Article in Independant.ie
Caitriona Murphy: Why farm couples should take a lesson from Kim and Kanye
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 20th 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.
It is several decades since Ireland decriminalised homosexual behaviour. It was, however, many years after that before we were prepared to take the next step forward and allow for the registration of civil partnerships. At this stage, it would seem from recent polls that we would be happy to allow gay and lesbian couples to marry. I predict, however, that the issue of whether gay and lesbian couples should or should not adopt children will prove to be a much thornier issue. At this point one could hardly say there is a raging debate going on but there are some rumblings. Gay and lesbian couples cannot adopt in Ireland anymore than cohabiting heterosexual couples can, however, in practice this is far more restrictive on gay and lesbian couples than it is on heterosexual couples. Of course, it is arguable that whether or not a person or persons should be eligible to adopt is not about their rights as much as it is about outcomes for the children. I agree with that and I would hold that judged on those terms gay couples should pass the test of eligibility with flying colours.
Despite adoption having been around for a very long time, it is still a controversial subject. Many people are strongly opposed and some religions and cultures have no such concept. Abandoned children are, however, a reality and we as a society have an obligation to provide appropriately for such children. International Adoption is far more controversial than Domestic Adoption. There are probably many reasons for this, some good and some not so good. I have no interest in exploring the issue of race and culture as it arises in International Adoption. Of course cultural and race issues arise and it is important that adopters are aware and sensitive to them but do I have problems with black couples adopting white children, absolutely not or vice versa. Frankly, I think that race and cultural issues are largely trumped up by social workers who may, in fact, be opposed to the concept of International Adoption for unaired personal reasons. The biggest difficulty with International Adoption, as I have commented in previous articles, is the huge logistical problem of ensuring that the children presented for adoption are legitimately abandoned and not kidnapped or targeted by profiteers. Admittedly, there may be some couples who are so desperate for children that they could not care less how or why they became eligible for adoption, but I honestly think such couples are largely anecdotal and the stuff of adoption opponents’ arguments. The vast majority care very much and go out of their way to do things by the book. In doing so, they have to rely on the authorities to carry out the necessary enquiries and ensure everything is above board. Other aspects of adoption are also controversial as, for example, single parent adoption and gay and lesbian couple adoption. By contrast standard married heterosexual adoptions of children particularly domestic adoptions are hardly questioned. Perhaps they should be?
It is assumed that where you have a childless couple and a child looking for a home and all other things being equal, that this is a match made in heaven. Is it? Has the couple grieved for the loss of their fertility and the loss of the birth children they will never have? How do we measure their grieving? Would they ever have considered adopting if it had not been for their fertility issues? Little account is taken of the fact that the childless couple did not chose to adopt and certainly that it was unlikely to have been their first choice. In fact those assessing suitability for adoption are much happier, generally speaking, with an infertile couple than they are with a couple who might or might not have a birth child at some point. There are some good reasons why that should be so but equally there are some good reasons why making the choice to adopt as and for itself, might be a very good way to assess the ability of parents to parent adopted children which, in my view, presents different challenges and is, in fact, quite a different task to parenting birth children. It seems to be unfortunate that the social workers carrying out assessments do not put sufficient weight on the motivation and commitment to parenting an adopted child as a matter of choice.
Over the years, both as a family law practitioner and on a personal level, I have encountered groups formed to campaign for the right to adopt children from parts of Eastern Europe and from Russia at a time when it was relatively easy to adopt from China, Vietnam, Thailand and parts of Africa. I have questioned, I think legitimately, why, when children are available from those other countries, such parties want to adopt children from Eastern Europe and Russia? This was most especially so when frequently to adopt from Russia, for example, cost the equivalent of a small mortgage It is my view that a motivating factor for many such couples was the possibility that such a child would be more likely to present as a natural child than a child from Asia or Africa. Of course, this was dressed up as being less problematic for the child but in unguarded moments it was quite clear who was really benefiting from this choice. I do not wish to blame the couples for these choices but rather those who determine eligibility and who do not place themselves and their own issues under scrutiny or question their own assumptions. One such assumption is that heterosexual married couples who have fertility issues are best placed to adopt a child.
Adults who chose to adopt as a first or primary choice, can very often go into the process of parenting with more realistic expectations and be more motivated to deal with problems that they will encounter with their adopted children as and when they arise. It is well documented, though frequently denied, that adopted children can spend their whole childhood with a deep seated alienation typified by a sense of “wrongness” or “disconnect”. They feel like they do not belong or that their family is somehow an ill fit or wrong in some way. This has nothing to do with race, which only serves quite usefully in fact, to make the problem obvious, all adoptees experience a version of this. Adult adoptees will often say that they felt their adoptive mother, in particular, was somehow “wrong”. These feeling are not rational though they may be capable of being explained rationally. Adoptees will quite often, at the same time as they are expressing these feelings of “wrongness” also tell their interviewer how brilliant and wonderful their adopted mother was. Such feelings arise, it is claimed, because the child instinctively knows that the relationship they have with their adoptive mother in particular is not the same as the relationship they would have had with their birth mother. The result is a profound sense of alienation which frequently, though not invariably, manifests in dysfunctional relationships. Readers familiar with the literature on adoption will know that this is referred to in the literature as the “primal wound”. Many researchers and writers believe that the primal wound is unavoidable and that all adoptees suffer from it. Accordingly, the relationship between an adoptive parent and an adopted child is by its nature more difficult and challenging than is often the case between a functioning birth parent/s and a natural child. Adoptive parents thinking or wishing to replace lost children with adoptive children can, therefore, be in for a rude awakening and not be able to cope.
In an article I wrote on surrogacy in November 2011 I stated “it seems to me too, that adoption should be something you want to do as and for itself and not something you simply do because you have no other option.” I went on to say that in my world it would be “one of the tests for suitability” to adopt. I apologise for quoting myself, it would be so much better if others did that, however, the quote is directly on point. Research has shown that gay couples in particular and lesbian couples somewhat less so, are motivated to adopt as the route of choice to parenting. Research would indicate that gay fathers in particular do not have any expectations of being natural parents and will frequently opt for adoption as their first choice. Yet the people who experience the most difficulty in being deemed eligible to adopt in almost every country are gay couples, lesbian couples and single people precisely the people who frequently opt for adoption as their primary choice to parent. Such parents are less likely to have fixed expectations and stereotypes of how families and children should be and act. They are more likely to be open to allowing the family as it is to evolve.
Of course there is no perfect answer here and some of what I have said may seem very unfair to adoptive mothers and it is. However, this is not about fairness. Fairness is a rational concept and not a very exact one at that since it is largely subjective. What I am saying is that we need to look and who is and who is not most suitable to adopt and not just proceed on the basis of unexamined assumptions and prejudices. To be abandoned as a baby by your birth mother at birth or shortly thereafter is likely to have such a profound effect on a person’s psyche that we are only glancing at the reality rather than truly appreciating what is at issue. We have operated for decades and continue to do so generally speaking with the unexamined assumption that babies, particularly very young babies are like “tabula rasa”, an assumption which we now know to be completely wrong. On that assumption we have concluded that a baby, particularly a very young baby, can be adopted successfully and grow up with a sense of belonging and well being, leading to their being productive members of society. However, if the assumption that a baby is a “tabula rasa” is incorrect, which it is, then how well founded are any of our assumptions? New born infants can pick out their birth mother from other persons. Why is that such a surprise? We recognize in so many other ways besides sight and memory – smell, touch and sound are all potent factors in our ability to identify. A child in the womb has a profound connection to its mother. Theirs is a truly symbiotic union. For nine months or thereabouts they operate as one, never apart not for a second, feeling, hearing, tasting and experiencing together. How could we ever think that such a connection is not profound? Birth mothers know it is with every fibre of their being. The task of the birth mother in the first year of life will be to slowly introduce the baby to the reality of separateness and indeed to reacquaint herself with the idea. For both of them this task of separating will be gradual and deeply affecting. When a baby does not experience this gradual separation he or she will suffers a very deep wound both emotionally and developmentally which then frequently manifests in separation anxiety and alienation.
Hard as it may be for women to accept, the reality is that an adopted child may well find it easier to relate to a Dad or Dads whose presence does not in and of itself convey that deep sense of “wrongness” and who are not seeking to replace the birth mother. It is interesting that research has shown that a growing number of birth mothers are choosing gay couples to adopt their birth children so that they as the mother will not be replaced. It is my experience that many men, particularly educated men, resist the notion of a profound bond between baby and birth mother since if effectively marginalises them, at least for the first few years in the parenting process. It also presents the possibility that the connection with Mum short or long term is on a whole other level and will always be. It is interesting the many adoptees search for their birth mothers but have little or no interest in meeting their birth fathers. We have to stop trying to be politically correct about such things. Not everything can be viewed in the light of reasonable and fair. These are just conceptual frameworks by which we measure or organise our world. There are other measurements. The fact is that gay Dads make excellent adoptive and foster parents. Extensive and collated research in both England and the USA indicates that this is the case. What I am postulating is the possibility that they may in fact be a better choice as parents in the area of adoption and fosterage. We have always made the assumption that one size fits all and a Mum and Dad is the best way for raise a child. As RG Collingwood the Philosopher once amusingly stated “People are apt to be ticklish about their presuppositions”. I doubt therefore, that the thrust of my argument here will meet with universal approval but I would hope that it might inspire some re-examination of our own presuppositions.
In Ireland, gay and lesbian couples, despite being able to form civil partnerships at this point are still not able to adopt. In countries where it is permitted to do so such couples succeed in very small numbers indicating significant hurdles as opposed to heterosexual couples. However, I want to stress that I am very much in favour of hurdles and high standards being applied to test for eligibility to adopt for all applicants. For example, out of an annual average of 4000 children available for adoption in the UK , only 60 gay male couples had adopted and a similar number of lesbian couples. This is a great pity, in my view, where it is provable based on current standards that they are as good as any other type of couple adopting and based on my thesis here, are possibly much better. They show a great deal of flexibility in the type of child they are prepared to adopt, frequently adopting the more difficult to place older children or special needs children. Now while the cynics might have a less complimentary explanation for these choices, I would suggest that it is at least possible that their choices are more open because they are not seeking the create an ideal Mum and apple pie type family and they are lost replacing a lost perfect child. Gay parents may bring talent to the table not available to straight parents. 1) They are unlikely to be grieving for their lost fertility. 2) They are unlikely to feel that their adopted child is second best (in fact I would suggest that when gay men or women overcome the considerable hurdle that will be in front of them to adopt, they are most likely to feel that they won the lottery. 3 )They are unlikely to see adoption per se as a reflection of a failure perceived or otherwise, on their part. 4) They are unlikely to have a standard vision of how family life should look or children should be or not be.
Many arguments have been put forward against gay male adoption. I am well aware of them. I am simply going to dismiss out of hand the rampant confusion between paedophiles and homosexuals and state that anyone with an open mind can clarify this for themselves easily and should not remain confused for very long. These are two completely different things. We would not tolerate a suggestion that all heterosexual men are female child abusers, though some clearly are. Equally, homosexual men are not all paedophiles. Studies show that there is no connection between paedophilia and adult male homosexuality. Only 2% of convicted child molesters identify as gay.
The facts are that the success of adoption for adoptees tends to lie more in the area of the economic security of the family, the functionality of the family as a whole i.e., healthiness of the relationship between the couple and whether or not either parent suffers from depression. I am sure these factors are indicators for the well being of any children however, when you recognize that for an adopted child security is key arising out of their abandonment, you can see immediately why these issues would be fundamental to their well being. Incidentally women as a whole tend to suffer more from depression than men and gay men in stable relationships tend to have a low recorded incidence of depression. One US study in the University of Texas at Arlington and East Carolina concluded there was a significant reduction in problems experienced by adoptive children when they were placed in families who were economically stable, that the adoption process itself was fluid and that the family dynamic was functional.
It would be a tremendous pity if Ireland was not to avail itself of the great resource that gay couples provide to society both as foster parents and as adoptive parents. Indeed I note that gay couples have now quietly surmounted the hurdle of being accepted by the authorities as foster parents. I welcome this development but I have to ask why gay couples are acceptable as foster parents and not acceptable as adopters. If the wellbeing of children is involved, surely the same standards apply to all. If children deserve the best and they do, why would we have different standards for children available for foster care and for children available for adoption. There is a great need for children in the foster system for years to be available to be adopted by those with whom they have been placed in long term foster care and that includes , obviously, gay couples, lesbian couples and single people where appropriate.
Family Law: Assumptions and Myths.
I always thought that one of the reasons why so many of my clients ask me questions about our family law system that suggest an enormous number of people have strongly held incorrect views about what happens in family court, is because our cases are heard in camera (i.e., in private, meaning no members of the public and limited if any reporting). However, it appears that the same misunderstandings and stories abound in many of the US jurisdictions, England and Australia. I am sure if I was multi lingual I would probably find that they are everywhere and astonishingly they are remarkably similar in all of these places.
Two of the strongest opinions held by the public and frequently expressed in public would be that: 1. Men seldom if ever get custody of their children and, 2. Men lose out financially and property wise in family court compared to women. It may come as a surprise to learn that people in Britain, Australia and many parts of the US have exactly the same perception despite different systems, legislation and much longer experience in the area of separation and divorce than we have in Ireland.
