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

• Author: Ciara Ní Longaigh
• Position: BCL (Law & French), LLM (Child and Family Law), University College Cork
• Pages: 38-59

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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 give’1

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.