Through the Eyes of the Child: A Critical Analysis of Child Participation in Private Family Law Proceedings in Ireland

AuthorCiara Ní Longaigh
PositionBCL (Law & French), LLM (Child and Family Law), University College Cork
Pages38-59
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THROUGH THE EYES OF THE CHILD: A CRITICAL ANALYSIS OF CHILD
PARTICIPATION IN PRIVATE FAMILY LAW PROCEEDINGS IN IRELAND
Ciara Ní Longaigh*
Mankind owes to the child the best it has to give1
A INTRODUCTION
Decisions are made in the Irish courts on a daily basis that drastically alter the future of many
Irish families. Irish private family law is a complex and intricate area of law, wrought by
emotions and tempered with clashes of personalities. At the heart of the court battles and
custody conflicts, lies the person most affected by the decision of the court: the child.2 The
child’s personal views are often cast aside in discussions centred on the best interests and the
welfare of the child. Both young children and teenagers are not afforded the opportunity to
ensure their views and opinions are given a rightful position of prominence in the decision
making process.3 The parties involved often focus on finding resolution as quickly as
possible, with little regard to the impact an expeditious conclusion may have on the children
affected by the court’s decision. Child participation is ‘a shifting target which has been
described in various ways instead of being given a specific definition’4 and is undoubtedly an
ambiguous term in the Irish context. Hearing the voice of the child in private family law
proceedings has been sporadic at best and has taken place on an ad hoc basis.5 In order to
increase the current levels of child participation, a fundamental reconstruction of how society
views the rights of the child is needed. Children were treated as ‘invisible members of
society…[lacking] access to justice and complaints mechanisms’6 and ‘were recognised only
as products of a marital family unit, instead of citizens in their own right’.7 Carolan notes that
the transformation of the legal status of the child from being the property of the marital
family to the current interpretation has been ‘slow and still poses a challenge to the legal
systems of many societies’.8 Ultimately, behind the ‘lack of recognition of child’s right to be
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* BCL (Law & French), LLM (Child and F amily Law), University College Cork.
1 Preamble of United Nations Declaration of the Rights of the Child (1959) UN D oc A/4354.
2 Gene Carolan, ‘Their Day in Court: The Right of Children to be Heard in Judicial Matters Affecting T hem’
(2013) 31 Irish Law Times (ns) 103.
3 Law Society of Irelan d, Submission to the Department of Justice, Equality and Defence Family Law- The
Future (2014) 4.2-05.
<http://www.lawsociety.ie/Documents/committees/Family/FamilyLawsubmission2014.pdf > accessed 16
December 2015.
4 Gerison Lansdown, ‘Can you hear me? The right of young children to participate in decisions affecting them’
Working Paper 36 (The Hague, Bernard van Leer Foundati on, 2005) 8.
5 This approach has been criticised by Parkes. See Aisling Parkes, Children and International Human Rights
Law (Abingdon, Oxon: Routledge, 2013).
6 ibid 1.
7 Teresa Blake, ‘The United Nations Convention on the Rights of the C hild’ (1991) 9 Irish Law Times 114 at
114.
8 Carolan (n 2) 105.
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heard is a lack of understanding that children have the capacities to contribute to decision
making’.9 Fundamentally, the creation of a system whereby children are actively involved in
decisions that affect them involves ‘a long and continued struggle and the challenges are
indeed multiple’.10
Notwithstanding the magnitude of this endeavour, significant progress has been made in
recent years. The United Nations Convention on the Rights of the Child (CRC)11 places the
voice of the child in private family proceedings at the epicentre of the decision making
process. Article 12 highlights the need not only listen to children’s views on the issues under
discussion but also to factor in how best a child might be accommodated in expressing these
views. In light of Article 12, many jurisdictions have taken progressive steps to include the
values of the CRC in relation to child participation at both a fundamental level in
constitutional provisions and legislation and at a more functional level in terms of best
practice guidelines and training programmes.12 In the Irish context, Article 42A has placed
the right of the child to be heard in proceedings affecting them on a constitutional footing,
cementing the significance and value of listening to what the child has to say theoretically
and enforcing the need for legislative development in relation to child participation. The
newly enacted Children and Family Relationships Act 201513 paves the way for further child
participation in Irish private family law proceedings. Section 63 inserts a provision into the
Guardianship of Infants Act 196414 which states:
‘In proceedings to which section 3(1)(a) applies, the court may, by order, do either or both of
the following: (a) give such directions as it thinks proper for the purpose of procuring from an
expert a report in writing on any question affecting the welfare of the child; or (b) appoint an
expert to determine and convey the child’s views’.15 The proceedings to which section 3(1)(a)
relates involve the issues of ‘guardianship, custody or upbringing of, or access to, a child’.16
This article intends to explore the issues surrounding the implementation of child
participation under the 2015 Act. In doing so, the framework of the child participation in
private family law proceedings as it currently stands shall be examined. Such an assessment
shall establish how both constitutional and legislative provisions can be utilised in line with
international obligations to allow further child participation. Furthermore, the potential
barriers which may exist in terms of the implementation of the 2015 Act shall be analysed
with a view to advancing how best to overcome these stumbling blocks. The article shall
examine both direct and indirect methods of participation in order to identify the
shortcomings of the current Irish family law system and determine how effective the 2015
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9 Barry Percy-Smith a nd N igel Thomas, A Handbook of Children a nd Young People’s Participation:
Perspectives fro m Theory and Practice (New York, London, Routledge 2010) 15.
10 ibid 21.
11 United Nations General Assembly Convention on the Rights of the Child A/RES/44/25 (20 November 1989).
12 Scotland have introduced training f or volunteers on ‘Children’s Panels’. This shall be re visited in greater
detail at a later point.
13 Children and Family Relationships Act 2015 (2015 Act).
14 Guardianship of Infants Act 1964 (1964 Act).
15 As per section 63 of the 2015 Act which inserts section 32 into the 1964 Act.
16 As per section 45 of the 2015 Act which amended to section 3 of the 1964 Act.

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