As a general comment on the two opinions expressed above, I would say that women often have the same view as it applies to them i.e., that they will automatically get custody of the children however, women also feel in common with men that they will get a raw deal in family court financially and property wise. So what about those two opinions – are they true? Most men now get joint custody of their children post separation from the family courts. It is rare for that not to be the case. This means that the court recognizes that the children have a home with both parents. What it does not mean is that the children will spend precisely the same amount of time with each parent. Unless you are the ex next door or upstairs there is really no practical reality in that idea. Joint custody does not mean 50-50 when it comes to time spent with the children. It does mean that the children live for some time each month with both parents. What joint custody also means is joint parental responsibility. There is a tendency to focus on rights rather than responsibilities often to the neglect of the latter. Generally rights follow responsibilities. In other words a parent who is behaving responsibly and taking responsibility for their children is very likely to be accorded all their rights by the court, collaboratively or in mediation. Parents who behave responsibly do not involve their children in the conflict either as witnesses or directly if there is conflict because they know that this damages children no matter how upset they are. They do not refer to the other party as “your mother” or “your father”. They do not give their children gritted teeth messages for the other parent. They do not phone each other when the children are present shouting and roaring ensuring that the children probably overhear or that the parent with the children is upset and the children can see that. They do not make disparaging remarks about each other directly to the children or in their hearing. They try and keep their emotions in check around their children so that the children do not associate pleasing Mum with refusing to visit with Dad and vice versa. Remember your children did not ask to be born, they owe you nothing. If you are very lucky, behave yourself like a good parent and raise them properly they may see themselves as having a responsibility to you in your old age. For now, you are responsible for them. A good responsible parent understands that even if the other parent is behaving badly, the children still deserve one mature adult in their lives and they rise to the occasion. It is very important, however, to remember that parents have obligations and social matters which will take them out of the home at varying times and this will not change post separation and furthermore, children have varying needs, their own obligations and social matters which also require them to be out of the home at various times. This means that generally it is not possible, even if it is desirable, to divide children’s time on a 50-50 basis. Everyone’s needs and commitments have to come into the balance and be given attention in determining what will work and what will not. Parenting plans, to be of any value, need to be carefully drawn up with the help of an expert. This is most especially so in the first year or two after separation when emotions are still likely to be fairly raw, trust at an all time low and the children have an enormous need for secure arrangements so they can adapt. Lawyers need to start to use the phrase “parental responsibility” as an umbrella term when discussing these matters with clients and in public rather than the terms Guardianship, custody and access. This phrase puts the focus where it needs to be and less on the idea of ownership and rights which seem implicit in the notion of custody and access. Guardianship as a concept simply does not work since very few people seem to understand it. In summary there is no presumption by Judges or in law that mothers always get the children. Women frequently, but not always, have more overnights than men and the children tend to have their base with Mum. Quite often this reflects the fact that arrangements in place pre separation remain, in so far as possible, in place post separation.
Do women do better than men in financial terms in a separation or divorce? Not in my experience and the research would indicate that this is not the case. Quite often, though not invariably, women have sacrificed their careers to raise their families either by taking a back seat at work in terms of promotion, opting for part time work or giving up work altogether. Seldom, in my experience, do men make the choice to stay at home because of a wish to be involved more directly in the raising of children. In my experience, men who stay at home or work part time do so either because they want to work from home, ie start a business at home, were made redundant or lost their job and work part time because they are supplementing a business scheme or because that is the only work they could get. In general, therefore, women tend to have the primary responsibility for child rearing in the family and that is not in any sense to disparage the role of men but rather to state what is the “norm”. Many detrimental economic consequences flow from having primary responsibility for child care. Accordingly, women, on average, tend to earn less than men both because of the lifestyle and family choices the couple have made but also because that is still the case in fact. Therefore, women do not come into the family court in an equal position and a 50-50 split would not be reasonable or fair in such circumstances. Equality does not always mean 50-50. Research shows that men tend to recover more quickly financially following on from a divorce. Generally speaking, men have been in the workplace from the beginning of the marriage with no break and not only do they go to work, they also tend to make contacts associated with work and to nurture those contacts either on the golf course, drinks with the lads, squash, business lunches etc., very little of which, women will have any time for since a woman working part time is usually squashing a full working day into the hours she has at work and will eat at her desk or on the run and every moment not at work will be spent with her children, collecting them from school, helping them with their homework, shopping and getting meals ready, doing laundry, cleaning etc., Her social life, if she is lucky enough to have one, will probably consist mainly of the people she runs into in the supermarket, at the school drop off and those neighbours who drop into her home and chat to her while she hopes to God that they go home soon so she can get on with what she has to do. Women who are at home full time will, on returning to work, suffer financially compared to men of similar age, have huge child care costs, logistical difficulties which curtail their social lives to a minimum and few contacts to assist them to better jobs. Women who have full time careers and growing families are in a minority and will be treated separately by a court in such circumstances, each case being looked at on the facts of that case. Men recover financially because they are more likely to have a career as opposed to a job and a promotional path accordingly, they have good contacts, a track record at work and a track record financially all of which is very important to recovery. Precisely because women are often considerably less well off when viewed individually as opposed to being part of a couple and because they will continue to have, most likely, primary responsibility for the children, they need more of the financial resources of the couple than a 50-50 split would give them. However, if a woman does have more individually than her partner the courts will look at that very differently. In summary therefore, women do not “scoop the pot” when it comes to divorce.
Clients often think and frequently express the view that if the divorcing party is in the wrong, they should pay. A number of false assumptions are bound up in this. If by pay, punishment is implied, that is not going to happen. There is no punishment for wrong doing in family court except in very extreme circumstances, so extreme in fact, that as a family law practitioner I have never encountered sufficiently extreme circumstances to warrant punishment from the court. When a client refers to wrong they generally mean that the divorcing party is now in another relationship. A new relationship will not be punished by the court and the only relevance it has to their deliberations is whether or not it is directly affecting the children which might affect custody or access issues and if the relationship is depleting financial resources of the marriage. Otherwise it has no real significance. If by “pay” the client means that the divorcing party should pay all the legal bills then that too is not going to happen. Nowadays it is very rare to get an award of costs against a party in family cases and that applies right across the board no matter what the circumstances of the separation or divorce. Another aspect of this issue is the idea which clients occasionally have that if one party want the divorce and the other does not, then the party who seeks the divorce should foot the bill for both. Sometimes, if a party wants a divorce urgently they may facilitate agreement by offering a contribution to the other’s costs but that is generally as far as it goes and it is by no means common nor is there any legal obligation to do so. The idea that the divorcing party should pay either because they are in the wrong or because they are the one asking for the divorce is often combined with the belief that divorce requires the consent of both spouses. The idea is that if I withhold my consent, he/she cannot get a divorce and if he/she wants my consent then they will have to pay for it. Separation and Divorce cases do not require the consent of the other spouse. A party can apply to court regardless of whether the other party wants to separate/divorce or not.
One of the statements frequently made by clients not necessarily to solicitors but about solicitors is that it does not make any difference what solicitor you get to deal with your case. Nothing could be further from the truth. Solicitors are not all the same, nor are they all crooks or any of the statements commonly made. Solicitors, particularly in family law, operate from widely varying philosophies and approaches to legal cases. It is important to carefully select a solicitor who has the qualifications, philosophy with which you are most comfortable.
Before leaving the area of marriage, I would like to nod in the direction of another myth which is that the courts have a formula to work out appropriate maintenance and child support. They do not. Spousal and/or child support is worked on the basis of the facts of each particular case. The court has general guidelines about what is to be considered in determining these matters but there is no formula. Judges have a wide discretion in such matters.
Non marital families also have their fair share of commonly held and usually false assumptions. Unmarried fathers often believe that if their name is on the Birth Certificate this fact gives them rights. That is not true in Ireland. In Ireland a single father has to apply to be appointed a guardian of his child and no difference is made in that regard whether the father has been or is living with the child as part of a family or not at all in terms of having to apply. However, a Judge considering the issue of Guardianship would likely take a very different view of a father who has lived with his child in a family for a period of time to a father who has had no relationship of that nature. An unmarried mother is automatically a guardian of her child and she can agree to the father being appointed and they can sign a form to that effect. The form needs to be sourced from a solicitor, from a District Court Office or from some of the websites dealing with family issues. It is very important to read the instructions for the completion of the form carefully. If you plan on having an ongoing relationship with your child and being a responsible parent then it is very important that you apply for guardianship if you are a single father and if there is no agreement. This is particularly so if there is any possibility that the mother might move out of the country. I cannot stress this enough as you must either have a court case pending or have been appointed a guardian to be afforded rights under the Hague Convention in relation to child abduction. Occasionally solicitors will also be informed that the client believes he has no obligations to his child because he is not on the birth certificate. That is not true. The child’s mother can still look for child support from the father whether or not he is on the birth certificate.
Clients often articulate that they want to go to court because there is a principle involved. My late father would often remind me in the context of driving that it was no good being right if you were dead. In family cases it is never worth going to court on a point of principle. First of all, it is expensive, emotionally draining and time consuming. Secondly, the courts have limited time to hear cases and want to deal with facts and make decisions not listen to points of principle. Thirdly, your family will be even more alienated and less able to transition as a result of the exercise which in turn will result in poor communication, conflict and dysfunctional children. Related to the point of principle but not quite the same is the idea that I want justice. Justice, like beauty, is in the eye of the beholder.
Over the years I have found it very hard to explain to clients why child support and access are not co-dependent. In other words, if the supporting parent stops or arbitrarily reduces the maintenance without court order then the other parent can refuse access. Courts can take a dim view of this behaviour on the part of the custodial unsupported parent. They do not think that access and money should go together. Outside the judicial system, however, it remains the case that fathers who support their children within their means tend not to have access problems. Of course, what is within your means from your point of view and that of your spouse may in itself be a source of dispute and I should perhaps better state that spouses who support their children to the best of their ability tend not to have access problems.
Occasionally people think that if they have broad agreement with their spouse, partner or other parent then they do not need a lawyer. You do need a lawyer to draft your agreement or to look over what you drafted yourself before you present to the court. Lawyers have a check list of what needs to be sorted and you may overlook something important that will cause you problems in the future. In addition, lawyers know the correct way to word agreements to make them stick, that is their profession. Penny wise would be pound foolish in this instance. Once the lawyer has looked over the agreement then you can always present it yourself in court if you wish. Often people fear that if they go to a lawyer he or she will upset the agreement. That is a little like not going to a Doctor because he/she might find something wrong with you. A lawyer will not necessarily upset the spirit of your agreement but may want to make revisions to wording or to add something overlooked. If you pick your lawyer with care as outlined above there should be no problem. It is also important to note that one lawyer cannot represent both parties even in a consent or settled case.
It is worth remembering that most family cases do not go to court. The vast majority of cases settle. It is far better for families to try and organise their own affairs with the help of trained professionals than to have decisions imposed on them from outside. Start trying to resolve your affairs early and give careful consideration to all issues that need resolution. Above all conduct yourself with sensitivity to your children and remember the future well being of all concerned, not least your own.
Possible outcomes in marital breakdown
When you are in the middle of an upheaval such as the ending of a relationship or marriage, you crave certainty in an uncertain world. One of the most difficult things for emotionally traumatised clients to learn from their solicitor is the uncertainty of outcomes in family law cases. While some certainty is desirable, viewed from another perspective, this may well be a strength in the Irish family law system. If it were possible to sit down and calculate with mathematical certainty the outcome of family law disputes, the need for a creative and flexible approach, compassionate analysis and attention to the inherent varying circumstances in each case, would disappear and our system would be greatly impoverished as a result. The alternative is not a “free for all”. There are well established guidelines to which individual judges must have regard laid down in statute (i.e., the Family Law Act 1995 and The Family Law ( Divorce) Act 1996) and by way of precedent (i.e., judgements handed down by courts). However, because our family law system operates under cover of the in camera rule (a term which denotes the privacy of family law proceedings i.e., no public allowed which extends even to concerned family law members not directly involved and covers the manner of reporting in such cases) the public’s familiarity with this area of law and its manner of administration is not what it should be in a democracy. However, some light has now shone into this darkness and in particular recent research provides us with a welcome insight into how the family law courts are operating in practice.
Custody and access are often the most vexed issues in a family law case. From a solicitor’s point of view, they are the most difficult to manage as, understandably, emotions run high when it comes to these issues. The overall and abiding principle by which the court must be guided is “the best interests of the children”. Easy to say but hard to apply. Often, judgements, which can seem harsh when viewed against the backdrop of husband versus wife, can make a lot more sense when the children are put into the balance. With their best interests in mind, courts will want children to have security of residence if at all possible, continuity in schooling and access to friends, family and finance to enable them to continue their education and be properly cared for with as much continuity and stability as possible. This does not mean that children will never have to leave their home but it does mean that the preference of the court is to try and ensure that they will not have to leave their home if at all possible bearing in mind the upheaval caused by the marriage breakup and not wanting to add to that, continued access to their schools where possible and to family and friends where that can be achieved. I think of most of us would agree that these are the best and most desirable outcomes for children where they are achievable and since the courts will act primarily to protect the children and secure their interests, this can have the unintentional effect of seeming to unjustly favour one spouse over the other. Quite often when a court is disposed to leave children in situ it means that where the assets are limited they must be given to the partner with whom the children are most likely to reside to ensure financial security, residence and continuity. How does the court decide with whom the children should reside? Recent research into the operation of the family courts would indicate that the courts will take into account the family arrangements prior to the separation in order to determine what is best for the children bearing in mind that their goal is going to be the least possible disruption (ie continuity and security) in their schedule in their best interests. When looked at from this perspective it makes sense out of why so many women get to stay in the family home with the children post separation and divorce. It is still the case that the vast majority of couples arrange their affairs so that it is the mother who is primarily responsible for the care and raising of children. Questions like, who generally organises the children’s clothes, sports gear etc., for school, gets them up and makes lunches and breakfasts for them and ensures that they get to school, ensures they have the right books and other gear for school, takes them to extra-curricula activities or arranges for them to get there, ensures play dates and parties are attended, remembers their school dates and tours and buys the presents for birthdays, who does homework with them and is the point of contact with other parents and the school. Generally speaking while Dads are much more involved now than they were 40 years ago in the day to day routine of their children, it is Mum who carries the primary responsibility. This does not mean that Dad has no role to play or he is not significant. Quite often men will do these routine tasks when time allows or when they are available from their work commitments, however, there is an enormous difference in doing these chores because you have no other option and doing them when you are able. Women will work part time, take less demanding career paths, limit their advancement or not work at all, to ensure permanent availability to their children.Invariably, it is the mother who will take time off work to tend to sick children, who is responsible for the after school runs and who organises and cooks the meals. Of course this is not always the case but it most often the case even now. In nearly 25 years of family law, I have never encountered a couple where the wife regularly went abroad to work, attend conferences or seek international business while the husband maintained a lower key job at home or worked part time and tended to the children. My experience of high flying couples is that they are both high flyers who retain staff to provide housekeeping and child care for their families. I have come across men who work in the home but usually only arising out of a job loss and a resultant decision to remain out of work rather than actually relinquishing a viable career to be more available to their children. I make these points not to be judgemental but to provide insight into how or why judges may reach certain conclusions. As a result of pre- separation arrangements, most children will have their main base or primary residence with their mother following separation and divorce.
