Voice of children ‘muffled’ in adversarial break-ups

The quality of some voice-of-the-child reports is variable, although reform of the role of guardians ad litem is ongoing, a One Family webinar entitled 'Building a Family Law System for Separating Families' has heard (5 December).

The Department of Justice was planning a review of the effectiveness of such mechanisms, the webinar was told.

Researcher Dr Simone McCaughren (Trinity College) said that the interests of the child must be a guiding factor when parents and adults were making decisions about family contact. 

Guiding principle

"It must be remembered that it is the children who must live with those decisions, and that is why the best interests of children will always be the main guiding principle for contact decisions," she said.

Children had a right to have their voice heard in contact decision-making processes affecting them, whether formal or informal, Dr McCaughren stated.

However, research shows huge variation about the interpretation of the voice of young children aged up to six, with many not asked for their opinion about contact arrangements because they were considered too young.

"One of the through-lines from most research participants is that the voices of children aged zero to six years is not heard in practice," Dr McCaughren said.

"The muffling or muting of children's voices, as it is referred to in the literature, also emerged with clarity in this research," she said.

This was despite the legislative and constitutional imperative to hear children, the researcher added.

The research suggests that members of the judiciary do not feel adequately trained to have direct input with this age cohort. 

Most judges tend to refer to section 32 reports to gain input from young children.

However, research shows that social workers and legal professionals have highlighted several issues of concern in relation to this mechanism.

These include:

• Quality of reports being produced,
• Qualifications and effectiveness of assessors,
• Availability of course assessors,
• High costs,
• Extent to which reports are valued by judges.

'Bluffers'

One family law solicitor told researchers: "I think there are very few good reporters out there.

"There's a predominance of bluffers who make stuff up, and it's rarely evidence-based in my experience."

"In my experience, and it's only my experience, in 99.9% of cases, beleaguered judges follow recommendations, without any critical assessment of what those recommendations are," the solicitor added.

'Gross' factual errors

'Gross' factual errors were also rarely corrected, the solicitor said.

Research also identified a complete lack of transparency for parents, who were court-ordered to engage with a "completely unregulated service", and were also not furnished with a copy of a report about them and their children, that they had paid for, Dr McCaughren said.

Contact with the parent was a child's fundamental right, and shared-parenting families, where positive supporting relationships were maintained, were better, provided domestic violence or other forms of abuse were not a factor, the academic said.

'Shock model'

Dr McCaughren quoted one judge in research studies who described the adversarial family-law system as a "shocking model".

"It's dreadful – dreadful for us as a judiciary, dreadful for the parties, and for the solicitors," the judge said.

Current court structures that shoehorn children into existing processes were not suitable for any child, let alone a child below six, the researcher said.

Concerns

"Concerns were expressed by all professionals and family members about the infrastructure of the courts and how, in the absence of a suitable system, the possibility of introducing authentic and genuine views of children is lost amid the bigger shortfalls of the system," she added.

Another judge commented to researchers that "courts cannot be a childcare setting", and judges had no training to help them make decisions about what sport children should play, what time they should be picked up, or many of the other parenting questions they were regularly asked.

The goal of the family justice strategy would be for a less adversarial and more co-operative manner of resolving disputes that keeps families out of courts, where possible, the webinar also heard.

Ambitious strategy

The strategy was highly ambitious, and a profound change in its focus on supporting children, and keeping them informed, family-law solicitor Donagh McGowan said.

The in-camera rule will be reviewed, and a feasibility study set up to look at case outputs in a family-law reporting system that yields statistics and high-quality information.

The Family Court Bill would encourage active case-management, and facilitate resolution without recourse to courts, as far as possible, the webinar heard.

There will be an increase in the monetary jurisdiction of the Family District Court, and maintenance limits will increase to €500 per week, and €50,000 for lump-sum payments.

There will also be a review of the enforcement of maintenance orders.