions can be dealt with accordingly by the Court