Despite the majority of children residing primarily with their mother’s post separation, in Ireland the majority of custody orders are joint custody orders. Custody refers to the day to day care and control of a child, the daily grind if you will.Very few sole custody orders are made now and in so far as they are made, recent research would show that they arise only where there is a risk to the children or where there has been parental desertion. Joint custody is understood as being a legal construct rather than a circumstance where the children are resident half time with each parent. However, a joint custody order would envisage both parents having residential time with the children though invariably less in the case of one than the other. It means that the children will reside with both parents but primarily with one parent. Only a minority of families post relationship breakdown can sustain a 50/50 caring and living arrangement as it requires a great deal of cooperation to be effective. Otherwise, it is a battlefield in which the children are smack in the middle. If this seems hard to fathom then perhaps I can put it in context. Some of the biggest complaints we get around the issues of access and custody post separation are:
the children do not want to come with me and that is because my wife/husband is unfairly influencing them or
when the children return from time with their father/mother they are unmanageable and disrespectful to me and this is because he/she badmouths me to them or
the father/mother buys them rubbish to eat and does not discipline them so I get to be the bad parent because I have to pick up after this or
she/he sends the children back from access with unwashed clothes and missing half the items they left with and then refuses to return them or
when they arrive to my house they have no clothes and I have to buy them new clothes which if I send them back with them, I never see again, or
she/he lets them do whatever they like when they are with him and in fact he/she is not actually spending quality time with them they are watching unsuitable tv/dvds all the time or with relatives, they have no discipline and she/he spends money on them to a degree which I cannot replicate and undermines my parenting regime.
Imagine how much worse these complaints would be in a 50-50 situation where there was no trust, liking or cooperation? No judge is going to put children in the middle of that particular minefield unless he has persuasive evidence of trust and respect between the parents such as existing cooperation and flexibility which, by definition, will not be the case of those matters come before a Judge. Increasingly parents, and most especially Dads, are expressing a desire for shared parenting. It would be my wish that we would at least try and work towards a situation where such orders are at perhaps half of all orders made. That can only be achieved by recognition on the part of parents that there should be balanced parenting within the marriage and that this is as much as issue within the marriage as it is outside it. Furthermore, how they conduct their separation and divorce will determine outcomes in relation to their children. By definition if you appear in front of a judge on matters of access then it is clear that cooperation and trust are not features of your current relationship as parents. In those circumstances, it is highly unlikely that the court will impose a regime of anything resembling 50-50 parenting arrangements. As stated previously, it is far more likely to give limited access with a view to increases on an incremental basis in the hope that once the heat is gone out of the situation the parties will start to work together. However, cooperation does not come about by sitting waiting for it to happen, people have to want to do things in a civilised manner, have to want to work towards a state of cooperation and civility. There are professionals out there with the skills to help and not hinder but the desire to do things in a cooperative way has to come from the parties themselves. While it may not be possible to become best friends after a marital breakdown, it is possible to become cooperative colleagues with the assistance of various professional experts and a strong determination on the part of the parties themselves to arrive at that goal. Frankly, if a marriage is over it may not be desirable to become best friends in any event because as soon as one or other moves on to another intimate relationship this tends to undermine that friendship. To understand the term cooperative colleagues I would ask you to think about a work place where you have colleagues you get on well with in the work situation but you do not socialise with them and this is perhaps the most desirable and sustainable type of relationship to have with an ex- spouse. For those who would like to try and have the best outcomes for the family as a whole going forward, rather than any individual within it, then there are processes such as collaboration and advanced mediation techniques which are offered by specialised family lawyers and other dedicated family systems specialists. In general, the courts will take the view that the more conflict there is, the more need for structure rather than flexibility so as to keep the need to communicate to a minimum and try to minimise the effects on children. As long as people marry there will be marital breakdown and while I am not advocating planning for failure, I do think that common sense would indicate some degree of caution, advance planning and forethought on matters of parenting and expectations for children etc., while still married. Start as you mean to go on.
All married parents are automatically guardians of their children and that remains the case whether the marriage breaks down or not. Sometimes the term “shared parenting” which is not a legal phrase in common usage in this jurisdiction, is used interchangeably with guardianship and very few people, who are not lawyers, mean the same thing by those two terms and so there is much confusion. Guardianship refers to those major decisions that all parents have to make in relation to the upbringing of their children, decisions about where they go to school, what religion, if any, they are raised in, medical treatment, and such like major decisions that relate fundamentally to a child’s wellbeing, it does not refer to the day to day decisions which are the decisions made by custodial parents. In Ireland, while married parents are automatically guardians of their children, unmarried fathers are not, and this is a most vexed subject. Unmarried fathers have to apply to be appointed guardians of their children to the court, if the parents cannot agree this for themselves. If they can agree it between themselves then they can simply fill out forms to that effect. Being on the birth certificate does not entitle you to any right of guardianship per se. In common with the manner in which the courts decide vexed access where there is an accusation that a parent is unfit as discussed above, a contentious application for Guardianship will be treated in the same manner ie the court will generally allow a “probationary” period of say 6 months before granting the application. The amount of time may vary but most Judges will decide such cases in this manner.
There are very good reasons for changing the common use of the words “custody and access” not least because they are terms also used in the criminal system. How we name things is not irrelevant and while a “rose by any other name would smell as sweet” I do not think our understanding of it as a rose would be quite the same or even anything like the same. Custody and access are win and lose words and they are words associated with the law and the law is generally operated in an adversarial manner.
Interestingly, the research shows that spousal maintenance, (i.e., where one spouse contributes income to support the other either by supplementing the lower earning spouse’s own income to bring it up to a standard, or to support them entirely so they do not have to work) is largely speaking a thing of the past. Child support, on the other hand, is pretty standard. Child support is not income tax deductible whereas spousal support is. Child support can last up to the age of 23 depending on whether or not children are in full time education. It therefore, has a time frame whereas spousal support can be life- long. Where a spouse has been entirely dependent on a reasonably high earning working spouse over a number of years, however, spousal support might be viewed somewhat differently. In the case of H v D, High Court in 2011 Judge Irvine said, “While the Respondent (wife) was very well qualified, in the present economic climate it could not be assumed that she could walk into a job tomorrow as she had practically no work experience for the past 10 years. There was also the problem of childcare.” This is a case where the option to pay maintenance for a number of years to enable the wife to return to work and having regard to the ages of the children might have been a worthy proposal in the circumstances. While the court will have regard to the economic climate where it affects a woman’s re-entry into the workplace, they will also have regard to the same climate as far as a man’s ability to provide long term is concerned. The days are gone when any relatively young woman can expect the court to take the view that there is no need for them to work at all regardless of previous circumstances. Obviously the older a woman is, the longer out of the workforce and the longer the marriage, the less likelihood that the courts will anticipate a return to work.
Just as the best interests of the children is the paramount consideration for the courts when it comes to any issue concerning children, the guiding principle for the court in relation to a division of assets and financial support going forward is “proper provision”. The court must be satisfied that there is proper provision for both spouses depending on the circumstances of the family and their dependent children. This has a number of implications. One implication is that even when there is a settlement of a case, the court is still charged with looking at the terms of that settlement in order to be satisfied that “proper provision” has been made. Therefore, evidence has to be adduced and a case presented. This applies even to consent cases as in a consent divorce for example, as much as to settled cases which were up to the settlement contentious. It means that there always has to be a hearing of some sort in each and every case to enable the court to fulfil its statutory obligations and documentation prepared and filed which might be unnecessary in other jurisdictions, which in turn has implications from a costs point of view. Another implication of the term “proper provision” is, as decided in a recent case of YG v NG Supreme Court 2011, that it does not mean that there has to be a division of assets or a redistribution of wealth as such. Rather the court conducts a judicial exercise to look at the family circumstances as a whole and decide based on factors set down in the Act what constitutes proper provision. Such factors as earning capacity, income, property and the financial resources of each of the parties, their ages, their dependents and obligations, their standard of living, their lifestyle arrangements prior to separation, the contribution that each of them made to the marriage, their accommodation needs going forward and such like considerations have to be taken into account by the court in order to determine what is proper provision in each case.From a practical point of view this means that if the marital assets have a value of €5 million both spouses will not necessarily walk away with assets or income to the value of €2.5 million. It depends on how the assets were acquired, how long the parties were married, what each brought to the table and what responsibilities and dependents each of them has going forward, whether or not that would be a fair result.
In Ireland, separation and divorce are generally a two- step process. A marriage breaks down and parties decide to separate and will generally want to sort something out at that stage. Most people will not want to wait the 4 years necessary to get a divorce before sorting out their affairs and accordingly, there may be two cases to be dealt with, the separation and then the divorce. There are cost implications of a significant nature in this and it discriminates against people of modest means. Be that as it may, for most people the possibility that either party can come back to court after a separation agreement or judicial separation order and look for what is euphemistically called “a second bit of the cherry” is too much to bear. This possibility arose because to permit divorce in Ireland we had to change our constitution and accordingly, when we introduced divorce it was a new cause of action. Technically, therefore, as it was a new cause of action, the same parties could apply for the same relief in a divorce as had been previously dealt with in a separation case. This meant that there could be no certainty that a settlement or order made in a separation was the end of the matter as far as money or property issues were concerned and furthermore, because we had legislated for divorce in such a way that parties post- divorce and post settlement or order could still come back looking for further or more relief, the whole system seemed to be tailor made for litigation ad nauseous. Clearly this is not a desirable state of affairs. Gradually, however, as case law is handed down, it becomes obvious that the Higher Courts favour as much certainty in the matter of family law settlements as possible (F and F 1995, DT and CT 2002) and they will only revisit a case in limited circumstances. The case of YG and NG referred to above deals with many of these issues and is instructive. The court had to decide: 1. What weight should be given to a separation agreement which contained a clause saying that the agreement was “in full and final settlement of all matters” on a subsequent application for divorce. 2. What effect, if any, the fact that property was inherited or wealth acquired through inherited property should have on how the courts would look at “proper provision”. 3. What effect the passage of time would have on how the courts might look at an application for divorce made many years after the separation? 4. If one spouse acquires wealth post separation how is the court to regard this on an application for divorce? 5. If there are changed circumstances since the making of the separation order or agreement, what regard is the court to have for these? 6. If a spouse received a settlement in the separation but squandered or spent that money, then what account should be taken of that? These were the questions the court pondered in the case of YG and NG and so the decisions made have great relevance for family law.*
- While significant weight must be given to a legal separation document, the statutory duty of the court to make proper provision still prevails. In looking at “proper provision” the court must look at changed circumstances. The kind of changed circumstances which the court is willing to take account of are fundamental changes such as illness rendering a person unable to work or in need of medical care/physical care which was not provided for at the time of the original agreement. In the case of F and F 2007 J Abbott ordered a property to be sold in divorce proceedings notwithstanding a full and final clause in a previous settlement, on the basis that the wife had acquired Parkinson’s. If property values had significantly reduced (or presumably increased) since the making of the original order, this would count as a changed circumstance. Exceptional change in the value of assets unforeseen at the time of separation must be taken into account (MD and ND 2011). A changed circumstance might well be the discovery of an asset not disclosed at the time of separation. This arose in the case of SN and PO’D 2009 where the husband submitted that the wife had not fully disclosed details in relation to her companies prior to the settlement as was her obligation under the rules of discovery and that she had subsequently sold her companies for a large sum. The husband was awarded a further €500K for what the Judge called an “information deficit loss” which essentially meant that he found that she had not intentionally withheld the information but that it had nonetheless not been made available to the husband and accordingly, impacted on the settlement.
- Assets which are inherited will not be treated as assets obtained by both parties in a marriage. This is a very important decision which has a lot of implications going forward. Of course, while inherited assets may not be treated as marital assets as such, they will be factored in by a judge when considering the overall circumstances of parties in order to determine “proper provision”.
- The length of time since the separation agreement is very relevant. The greater the length of time, barring catastrophe, the less likely the court is to alter the terms of the separation
- If a spouse acquires wealth post separation and the wealth is unconnected to any joint project which the parties were involved in while married, then the acquisition of this wealth is not a factor for consideration by a court in a subsequent application. Facetiously, this seems to rule out the Lotto once and for all unless the ticket was bought while the parties were married or if they used the same numbers or some such argument. This is a surprisingly frequent question, surprising in that it is extraordinary how many people expect this to happen to them. If the wealth was acquired and even though it has a connection to the marital assets, there is no automatic entitlement to an increase in money.
- The manner in which the court should deal with changed circumstances and the type of changes envisaged are dealt with in the response to 1 above.
- A party shall not be compensated for their own incompetence. So if I squander money settled on me post separation whereas my ex- spouse prudently invests and acquires wealth, I will not have an entitlement to come back against his/her wealth except I can make a case that I had no choice but to squander my settlement because he failed to honour his agreement by, for example, not paying me maintenance which had agreed to do or because I got ill or some such.
The court found that a separation agreement, freely entered into, is a legally binding document and therefore, weight must be placed on it and most especially if it has a “full and final” clause in the agreement. In determining whether proper provision has been made under a separation agreement or foot of a separation order, the court will look at the standard of living of the parties at the time of separation and not necessarily the disparity in their standard of living as might exist some years later. The duty to make proper provision does not amount to a duty to redistribute wealth. If the circumstances are the same post separation as when the parties separated then prima facie the provision should be considered proper.
Of increasing relevance in the current climate, is how the court views bank debts and creditors with the competing interests of spouses and children. The case of YX and XY is useful in this regard. In this case which involved substantial assets but even greater debts the court transferred the family home and an attaching mews to the wife being the only assets of worth as all the husband’s property was in negative equity. The court said….”it was the duty of the Family Court while bearing in mind the Bankruptcy Act 1988 to act with probity and only for the purpose of making such provision as was necessary for the spouses in accordance with the 1989 Judicial Separation and Family Law Reform Act as amended. The proper exercise of this jurisdiction involved not the division of assets between the spouses to the exclusion of the creditors but the provision of necessities such as living accommodation, basic maintenance and in appropriate cases security therefore. This should not be allowed to act in an oppressive manner over the rights of creditors. In the case of O’C v O’C 2009 J Dunne found that the needs of the family as a whole must be considered. The family home was the only property to retain any realistic equity given the precarious nature of the Husband’s financial circumstances and the needs of the wife and the dependent children are most closely met by transferring the entire interest in the family home to the wife.
*I think it is only fair to say, in the face of much incredulity from the public now, about this state of affairs is that it has nothing whatsoever to do with lawyers or the judiciary and arises because the public during the divorce referendum debate made it abundantly clear that they would not pass a divorce referendum if there was any possibility that, a woman in particular, would not be able to revert post-divorce seeking further relief should that need arise and this in turn ensured that the legislation was framed in such a way that once off settlements were difficult if not impossible under the terms of the Act but, as is often the case in Ireland, the judiciary as opposed to politicians, have grasped the nettle and have taken decisions based on people’s actual needs and what makes legal sense.
Human beings have basic emotional needs some of which are to be accepted, respected, valued, needed and useful. All these needs can be called into question if a person or couple finds that they are unable to conceive a child for any reason. Infertility, and the resulting childlessness, can often, though not invariably, lead to profound feelings of inadequacy, emptiness and uselessness. This in turn can seriously impact on a person’s relationship with their life partner. The problem of infertility is as old as time. In our modern age, however, we have reproductive technology. This technology combined with global travel and the increasing commercialization of all areas of life provides us with fertile ground (pardon the pun) for debate.
To many of us, surrogacy can seem like something from Brave New World. However, surrogacy is not new, indeed, it is mentioned in the Bible. Sarah, Abraham’s wife had her servant Hagar carry and deliver her first baby, Esau. What makes surrogacy in modern times seem like something straight out of a science fiction novel is the extraordinary range of reproductive technologies that we have evolved in a relatively very short period of time, since the late 1970s in fact. The commercialisation of surrogacy gives rise to profound legal and ethical implications for all of us. We must now ask the most basic questions such as – Just because science can do it, should it? Another – even if money can buy it, should it? But these only seem like new questions. In fact they are or versions of them are the basic questions arising in practically all moral issues in our modern world. As in all moral questions your answers will determine where you stand.
Many opponents of reproductive technologies argue from the basis of the natural order of things. If you don’t have children, then maybe you were not meant to have them and/or it is against nature to tamper with such Godlike matters as birth and death. However, we tamper with birth and death in all sorts of ways and have done for a very long time. Many of us practice birth control or family planning for example. We also manage pain and suffering due to advances in medical science. We are constantly researching and sometimes successfully discover cures for various previously fatal illnesses and diseases. There will be those who oppose even such practices and such opponents have the merit of consistency. Few of us, however, now feel that we should experience profound physical suffering if it can be prevented by modern medicine. However, the hospices which seem such a byword for compassion and humanity have not always been widely accepted and were controversial in their time. We argue the standpoint of “natural” from the yardstick of our culture, time, location, experience, class background, education, religion, politics and morality. Ancient practices, and not so ancient but different practices, can seem barbaric to us. Plato and Aristotle, founding fathers of much of our western thought processes, educational standards and cultural standpoints ,both saw infanticide from the perspective of their culture as necessary and permitted. Indeed, infanticide was widely practised in ancient societies including Europe as a means of family planning, poverty control or primitive eugenics. We would not consider making the argument of “natural” now in this context but from the perspective of that time, it would have been a viewpoint. “Natural” can be used to justify apartheid as much as it can be used to argue against reproductive technology.
Legal experience has shown that when science gallops ahead and politics and society drags its heels, necessary debates are overtaken by developments and events. This frequently leads to poor law passed in haste in response to emergencies rather than carefully balanced and considered. Reproductive Technology has been forging ahead since the late 1970s and it is time for us to grasp the nettle. We have a tendency to react as if ignoring something will make it go away. We are an island nation but we are no longer isolated. We are part of the international community and developments in one part of that community will affect us here and there is no way of avoiding this. If surrogacy is allowed in other parts of the world and is accessible to Irish people then Irish people will avail of it with the implications that has for the rest of us. In Ireland we took the initiative some time ago and commissioned a report on this matter. This was filed in 2005 entitled “Report of The Commission on Assisted Human Reproduction”. Then, as with so many things, we left it and rested! This report is superb. It is comprehensive, explains much that needs explanation about various reproductive technologies, terms in common use, issues and developments. It names and deals with the legal and ethical issues as they arise and makes recommendations for legislation based on findings. In short it makes a very complex area readily understandable to those without a scientific background and that is quite an achievement. From a global standpoint, if the recommendations of the Commission were to be adopted into Irish legislation, Ireland would stand at the cutting edge. Perhaps not everyone wants this for us but to have no legislation at all, which is our current position, is the worst of all worlds.
Now it is scientifically possible for a baby to be created in a petri dish from the sperm of a man and the egg of a woman and the resulting embryo can be transferred into a second woman to gestate. Reproductive scientists are able to accurately tell if a created embryo might carry a specific disease. The use of embryos, the by-product of such technology, for research is in itself highly controversial. For some time now it has been possible to tell the gender of a child in the womb however, now it is possible to tell the gender prior to implantation in the womb. Soon we may have the technology to determine hair, eye colour etc. All these developments give rise to issues and indeed when combined with politics and culture, can have very unintended results. Such power is breathtaking. It can offer wonderful promise and hope too many people, infertile couples as well as the treatment of many diseases. However, such power comes at a price and not just monetary, the price of responsibility. How do we control and regulate these developments?
Prior to the development of reproductive technology in its current form, it occurred to many people that controlling who can breed was desirable. People believed that they could eradicate poverty, for example by such methods. Their motives were not always bad, many were well motivated. However, these ideas in the hands of, for example, Hitler, led to the mass extermination of “undesirables” and to breeding programs to create an Aryan race. Many fear that the same potential exists with this technology except that now we have a very real possibility of being actually successful. In present day China and India our ability to tell gender is being used to abort female children. Historically, and even in modern day China, it would be an understatement to say that females were and are undervalued. It was commonplace to commit infanticide on unwanted female children. China then introduced the one child policy to curb its population. Put those three things together and it was hardly surprising that the new technology enabling gender recognition would be used to abort female children since if you could only have one child, you would certainly want a boy! Now we have a situation where on a very conservative estimate China will have 30 million more men than women by 2020. There are enormous social implications to this which deserve another article. India is also using reproductive technology to abort female children. Like China such children are not valued. In India, the average birth rate is 927 females to every 1000 males. In some places the number of females is as low as 800. Average out that difference over say 50 years and you have a problem similar to China. Recognition of the problem in China led to relaxation of the one child policy but not its abolition. In addition, the government is now offering incentives to couples to raise girls.
Many people when confronted with the problem of infertility will argue that such couples should adopt. Adoption is also controversial and particularly international adoption. There are those who consider it a form of child exploitation. Regulating adoption, particularly International Adoption, has proved and continues to prove very difficult. Without considering any of these difficulties which are the material of articles in and of themselves, we need only mention that to adopt, a couple has to go through enormous hoops and it is a very long process. Adoption regularly takes 4/5 years to complete. It seems to me too, that adoption should be something you want to do as and for itself, and not something you simply do because you have no other option. Indeed, in my world this would be one of the tests of suitability to adopt but that is another discussion. For single parents, cohabiting couples, homosexual couples (people who are controversial particularly in the area of parenting in and of themselves) can find adoption very difficult if not impossible. Surrogacy often proves a better option for a whole range of people than adoption.
A surrogate is a woman who for financial and/or compassionate reasons agrees to bear a child for another woman who is incapable or less often unwilling to do so herself. The least controversial type of surrogacy is what is often called “altruistic surrogacy” and also referred to as compassionate surrogacy. Many of you may remember that in the TV series “Friends” one of the girls acted as a surrogate for her brother and his wife. Altruistic surrogacy generally occurs where people are related or close friends. Such acts seem noble and therefore, above reproach. This seems to make them morally justifiable. In some parts of the world, like most of the Australian territories with the exception of the Northern Territory, altruistic surrogacy is legal but not commercial surrogacy. When we bring strangers and money into the equation, the issues seem different. But ,of course, if we examine either of these positions in any depth, they do not hold up. The road to hell is paved with good intentions and to do something to help a friend does not make it the right thing to do from a societal point of view though it may be morally justifiable if you look at morality from a purely personal perspective. Should law be concerned with the personal perspective or the societal good? Taking money does not make an act intrinsically immoral or wrong. Compassion and money are not mutually exclusive and many commercial surrogates will still derive enormous satisfaction out of the feeling of having assisted a couple in difficulties. Many surrogate mothers will be and are motivated to offer this service not just for monetary gain. I am conscious too of how the use of certain words can act as a palliative to our sensibilities like “expenses” instead of “fees or payment”. All too often these words are used as a thin veneer for what are in fact commercial payments. In Ireland, for example, because of moral sensibilities around contraception we engaged in the duplicity of donating to family planning clinics rather than buying contraceptives for years. It was simply a ruse to get around the law and nothing more. Whether we called it a donation or not, we were in fact engaged in a commercial transaction, we were buying contraceptives. I think we need to take an honest look at this whole area.
It is fair to say that the waters become even murkier when we consider a comparatively wealthy western educated couple and a socially deprived developing world woman. The inequality of bargaining in such relationships gives us much pause for thought and worry. There is no doubt that the situation is ripe for exploitation, not only it has to be said by desperate Westerners, but also by corrupt forces within those countries themselves particularly countries where women are second class citizens as in India. To commission in India costs about one third of what it costs in the US. In my opinion the answer lies in regulation and International Agreements which won’t completely prevent corruption, they never do, but will go a goodly distance.
The question arises as to whether or not the use of international surrogates is a form of human trafficking? Why confine that question to “International” surrogates ? “International” in this context seems to be a euphemism for “poor”. However, asked in a general way the question has validity and there is no pat way to answer it. Many have answered that the price paid to the Indian surrogacy agency of around €15K of which the woman may receive €8K or so is relatively good compared to the standard of living in India. I have no doubt that this is true but is it an answer? In the recognised agencies in India the women surrogates receive excellent medical care during their pregnancies , ironically enormously better than the care they would receive in a normal standard pregnancy. Does the care given make it ok? I don’t think either of these facts goes to the root of the question. They simply appease but they do not satisfy. Are we saying that if we pay an Indian woman the same money as the US woman that would make it ok? If that is what we are saying then I think it is reasonable to argue that in the market place it is fair to pay what the market dictates. Overheads, standards of living, wages etc are all hugely cheaper in India. What the Indian woman can buy for €8K is equivalent to what the US woman can buy for €50K. On the other hand, if we are saying that the process is wrong and that it is inherently repugnant regardless of what we pay then that holds true for all surrogacy whether compassionate, for expenses only or for commercial reasons whether in India or anywhere else. When we talk about surrogacy as human trafficking I think we are equating it with prostitution. Is it an acceptable argument in relation to prostitution that if it is financed properly and the women are looked after medically and well paid, it is then ok? Many would say yes. There are others who will say that prostitution dehumanizes and alienates and is never justifiable. However, those are characteristic features of many transactions where physical labour is involved. We know prostitution exists regardless of legal bans. We know that outlawing it can often make it more dangerous and even more exploitative for the women on the streets. If we legalise it then where do we draw the line, would we ask prostitutes to pay taxes in other words make it a legitimate job? These are uncomfortable things to think about but we have to think about them. Such research as I am aware of in the UK conducted with surrogate mothers indicates that overwhelmingly surrogate mothers were happy with the experience of surrogacy and few of them experienced any deep or lasting sadness and regret about handing over the baby once the pregnancy concluded. I doubt that the same result would occur if we surveyed women who gave up their babies for adoption for example. There is nothing simple about this. At the end of the day, I think that if a woman wants to offer herself as a surrogate and if she is guaranteed proper medical care in reputable certified agencies, if the manner of how her surrogacy is conducted is exactly and precisely the same as in any Western country allowing this practice i.e., she is not subject to unacceptable health risks and if she is protected under contract and by the law of her country, then it seems to me that she has every right to choose this way of making money for herself and her family. However, such safeguards and guarantees would make surrogacy more expensive in the developing countries and would also only come about if the whole area is properly regulated by law. Surrogacy is now an International phenomenon. We have no law governing this area in Ireland. Developments in reproductive technology and the passing of enabling legislation in other countries, impacts of us whether we like it or not. Desperate Irish couples will commission surrogates abroad just like their counterparts in other countries and take their chances here with the law as it stands. Is this irresponsible, perhaps but it is nonetheless happening. We need to step into the breach and regulate.
The whole topic of reproductive technology could be used as a philosophical starting point for an ethics class. I have only touched on some of the ethical issues, there are many more not least what happens to the spare embryos, the by product of surrogacy? This one gets right down to the whole thorny issue of when life begins. From a legal standpoint in Ireland our controversial Article 40:3:3 which protects the life of the unborn is unclear as we now know as to whether protection applies from fertilization or from some subsequent point in the process. Lack of clarity in this area has implications for the provision of AHR services in Ireland. These and other issues are for another article. There are property rights in question around some of these products, issues of storage, questions as to who should and should not qualify as commissioning parent/s as well as issues of health, class and exploitation. I have only scratched the surface of some of these questions and not looked at others at all. I intend to revisit this whole area. Another fascinating question is the whole question of extremes – how far is too far? Do we allow people to commission designer babies if and when that technology becomes available which it will and if not, how do we stop them? Cloning? Dolly the sheep was one thing, but human beings? Finally, for now, to what extent are our imperfections as human being, our little design flaws or not so little design flaws, part of a necessary humanizing process for both ourselves and others? All this and I have not touched on the law yet but I will – later!
Apply – Don’t Fly. An Examination of the Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention on the Civil Aspects of International Child Abduction is an international human rights treaty to which 86 countries have now signed up. The Convention is a legal mechanism to recover children abducted to another country. It is designed to bring uniformity to the manner in which the courts of the signatory countries deal with child abduction and to dissuade people from “forum shopping” when it comes to matters of custody and access. While the object is uniformity between countries in their response to kidnapping, in reality compliance between the signatory countries is not always what it should be. Therefore, while The Hague Convention offers much needed protection, prevention is still the best measure when dealing with kidnapping.
Parental kidnapping is the most common form of kidnapping and it occurs when a child is wrongfully removed, i.e. without the permission express or implied, from the person lawfully exercising custodial rights at that time. The Hague Convention covers those situations in which the child is taken from his place of residence (known as his “habitual residence”) to another country. Habitual residence does not have any legal definition as such but it generally means where the child has been resident for most of his or her life prior to the kidnapping. Obviously with older children this is easier to establish whereas with very young children who have been moving around for one reason or another, it can be a much more difficult exercise. However, whether children are older or younger, it can often be quite a difficult exercise since quite often parents from one country will live in another for economic reasons only. They may have an agreement or claim that there was an agreement to return to the country of origin as soon as practical. This sort of thing can lead to a dispute as to where parties were in fact resident as in such situations it is common for one party generally the mother to be spending periods of time in her home country while the husband is away working and joining her husband occasionally. Also an agreement or alleged agreement to return to a home country can lead to a presumption of consent when it comes to taking the child from one location to another.
Speed is of the essence in responding to a parental kidnapping. The signatory countries are charged to deal with these cases expeditiously ie they must process the case quickly through their system and give it priority listing. If the left behind parent (LBP) does not take action quickly a court may view this as acquiescence or consent to a relocation of a child or children rather than a kidnapping per se. Time is also crucial in that if a good deal of time passes (generally anything longer than 12 months) a court may feel that the child has now established a new habitual residence and may not order the child returned to his or her former habitual residence. The court has a discretion in this regard. It is important to note that the court does not look at any behavioural issues surrounding the case except that those issues impact on how they must decide the case under the domestic legislation bringing the Treaty into force. Since the case is about children, the court will only look at abusive or bad behaviour in so far as it affects the welfare of the children. Therefore, even though a parent wrongfully removed a child to another jurisdiction, it is possible under the Hague Convention for that taking parent (TP) to succeed even under the Convention if too much time passed before the matter was pursued through the courts. The passage of time can be construed as acquiescence i.e the LBP was seen to have consented to the removal. This can be a shady area as sometimes a parent will have given permission for a visit but not to a permanent stay and sometimes a parent will give permission to a permanent stay and will then change their mind or the permission or otherwise is sufficiently vague for no one to be sure either way. In addition to consent impled or express or to acquiesance occasionally, the TP is able to establish that the children will be abused or harmed if they are returned to their habitual place of residence or a child who is old enough to be heard by the courts expresses a strong view that they do not wish to return to their former residence. Accordingly, while the Hague Convention is a wonderful and much needed Treaty, it does not in an of itself guarantee return since the compliance of some of the signatory countries can vary widely from location to location and it is not a catch all, in that there are defences allowed and while these are limited, it is as well to be aware that they are there.
Looking at the compliance records of various countries under the Hague Convention as far this is documented, it is as well to remember that the resources of many of the countries, who do not comply in the way that one would hope, are often severely limited. Lack of resources can result in overcrowded courts systems, under-resourced offices and administration resulting in delays which in themselves will essentially defeat the Convention. However, while under-resourcing can be a problem, there are many countries who have resources whose compliance records are not all they should be.
The US examines compliance each year and publishes its findings in glossy reports under the auspices of the Department of State, however, it does not examine its own compliance and one has to ask why not? Is there an assumption that the US is somehow above that and that they are 100% compliant and if so, those are dangerous assumptions as there are many reasons to suspect that compliance in the US is not all it should be. Because of its economic clout, it is crucial to the success of the Hague Convention that the US becomes exemplary in its compliance. The US is in a prime position to bring economic pressure on other non compliant countries or indeed to influence non signatory countries to sign up.
With the advent of increased immigration, increased travel and globalization, taking a child or children to live in another country is now far more likely than it would have been thirty years ago. Marriage and partnerships with persons from other countries are quite common and such relationships when they break down can give rise both to the reality of parental kidnap or just to the ever present fear of kidnapping. In addition, parents who feel short changed in this country by our legal system can be seduced into thinking that they should flee or take their chances in another country before another court. Sometimes people leave because they are angry, sometimes because they are fearful or panicked and sometimes just to get even. Many others are simply, unbearably lonely in a country which is, to them, foreign, when their marriage comes to an end and they yearn for their own personal families and culture. Most parental kidnappings or threats of parental kidnapping are driven by emotions. Those emotions can range from fear, desperation and loneliness to vengeance. There are occasions, but research would indicate that they are rare, when a parental kidnapping is reasoned by the parent leaving to be the only way out because they have genuine experience that the other parent is an abuser and will harm them or the children if they stay. The Convention allows for such exceptions but the standard of proof is quite high. No matter what the motive, however, whether it is fear driven or calculated, threats of and parental kidnapping causes serious harm to relationships, to trust and can cause lasting damage to the children involved and therefore, kidnapping must be viewed as a very serious matter. Panicked and upset parents do not make for good parents and where the kidnapping is conducted by an abusive parent , a parent who has had little involvement with his/her children before the kidnapping and certainly not at such an intense level, there is grave cause for concern.
Most of us have a very difficult time imagining why a parent would kidnap a child, which can only cause harm to the child, and still claim to be guided by love for that child. Frequently, parents who commit this crime will justify what they have done by denigrating the parenting skills of the other parent or will claim that their relationship with the child or children is closer than that of the other parent. Desperate people resort to desperate measures. Most people who kidnap are genuinely convinced that this is the best thing to do at the time that they do it. Even allowing for that, it is rarely a considered action in any kind of rational way and because of that it is important to leave the door open for discussions enabling a voluntary return of the children. For parents who succeed in kidnapping their children, even for a short time, I would imagine that it is only a matter of time before they realise the sheer insanity of what they have just done. Frequently such parents return the children to the LBP after a short period of time. That is why leaving the door open for some dialogue is always the right thing to do but that door cannot stay open so long that it will then defeat the necessity for speed in dealing with this matter as emphasised above.
When parental kidnapping does happen it causes enormous suffering to the parent left behind and it causes a great deal of harm to the children as well. Frequently authorities can make the assumption that because the children are with one of their parents, albeit a wrongdoing parent, the children will be ok. That is not the case. Children who are kidnapped frequently lose their identity in order to protect them from detection as well as losing their home, extended family not to mention the other parent which causes the greatest damage of all. Without good cause, it is very hard to justify such an action in the cold light of day.
Notwithstanding the shortcomings of The Hague Convention in its operation for those parents whose children have been kidnapped to a non-signatory country, the situation is nothing short of a nightmare. They are reliant on treaties being in existence between their home country and that country and that will vary widely from country to county. As I mentioned, eighty six countries has signed up to the Hague Convention to date. Some of these countries have a sizeable Muslim population and in the case of Turkey and one or two others, are primarily Muslim. However, it still remains the case that effectively the Islamic world and Asia are not signatories and are unlikely to become signatories . Probably some of the most heavily published parental kidnappings have occurred between parents, one of whom lives in the West and the other in one of the Islamic countries. Islam’s code of private family law known as Sharia specifies that all children born of a Muslim parent must be raised as Muslim regardless of whether or not the other parent is Muslim. For Muslims there is little or no distinction between religion and law. A parent failing to raise his or her children as Muslim children would be failing as a Muslim. As far as a Muslim country goes it is always in the best interests of a child to be raised as a Muslim and as long as that thinking is fundamental to thinking in that part of the world then it is very difficult to see how the Hague Convention would ever find acceptance since it goes completely against the tenor of the law and identity. Added to that are the very different legal standing afforded to men and women in Islamic cultures and their very different legal and cultural approaches to the care and custody of children. Married women in most Islamic countries will have to ask permission from their husbands to leave the country if they wish and sometimes even to travel within the country. Children over a certain age are totally within the control of their Father or their male relatives. The age when this happens varies from place to place and there is a difference between the age this happens to girls and to boys. Usually girls are left with their mother’s a little longer. All of the above will impact severely on any custody or visitation that can be exercised within the Islamic country assuming one even got that opportunity. If a woman remains married to the Muslim man her standing is very limited by Western standards and brings risks to her in re-entering that country if she has left but if she is divorced she probably has no standing at all. It is worth mentioning that a woman who has divorced and remarried whether Muslim or not, will loose all rights to her children. Dual citizenship is not recognised in Islamic countries. Accordingly, when children are wrongfully removed from a parent in the West and brought to an Islamic country, they will almost certainly not be sent back by the authorities in the Islamic country to the West. Quite often in this situation the best that can be achieved are visitation rights in the Islamic country but even if the law permits these, a Father can still decide under the code, regardless of the court order, that he will not allow such visits to take place. Many women have found themselves unable to get their children back from such countries. Sometimes, such women have had to resort to extremely desperate measures even involving the use of retired marines to assist in kidnapping the child or children back. The re-abducter, and all those involved, is then guilty of a criminal offence and if caught will face the full sanctions of the law notwithstanding that the original perpetrator got away free. It is hard to imagine the effect on the children of this sort of thing. In a post 9/11 world it is very easy to characterise this as a West v Islam problem. However such characterization will not serve us well as the tendency for the West to demonise Islam is one which vested interests in the Islamic world, not friendly to the West, tend to welcome. At the end of the day economics, education and cultural ties are more likely to resolve these difficulties than any other and that is where we should be looking. It is however, worth noting that while there is much lip service paid to Children’s Rights and indeed to Human Rights, they rarely get in the way of trade and indeed other politically vested interests and that is true of the West as much as of Islam. Accordingly, pressure needs to be applied in our backyards rather than pointing the finger overseas.
Apart from the Islamic world however, there are a number of black holes when it comes to parental kidnapping that are worth noting. Japan has an atrocious record in this area and is very much a safe haven for abductors. Given trade with Japan and the number of Japanese companies overseas, it should be possible with the right pressure to get Japan to sign the Hague Convention. That would be a big step forward but ensuring compliance is the other key step. Otherwise parents will find themselves in the same position as those children abducted to Mexico ie all the legal paperwork and processes in place but no substantive relief to be had, only an expensive road to nowhere. Mexico, while a signatory to the Convention, has a very poor record as does Brazil, Bulgaria, Bermuda, Honduras, Bahamas and St Kitts. However, this is all from the point of view of the US and the experience of European countries one with the other is not documented. There are strong feelings, however, that national interests are too often a priority and cooperation between certain countries virtually non existent as appears to be the case between Germany and Poland for example. It would seem obvious to me that in the case of many of those countries mentioned by the US in its most up to date report, under funding is probably at the heart of most of the problems but there may be other national factors also. There are other countries giving cause for concern but the main difficulties identified in most of the countries with a poor track record who are signatories are delays at all stages being the Central Authority stage, the judicial stage and the law enforcement stage.
Many countries do not recognize international abduction and retention of children as a criminal offense. The recognition of this would allow for extradition treaties in some cases. It is worth noting in passing that while it is a crime to abduct a child from the US, it is not a crime to abduct a child into the US and that would be mirrored widely on the international stage. In addition, making it feasible in all countries signing, for parents whose children have been abducted to process their claim with the assistance of free legal aid in any of the signatory countries, would ensure considerably less hardship for LBPs to take action and would test the mettle of the signatory countries as to how seriously they really take this issue. All the signatory countries need to do compliance reports each year for a true picture to be gained of the extent of the problem and how it is being experience and dealt with on the ground.
In Ireland more children are abducted into Ireland then removed and this in and of itself gives cause for concern. If Ireland is an attractive place for children to be abducted into, that suggests we are abduction friendly to some extent and we need to examine that. In Ireland, legal services for those whose children have been abducted are arranged through the Irish Central Authority with the Legal Aid Board Solicitors exclusively. That means that LBPs whose children have been abducted into Ireland do not have to face horrendous legal bills at any rate. There are undoubtedly substantial other expenses involved such are air travel, accommodation and so forth. TPs can apply for legal aid in Ireland but must qualify under the means test for same and if they do not, will have to be privately represented. The role of private solicitors in abduction cases tends to be limited to those parents who decide they wish to be privately represented or a parent who removed the child and is not eligible for legal aid or a non-Irish lawyer seeks legal opinion in relation to Irish Law. For example, a removal or retention is wrongful under Article 3 if it is in breach of custody rights that were actually exercised or would have been but for the removal or retention. “Rights of custody” are defined according to the law of the country in which the child was habitually resident immediately before the removal or retention. In addition, applications under Article 21 of the Convention which relate to access rights are not legally aided. A parent whose child has been abducted to Ireland or a parent whose child has been abducted from Ireland should immediately contact the Dept of Justice Equality and Law Reform at Bishop Square, Redmond Hill, Dublin 2 and pursue the matter from there.
It is worth remembering that while international abduction is a very serious problem and is on the increase, the number of overall kidnappings is still quite small. There are a number of indicators that would allow a person to estimate the risk in each situation. These indicators have been compiled by profiling over a number of years based on various case studies. As I have said prevention is probably the best strategy to adopt. I intend to write another article on these two points very soon.
“She, He or It “
In 1997, Dr Lydia Foy an Irish dentist, at that time unemployed, registered as male on her birth certificate, applied to the courts in Ireland represented by FLAC (Free Legal Aid Centres) for the right to alter her birth certificate to reflect her gender of choice. She had been married with two children. She had separated in 1991 and in 1992 she underwent gender reassignment surgery in England, such surgery not being available in Ireland. My understanding is that this surgery is still not available in Ireland but interestingly the Eastern Health Board (as it was at the time) contributed money to the surgery. At the time of her application, Dr Foy had changed her name legally and her passport, driving license, medical and polling card all reflected her new name but not her birth certificate. After her marital separation Lydia was granted conditional access to her children at first, however, in 1994 the Irish Circuit Court prohibited all access. I have no idea why the Circuit Court arrived at that decision but I can make an educated guess. One can only imagine the suffering, confusion and embarrassment all this must have caused on every side of the equation. Recently, I listened to a transgendered woman being interviewed on the radio as I drove into work and she said that she was pleased that her ex wife at the time that she was undergoing gender reassignment surgery kept their daughter away from her because it meant that her daughter did not have to deal with all that stuff at that period and equally, she did not have to cope with her daughter’s confusion and possible pain when she had so much on her plate at that time. Much later she made contact with her daughter through a happy accident and discovered a wonderfully broad minded girl with whom she now has a great connection. I do not know how things worked out for Lydia Foy in that regard but I can hope. I know that at the time of her application to the court, the barrister representing her wife and children who contested the application when it came on for hearing in 2000, was a chum of mine, and from what I heard the children were very angry and confused about the whole business. After reserving judgement for nearly 2 years which must have greatly added to the suffering, the High Court eventually handed down a decision rejecting Dr Foy’s challenge. Then by a twist of fate, 2 days after the decision, The European Court of Human Rights (ECHR) handed down a decision in the matter of Christine Goodwin v UK, who was a British transsexual, that her rights were violated under articles 8 and 12 of the Convention. In 1970 in the High Court in London after 7 years of marriage, Arthur Corbett, a member of the British aristocracy, filed to have his marriage to April Ashley declared invalid on the grounds of Ashley’s sex. She was a male to female transsexual, a society hostess and a model for Vogue. Corbett was well aware of Ashley’s background and had been at the time of the marriage. She had been “outed” as a transsexual by either, The News of the World or the Sunday People (the morals of those particular rags are consistent at any rate) depending on which report you read, in 1961. The Judge ruled that the key criteria for deciding sex were chromosomes and internal or external sex organs. He ignored psychological factors or the effects of gender reassignment surgery and stated the essential role of the female in marriage was to have children. He went on to declare the marriage void. This decision guided Britain until 2004 when after the Christine Goodwin case in the European Court, the Gender Recognition Act 2004 in the UK was passed. Ironically, April Ashley applied in 2005 and was finally given a Birth Certificate showing her female name and gender. The Goodwin decision opened the door for the Foy case to be reviewed by the Irish courts. In 2005 it was back before the High Court who ruled in favour of Dr Foy finding that the Irish State was in breach of its obligations under the European Convention on Human Rights in its failure to provide recognition of the acquired gender of transgendered persons. Initially the State appealed the decision but subsequently withdrew the appeal and the way was then open for the State to deal with this matter in a proper manner. For Lydia Foy this had been a 13 year battle through the courts but an ongoing battle in that legislation has yet to be enacted and while progress has been made there is still a way to go.
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)
“I Do……provided always ….on certain terms and conditions…” Prenuptial Agreements
To prenup or not to prenup, that is the question! Most people think that a prenuptial agreement is far too cutting edge for the “likes of them” however, I saw as I researched this topic that no less a radical body than the Irish Farmers Association were calling for legal backing for prenuptial agreements. I suspect that many people feel guilt, if they even think about getting a prenup. Recently, one of my acquaintances sidled up to me and mentioned it in hushed tones “I need to talk with you about a prenup”. I told her to come and see me and then for weeks after that she would say when she met me “ I haven’t forgotten” as if it had been all my idea in the first place and I would warn that she needed to consult with me about this in good time and still no show. I began to feel like the spectre at the feast whenever I met her. In the end, she didn’t come and see me, but not for good or sufficient reasons, I suspect, more because she simply did not like the look or feel of herself as someone who had even thought about prenup before the big day. This woman had her own business which she had built up herself and so a prenup was something to which she should have given active consideration. But beyond hushed, hurried exchanges, this hard nosed business woman could not even bring herself to sit down with me and give the matter rational consideration. Why is this?
In historical terms, marriage had to do with family ties and consolidation of wealth. The contract element of marriage was to the fore. These elements are still there with more or less emphasis in different parts of the world. However, now, in the West we tend to forget that marriage is first and foremost a contract and one which is ring-fenced with laws as old as time and we focus on love. For many centuries husbands owned their wives as property as they did their children. A married woman could not possess property in her own right until comparatively recently in legal terms so that whatever she had was her husbands. Of course, she also did not have the vote or the right to divorce and so she was rightly ….”packaged” as they say. These laws have, of course, been updated, not without some bloodshed, but marriage is still a contract. Some of us only seem to reflect on the property aspects of marriage when we are separating or getting a divorce and only then with a huge tinge of bitterness. 50% of all first marriages in the US end in divorce and the number rises significantly for 2nd and 3rd marriages. Even though our marriage breakdown rate is relatively low by comparison to the US or even that of our nearest neighbour, we would not want to get smug. We have the leisure in Ireland of the “benefit of hindsight”. Because we were so late in coming to divorce, we can learn from the mistakes of practically everyone else in the Western hemisphere. We should not miss the opportunity.
At present, our legal position is that prenuptial agreements are not illegal nor do they have legal backing. The possibility of such agreements is envisaged in our family law legislation with the proviso that the court can vary them if it wishes and has a wide discretion. Should we leave well enough alone? There are very good arguments in favour of prenuptial agreements or pre-marriage contracts and I believe that we should take a fresh look at them and allow them to have legal backing on certain well defined terms and conditions.
We all agree that couples should be as honest as possible with each other before they marry. We all agree that couples need to discuss the hard questions with each other before they marry and share a common set of life goals, for example, how important are careers and money to us, do we want children, how would we like to raise them, will we both work once we have a family, how will we share finances, how will we interact with each other’s relations, family and friends, how important is time apart for each of us and so forth. There are many very important things that couples need to discuss from the standpoint of their educational and cultural backgrounds. We encourage couples to do pre-marriage courses precisely because we know how important it is that these questions get discussed and resolved or not, as the case may be, before the marriage. Yet in very many cases, they do not get discussed as is obvious to me in my job and worse than that, many people think it is unromantic to discuss things like money and property before a marriage. Yet we know that people have money personalities. Some like to spend, some like to gamble, some like to save, some exercise judicial spending and some like to budget and so on and on. Can any of us put our hands on our hearts and say that couples do not fight over money? Can any of us say that many couples do not profoundly disagree on how money is to be spent in their marriage and can any of us say that many a marriage has floundered when money shortages occurred? So we know that money is important and that for a marriage to work people need to have an understanding about money. A prenuptial agreement can help a couple begin their marriage preparation with an honest disclosure of their respective financial positions making each fully aware of each other’s circumstances. Such discussions will also lead to a crucial understanding of their respective attitudes to money.
Who should consider a prenuptial agreement? Those who are going into a second marriage should certainly consider a prenup since quite often they are bringing property into the marriage that was acquired previously or there are children from a previous marriage. People who are marrying for the first time but have children from a previous relationship, people who are marrying for the first time but one or both of whom has property or business interests and people of inherited wealth or property or those likely to inherit significant wealth. In the case of the aforementioned farmers many of them would have inherited family farms which had passed down through their families for generations only to see them being broken up as a result of a separation or divorce. As a result many farmers are not passing on the farms to their young sons for fear that the son’s marriage may not stand the test of time. This is not in anyone’s interests since we need fresh thinking in all areas of life. A prenuptial agreement is a contract signed by a couple before the wedding detailing what their property rights and expectations are upon divorce or death. Since marriage is a contract in and of itself there is nothing inherently anti- romantic in entering into a premarriage contract and since we all agree that discussions about money and property are a necessary part of foreplay so to speak, then what can be wrong with detailing those items and out expectations. As we tend to marry later in life than previous generations more of us have businesses and property entering into the marriage, and as our divorce jurisdiction gets older more of us are marrying for 2nd and 3rd times, so basically quite a few of us need to give the idea of a prenup serious consideration.
Recently, Prince William decided against a prenuptial agreement before his marriage to Kate Middleton. How much consideration he gave to it, I don’t know but a lot of headlines praised him for putting romance and love first which is quite simply wrong headed in my view. When Crown Princess Victoria of Sweden married Dan Westling, a fitness instructor, agreements were drawn up to define how wealth should be divided should they separate. Lawyers acting for the Princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name. And does anyone really think it should be otherwise? I doubt it. Still we tend to associate prenups with the rich and famous and I suppose the examples I am using here are not helping but those are the prenups we hear about in the papers. Prenuptial Agreements have been popular in Hollywood for many years and in the US somewhat less so but they have not tended to be part of British law and still less of Irish law. That changed last October when Katrin Redmacher, a German heiress, succeeded in changing the face of marriage law in England when her prenuptial agreement protecting her inheritance was upheld by the court. And what is in England today tends to be in Ireland tomorrow. In the EU, Ireland and Britain are the only countries without legislation on prenuptial agreements. In Ireland, we have, in fact, already moved towards private ordering in Irish family law by the introduction of co-habitation agreements. Such private agreements will be enforceable subject to certain formalities and as things currently stand there are no comparable provisions for married couples. However, it must be obvious that it is only a matter of time.
There is no doubt that prenups have an uneasy place in society. Robert Brown, a British Airways pilot killed his wealthy wife because he thought he had been stitched up in the prenup. He quite literally hit her over the head with a mallet. So what needs to happen to ensure that brides who want a prenup are not courting death at a later stage and that the agreement will be enforced? Well in Ireland we should enact legislation for starters and such legislation should provide that couples should each have their own lawyer and there should be a full disclosure of assets on both sides. In addition, both parties need to have plenty of time to consider the terms before signing. If an agreement is signed too proximate to the wedding it could lend itself to a claim of coercion later.
Prenuptial agreements can be extremely detailed. We tend to think of them only in terms of property coming into the marriage which was acquired before the marriage but they can also make provision for money being set aside for college education in respect of either of the spouses or children and this might prove very important if, for example, one spouse had helped financially to put the other through college in the early days of the marriage. An agreement could also make provision to set up trusts for minor children.
The Irish Farmers Association has outlined a draft prenup which seeks to protect the family farm and prevent it being broken up into unviable smaller holdings. I think our Government has a vested interest in this as well both historically and in modern economic terms. They suggest that any new assets acquired during the marriage or improvements and/or additions to the farm would be divided. This is grand in theory but as a family lawyer, I can assure you that many a great battle was fought over whether something was or was not an improvement. Anyway, something has to be left to the lawyers, you can’t have people agreeing everything themselves, where would we be?
Void or Voidable – Nullity of Marriage
Sometime ago I wrote a short piece for my website on nullity of marriage. It intrigues me that, out of all proportion to its usefulness in practice, this area tends to fascinate. Why this should be so, I am not entirely sure. Perhaps it is the very archaic nature of this area of law that draws people in. Nullity is concerned with circumstances in which a marriage is deemed invalid. Some marriages are void ab initio meaning void from the “get go” and others are voidable. A marriage which is voidable is not void until one or other party applies to court for an annulment and the court finds in favour whereas a marriage which is void is void whether a party applies or not. There is no doubt that many still associate divorce with failure and may find it easier to embrace the idea of a marriage which, legally speaking, never took place or to put it another way was legally invalid, then to see themselves as having failed. For some it may be the possibility of avoiding long term financial commitments to persons with whom they had a relationship. In the current climate some of those enquiring about annulment are interested in because of its finality ie you go to court once, and assuming you are successful, that is the end of the marriage and there is no come back whereas under our separation and divorce law there is always a comeback and furthermore, our divorce law does not allow for a clean break scenario. In addition, under our divorce legislation, a person has to wait 4 years from the date of separation before applying for a divorce and for very short duration marriages, this can seem like an inordinate amount of time. If there is a possible annulment case to be made then you can apply at any time. Whatever the reason, it is an area that continues to draw considerable attention.
It is also, more than any other area of law, ripe for misunderstanding. Many are confused between Church Annulment and Civil Annulment to a point where some believe they are one and the same. When the Church of Ireland was disestablished in Ireland in 1869, the jurisdiction of the Ecclesiastical Courts of the Church of Ireland was transferred to the High Court under the Matrimonial Causes and Marriage Law(Annulment) (Ireland) Act 1870. So while the originating jurisdiction for annulment of marriage is Church based ie Church of Ireland, there is no ongoing relationship between any Church law and Civil Annulment law in Ireland. Therefore, if you obtain a Roman Catholic Church annulment it does not entitle you to remarry in the eyes of the State and has no bearing on whether or not you will be entitled to obtain a civil annulment. Part of the confusion here arises because of the manner in which Roman Catholic marriages are conducted where the civil part of the ceremony takes place in the sacristy in the Church itself. Naturally, people then assume that Catholic Church marriages are State Marriages and so it would probably be better for all concerned if parties marrying had to undergo a separate civil ceremony and then if wished a religious service.
The development of the Law of Nullity in Ireland was affected by our lack of divorce legislation particularly from the 1960s onwards. In common with most of Europe and America, Ireland experienced changes in gender role, social mobilization, sexual standards and behaviour from the 1960s onwards. These changes gave rise to increased tension between social behaviour and the law. This in turn, gave rise to a large increase in the numbers of petitions for nullity being granted by the courts and led to judicial development of the grounds for annulment. When we say “large increase” we are still talking about small numbers in the overall scheme of things. The cost of an application for annulment in the High Court up to the mid- 1990s would have, in and of itself, ruled it out for most people and this in turn led to the common suspicion, particularly among those who opposed this way of proceeding, that it was an attempt by the well-heeled to avoid the financial responsibilities incumbent on the breakup of a marriage. Since 1996 however, it has been possible to obtain an annulment of marriage from the Circuit Court as well as the High Court. This has the effect of making the remedy more accessible for many people and reducing the costs. Even though the courts extended the jurisdiction to deal with annulments to the Circuit Court in 1996 they did not take the opportunity to enact legislation in this area which was and is much needed. Legislation would have provided a much needed opportunity to educate the public on this provision and to engage in debate about the grounds for annulment and how extensive or narrow they should be. Many lawyers had assumed that as divorce is now legally obtainable in Ireland since 1996, that the numbers applying for annulment would drop and while they did initially, they subsequently rose. I don’t have recent figures so I am not clear if this trend has continued.
As a rule, the High Court hands down written judgements whereas the Circuit Court does not. This means that we have no way of knowing whether the Circuit Court is developing the law of annulment or retrenching on it. We don’t know to what extent precedents from previous High Court decisions are followed by the Circuit Court and whether their decisions are more in line with later developments or earlier decisions. Anecdotally it would seem that there is retrenchment but there is no certainty on this. There is also concern that whereas the High Court would have devoted time and detailed consideration to these cases, the Circuit Court does not have the time allocated to family law, particularly outside Dublin, and has enormous pressure on its lists, to properly hear such cases. The public has an interest in knowing what the law says and it also has an interest in knowing in an informed way what a court is likely to do in any given case. It would be extremely difficult for any practitioner to give an informed opinion of what a Judge is likely to do in the Circuit Court since there we have little or no recent written judgements by which we can assess the situation and these cases are not commonplace so an anecdotal body of evidence is unlikely also.
Annulment can be granted on the basis that a marriage is void or voidable. Grounds for a void marriage are:
- An existing valid marriage.
- Parties are under age and did not receive a court exemption. At present the age is 18 for both sexes.
- Substantial failure to observe formalities.
- Absence of consent.
- Parties are within the forbidden degrees of relationship
- Couple are of the same sex.
On the face of it most of these areas are self explanatory and the number of cases where such issues would arise except perhaps for No 4 would be very small however, there does seem to be a public interest in retaining these grounds. The state has an interest in regulating marriage and if that is acknowledged then adherence to the formalities would be desirable. However, there is some debate in relation to 4, 5 and 6. Looking at 5 and 6 first, there are presently 29 types of relationship which are forbidden in respect of marriage. Many of these are now obsolete and the state needs to legislate on this and bring it into line with modern thinking. Marriage has been defined in the law as “The voluntary and permanent union of one man and one woman to the exclusion of all others for life.” This means that the marriage must be entered into freely and without force and it must potentially be for life, it must be monogamous and it must be between parties of a different sex. Maybe this definition needs to be re-examined. As regards couples of the same sex, I have already expressed the view that as far as I am concerned parties of the same sex should be able to marry, nonetheless, even if marriage is reserved for those of different sexes, there are still potential problems for those who have changed the sex with which they were born to the opposite sex which makes the definition, though handy, worthy of some reconsideration and debate. The area in which the court has extended itself most is in the area of lack of consent or No 4. Prior to 1970 the law on this was fairly clear. You could only plead lack of consent in a very narrowly defined set of circumstances eg. Duress, misrepresentation or mistake. To succeed in a plea of duress there had to be a threat of a very substantial nature to life, liberty or limb. However, the judicial approach to this area has greatly broadened over the years. Now the court looks for “ full free and informed consent” as the yardstick by which they measure consent or the lack thereof. It is no longer necessary to establish duress, it is enough to show absence of consent. There is, therefore, a considerable expansion in the range of circumstances that will now potentially qualify as lack of consent. It is now the case that even emotional pressure will be sufficient to undermine consent as in the case of S v O’S 1978 where Judge Finlay found that the petitioner had been in emotional bondage when she married due to the Respondent’s constant claims that without her constant attention he would die. Again, the distress displayed by a Respondent when the Petitioner would try and break off the engagement was considered by the court to exercise a form of duress on her and thus she did not give a full and free consent to the marriage (O’R and B)1995. It is important to note that where previously the fear, threat or duress which a party claimed to have been under would have had to seem reasonable to an ordinary person now the test was subjective which meant that as long as it put that particular person in fear it was sufficient. So a person who was exceedingly shy and reserved was more likely to have succumbed to pressure from her parents than others of her age as found in N (orse K) and K 1986. For misrepresentation to succeed, the Petitioner had to establish that the error was such that there was “the appearance without the reality of consent”. This situation would only arise if there was an error relating to the nature of the ceremony as occurred when an Italian man who spoke practically no English thought he was entering into a ceremony of betrothal. It might also arise if a person was drugged or excessively drunk. Misrepresentation would also occur if a person was unaware of the true identity of the person they were marrying and it is important to stress that identity here does not encompass the characteristics of a spouse. The concept of misrepresentation was also broadened and it is now generally accepted that where a party was deceived as to a fundamental feature of the marriage, the resulting marriage was void for lack of consent. It is important to note that the essential issue here was the consent and whether or not it was lacking and not necessarily the basis of reasoning behind it. However, when Judge Lavan was asked to find that a Petitioner had not consented because he was deceived as to the age of the Respondent, he did not feel that this merited a finding the marriage was void. (PM and TR) 1998. Equally, Judge O’Higgins felt that there was no obligation on the parties to disclose inappropriate behaviour to one another which had occurred before the marriage. It would appear therefore, that the courts have rowed back a little on this one. However, while it is arguable that deception does goes to the heart of such a contract, it is a question of degree and actual deception as opposed to hindsight. As in the case of MO’M and BO’C 1996 it must be matter “of substance” which has been misrepresented or there is failure to disclose.
Marriages can be deemed voidable. Grounds for voidable marriages are:
- Incurable psycho-sexual impotence
- Inability to enter into and sustain a normal marital relationship.
By their very nature nullity cases can be excruciating to sit through. A forensic examination of other people’s sex lives can be very hard on the nerves of all concerned. In a straight forward physical sense, for a marriage to be consummated there must be penetration of the female by the male which cannot be partial and which does not require insemination as part of the process. I will leave you to squirm with that one. Sometimes a person may not in fact be impotent but just not able to consummate with a particular person. This is referred to as psycho sexual which is, to put it mildly, difficult to prove one way or the other. There is an exceptionally fine line between wilful refusal and psychological repugnance. And so you have Judges saying things like a man of stronger constitution would have overcome his wife’s reservations which is another way of saying ….? You got it!
The blurring lines get even more blurred when we come to No 2 above. This ground appears to be a judicially developed ground rather than one that previously existed. Initially, it was thought that this ground could only be invoked when the incapacity arose from a recognized psychiatric disease however, as time went on, it became apparent that some personality disorders would qualify and even severe lack of emotional maturity (BD v MC (orse MD) ) 1987. Again, it is a question of degree and it is clear that the immaturity would have to be of a serious order. Given, however, the lack of legislation in this area and the lack of jurisprudence in the Circuit Court particularly, it is very subjective to each particular judge. This makes for a great deal of uncertainty in this area when it comes to advising a client. While it is arguable that the law should never be entirely pinned down and should be adaptable to different people’s circumstances to some extent, it is still the case that some certainty is desirable and expected.
So should we continue to have the remedy of annulment in civil law or should we deal with all marital breakdown in the context of separation and divorce? There are some strong arguments for retaining annulment as a remedy particularly in the area of a void marriage, ie void ab initio. However, it does seem to me that lack of consent needs to be carefully re-examined in the light of new legislation. As regards voidable marriages, I concur with various reformists in that I think these areas are too woolly to make good law and should be left to divorce to sort out. However, I would not be in favour of legislation which confines the grounds for annulment to those grounds which constitute a void marriage when we cannot get a divorce for 4 years and so it would be my view that we need to reduce the requirements to be eligible for a divorce to 2 years rather than four and secondly, we need to have provision in our legislation for a clean break. There are many other legal anomalies which result from annulment and vary depending on whether your marriage is void or voidable and these could be remedied by doing away with voidability once and for all.
As topics go, this one is highly charged! The “Dads R Us” brigade are not for the faint hearted but then I am not faint of heart. I have spent some weeks now looking at this area. This arose because of a case I became involved in where the Dad was looking for 50% of time with the children. Something struck me as a little off about this since it involved sitting down and literally counting the hours she had as opposed to him. I started to think about this and the more I reflected the more complicated this matter seemed to become.
I was struck by certain ideas as I researched this topic. I went on loads of the Dad’s websites and one thing leaped out at me and that is the tendency of Dads to see themselves as the victims of a historical conspiracy which benefits Mum and opposed to Dad when it comes to children. Nothing could be further from the truth. Historically, women had no rights to their children whatsoever. Children were seen as the Father’s property and women saw their children if their ex-husband allowed them to do so. Many women who left their homes when their children were small did not see them again until the children were adult. It is only in modern times that women have acquired rights of their own in family breakdown circumstances. Women fought hard for those rights particularly over the last century. So the situation in which Dads find themselves is relatively new and not a historical problem.
Modern Irish family law really starts in the 1980s with the passing of the Judicial Separation and Family Law Reform Act 1989. Prior to that it was difficult and expensive to get a separation from the higher courts and the grounds were very restrictive. Those who could, entered into separation agreements, and the rest just parted and left things to legal chance, a route which often led to disaster for many people, particularly for the later partners who had no rights whatsoever and no way of acquiring rights. Many used the District Courts as an informal separation route by applying for a series of reliefs under various pieces of legislation, for example, spousal support, child support and directions in respect of custody and access. However, no separation order was made and those courts had no power to deal with property /succession rights/ larger money/ insurance/company/pension or investment issues. At the time those separations were referred to as the poor man’s separation. I was practising in the mid to late 1980s and like most practitioners, I cut my teeth in the District Court. I remember those District Court applications and I believe that there were a number of factors at play which I think it would be instructive to recall. Firstly, the vast majority of Judges at that time were men and they had been raised in an era when men went to work and women looked after children. Their instinct was to protect women and children, that is how they had been raised. Secondly, most of the women who came before them were primary carers of their children and had been all along and thirdly, most if not all, of those women did not work. This began to change very significantly in the 80s and 90s when many more women were appointed to the bench and with the passing of the 1989 Act referred to above. Married women began to go to work in significant numbers and this in turn made a huge difference to child rearing. Increasingly, there was a relaxation of the traditional rigid roles that married couples had assumed after marriage and for the first time men were empowered to show affection and nurturing in both public and private. Because of these societal changes and I have only touched on some of them, it became apparent that some men were getting a raw deal from the courts in marital breakdown. It took longer to shift judicial opinion to match growing dissatisfaction in the community. Still, slowly but surely, it did change and it is now commonplace for orders of joint custody to be made by the courts.
The second misunderstanding that needs to be cleared up is the difference between Guardianship, Custody and Shared Parenting. In Ireland, all married parents are automatically guardians of their children which means that whether living together, separated or divorced, each parent has decision making capacity where their children are concerned in the larger areas of the children’s upbringing. These areas include education, welfare (physical and mental) religion and such like. This means that parents have to consult one another about where the children go to school, the subjects they take in school, whether or not they receive religious education or practise a religion, health issues and so forth. If a parent is not consulted or if the parents can not agree, then they have a right of action to court. You will note that I have emphasised that these rights accrue to parents who are or were married to one another. The law in relation to single people who are parents is different. Unmarried Mums are automatically guardians of their children whereas unmarried Dads are not. Unmarried fathers do not become Guardians of their children as a result of their name being on the birth certificate. There are many different schools of thought on the merits of unmarried Dads having the same rights as married Dads and it is for another article. Custody (a rather archaic and not very enlightened term) refers to where or with whom the children are primarily resident and who makes the day to day decisions for them. The general legal definition in the USA of joint or shared custody is that both parents have legal rights and responsibilities for the major decisions that concern children. However, in Ireland, as I have already explained, married parents already have those rights so there is much misunderstanding here about what joint custody actually means in Irish law. The truth is that joint custody does not have a great deal of meaning in Irish law. If you look at the wording in settlements and separation agreements you will see that the phrase,” joint custody with primary residence to the ‘x’ “ is the way it is generally set out. Joint custody is an acknowledgement that parents are jointly responsible for their children and are joint carers and providers for them. It does not mean equality of time or equality of day to day decision making. Much confusion results from these terms.
What then is “shared parenting”? The term was enshrined in legislation in Australia under the Howard government. It has proved controversial and much research is currently being undertaken as to the effectiveness of this legislation. Prior to the passing of this legislation in 2006, a committee was appointed to investigate this issue. It recommended a clear presumption of equal shared parental responsibility except where there is conflict and abuse. It stopped short of recommending shared custody, that is, the child spending equal time living with each parent. As you can see the Committee’s understanding of shared parenting was a mixture of our Guardianship and joint custody but it did not mean a 50/50 split of time with the children. The committee fell short of what Prime Minister Howard had promised which was a 50/50 split in time. The Family Law Amendment (Shared Parental Responsibility) Act 2006 is expressed in terms of equal shared parental responsibility rather than equal time sharing. However, the court is asked to consider the children spending equal time with each parent. There is an implicit assumption here that there is a direct correlation between the time a child spends with a parent and the quality of that relationship. Courts have tended to look at parenting in a mathematical way. The effect in Australia is that many parents feel pressurised, because of a perception of what the court is likely to do, to enter into joint parenting plans which they themselves are not able to implement and do not think will work.
There is no doubt that if Dads are relegated to visitor status this gives rise to problems. Children need to have a good meaningful relationship with both parents. I have written numerous articles emphasising the importance that each parent has for a child and how children’s identity and security is tied up with their relationships with both parents. Bearing that in mind, I do not, however, think that it follows directly from there that children are better off if they share equal time with each parent. Is equal time a goal worth pursuing in and of itself or is the health and wellbeing of the children the first and primary goal? When it comes to actually counting up who gets the most time and making a big deal about a few extra days either way then I believe that parent’s values are skewed.
There is no doubt that in some cases, equal time may work and work well. I have come across a few such cases but generally the children are a little older and can travel under their own steam back and forth . Some of the research coming from Australia would indicate that the age of the children is a very important determining factor in how time is divided. The suggestion is that younger children particularly those under 4 years, need to spend solid time with a primary parent rather than be moving back and forth between parents. Children over 10, on the other hand, may be able to sustain longer periods away from a primary parent. Sometimes we tend to look at the children in a particular family as a block whereas in fact, their developmental ages may indicate that it would be more appropriate to consider them separately as well as together. I am not advocating that children should be split up for access all the time but I am suggesting that it might be appropriate some of the time. Older children might benefit from a more adult encounter with the other parent and one on one rather than being lumped in constantly with much younger children. Other factors affect equal parenting time such as geographical proximity, ongoing conflict, ability to cooperate, financial comfort, family friendly work places and shared confidence in each other’s ability to parent.
Sometimes people think that if they have the children 50% of the time then they do not have to contribute any financial support. Again this is a misunderstanding as it depends on the relative needs and circumstances of each parent. There is no doubt that ongoing conflict and a complete failure to cooperate will make any attempt at equal time parenting a living nightmare and not just for the parents. It is worth pointing out that in researching this article I came across many websites of the children of divorced and separated parents who said that growing up they had found equal time parenting a nightmare. They felt that they were denied a place to call their own, home in other words. One retired US Judge with her own blog has written “If children are made to live equal time with each parent – instablility and a sense of no home base” is the result. Irish judges, I suspect, are a long way from blogs as yet, but I would think that their views would be similar. If you have ever had to live out of a suitcase for a sustained period of time, then you might have some idea of what it might be like for a child to live in an shared time zone.
It is important to note that often how much time each parent spends with the children is often decided long before the parties get to court. If, as parents, one of you has always been largely responsible for the children doing the day to day things with them, looking after their appointments, ferrying them around the place and ensuring they are fed etc., then it is unlikely that a court is going to favour a 50/50 shared parenting arrangement, no matter how passionately it is argued. If one parent has sacrificed his or her career by common agreement between the couple, then why would a court favour giving children to a parent for large tracts of time when that parent will be unavailable and will almost certainly have to hire someone to mind them.
What is important in parenting and what will dictate the quality of the relationships after separation or divorce is that arrangements are child friendly and work for the children, that the parents are co-operative with each other and are equally determined to make arrangements work and both are child focussed and that children are never, but never, drawn into conflict covertly or overtly. If we are to reduce conflict then going to court is not an ideal approach. Far better to consider the alternative of collaboration which not only ensures that you and your ex have to start talking again but it also helps you to learn how to re-communicate to take account of your new status. Your children will thank you for it.
Intimate Strangers – the Stepfamily experience.
When we think of family, we usually think of Mum, Dad and 2.5 children. That pretty much describes your typical nuclear family and it is the model or standard by which we tend to judge all other types of families. I always want to add “apple pie” to the Mum and Dad bit, because I think it is very much a North American concept of family. We have adopted this idea and largely have not questioned it. In older societies, the extended family can play just as significant a role as Mum and Dad. Many factors have contributed to the development of the family over the centuries including industrialization, work patterns, unionization, labour law, war, education, travel, health, hygiene, life expectancies, childbirth, contraception, divorce and technology to name but some. Our concept of children and childhood, for example, is completely different to the concept of children in the middle ages. The idea of childhood as a virtually separate state of being is a modern notion. Nowadays there are many varieties of families. We have to try and understand the implications of this for all of us. We need to try and evolve new standards of evaluation, broaden our concept of family, to ensure the health and wellbeing of those who are vulnerable in our communities and most importantly so we can stay up to date with the realities of peoples ‘ lives and design our organisations and systems to reflect that.
In Ireland, where legal separation and divorce are such relatively new jurisdictions, we are only now beginning to focus on the supports needed to transition families through these life changing events. In my lifetime, and I am not vastly ancient, I have seen our society introduce contraception and divorce. I have seen our society go from one in which the Roman Catholic Church dominated not just our religious lives, but our social, family, political and work lives to becoming a marginalised church. I have seen our schools gradually dragged kicking into the world of non- denominational education and the Roman Catholic Church lose its iron control on education in Ireland. I have lived as a young adult without mobile phones, the internet and all the other pieces of technology that our young now take for granted. As a child when we went on holidays, we went to another part of the country, we did not go abroad. Some people ventured to England. As a child I grew up without a television, we got our first when I was about 11. A brave new world indeed! In the last 15 years we have gone from being a white Irish nation to being multicultural almost overnight. I don’t know of any country in Europe, except perhaps those in the Eastern European block, who have experienced the vast level of social change in a very short space of time that we have in Ireland in the last 30-40 years.
All these changes have enormous implications for us and bring with them whole new quandaries and dilemmas for us to explore and research . To some extent that is an underlying theme of many of my articles. One major social change that flows from the introduction of divorce is the issue of step families and the related concept of “blended families”. We all grew up reading fairy stories in which the wicked stepmother was a well known character. It is almost impossible to even say the word stepmother without having an image of snow white. One did not hear so much about step fathers. Perhaps that was because so many women died in childbirth so it was more commonplace for there to be stepmothers. I am not so sure about that as poor widows featured quite a bit in those stories and there were an extraordinary number of orphans, that is children without either parent. Given the lousy press of stepmothers in children’s literature we would have to ask how much that informs any discussion we can meaningfully have on stepfamilies and more importantly how it affects children whose families are moving into that category?
So what kind of problems arise for step parents themselves as opposed to how others mainly biological parents and children feel about them? The biggest problem is undoubtedly in the area of decision making. Step parents often feel that they are powerless in their own homes and that they are not consulted about things that affect them directly. There is no doubt that access arrangements for example made by biological parents to facilitate each other, or by a court order, can directly impact on a step parent’s life as can biological children not subject to their control in any way, coming to stay for holiday breaks or overnights. Equally financial decisions made by biological parents can impact on the step parent. These are difficulties, there is no doubt about that. Some of them simply go with the territory but they can be greatly exacerbated by a biological parent who fails to communicate with his/her spouse, fails to exercise discipline and set limits for his/her children at home and fails to instil respect into them for other people. Many biological parents suffer from a great deal of guilt after a divorce and as a direct result can cut their children far too much slack. This is turn can cause huge problems in the home where the step parent has no disciplinary function but at the same time has to live with uncorrected bad behaviour and outright disrespect. Envisaging these problems before you get married is important and discussing your mutual expectations. Going into the marriage with realistic expectations is probably half the battle. If the biological parents have working agreements when you come into the picture, you are probably going to have to accommodate those rather than actively attempt to change them and this applies to visits and money.
Most of us make ourselves completely miserable by trying to change other people. You will never succeed, you can only change yourself. Recently, I came across a Step Parent Bill of Rights campaign. One of their suggestions is :” People outside the immediate family – including ex-wives/husbands, in laws and adult children cannot make plans that affect my life without my consent.” If this is what you really think, don’t do it, don’t get married to that person with the baggage because your life will be one long misery. In fact, don’t get married at all because this happens in all families. Everyone does things without consulting you all the time and most especially your growing children, their teachers, your relatives, your husband, his relatives and so on and on and on. Ex- wives in particular, will seldom, if ever, consult a step mother and they will do things all the time without consent which affect your life. They will sign their children up for sports, swimming, dance classes and such like without any consultation with you. In that same Bill of Rights there are some useful aims eg: “I will not be solely responsible for housework, chores will be distributed fairly”. That should be true for all families and not just step families. Another one refers to people not violating your private space at home and borrowing or taking your possessions. I heartily concur, this should not happen but even in the best regulated households it happens all the time. Children dress up in your clothes or take your books, sit in your chair, borrow your clothes and so on. However, we don’t want to encourage this behaviour so I think setting this type of ground rule is a good idea.
Role ambiguity is one of the issues that makes step parenting challenging. By definition a step parent is an outsider. All the advice and research indicates that you should proceed slowly and with a great deal of caution. Where possible take time to get to know the children, to formulate realistic expectations, understand the nature of their relationship to the parent you may marrying. In other words, hang back, get to know the situation slowly and insert yourself gently. Researcher Patricia Papernow calls stepparents “Intimate Strangers”. It takes time to forge bonds with people. Don’t expect your stepchildren to fall in love with you overnight and don’t expect to fall in love with them overnight either. Its ok not to feel that you want to lay down your life for your stepchildren. There is no requirement to feel that kind of unconditional love and besides the children in question will probably reject it in any event. It is a myth to think that we will all love one another and feel like family instantly. Remember that biological families are created slowly. You have time to forge those bonds, take it easy. Research now indicates that children will take double their age to settle into the new family arrangements and establish new and healthy bonds. This means that a child of 4 could be 8 before they feel entirely comfortable with their stepparent and the new arrangements. This might seem depressing if you expect to be the new Mum or Dad just like that, but if you are happy to just be a significant adult, there are a wide range of possible roles that you can play, from close Aunt or Uncle, grandparent, teacher to family friend. These roles can be incredibly relevant to children and very important. As the old saying goes “It takes a village to raise a child.”
When we love someone, we want everyone else to love them and guess how often that works out? Too often the biological parent will push the new spouse and children onto a fast track, wanting everything to be ok and pushing for that to happen. Equally sometimes the stepparent will caterpult themselves into the family and set out to prove from day one that he or she is going to be a wonderful addition. Guess how often that works?
It is not at all clear what formal parenting roles, rights, responsibilities and social etiquette should exist between stepparents and their stepchildren. This often causes unexpected conflicts. For the stepchildren, it can be extremely complicated. They may be just adapting to the fact of the divorce when new partner is introduced and then Mum or Dad remarries. The length of time between the divorce and the remarriage will have a big impact on the children and how they react. The amount of time they have been given to get to know the new person before the marriage and to adapt slowly to the idea. The sex of the child also has an impact on how they will react. However, all the research shows that the younger the children are the more likely it is that they will develop a parenting type relationship with the stepparent. Stepparents need to think seriously, however, about role they want in the children’s lives before they get involved. It is not always desirable for either the children or the stepparent that their relationship should be a parental one in the strict definition of that. The children might better benefit from an entirely different type of interaction and in turn the stepparent might feel a lot more fulfilled. The children can feel extremely guilty if they like their new stepparent and conflicted. There can be all sorts of loyalty issues for them. Frequently, one or other spouse will actively or passively dislike the other post separation and divorce. Children can sense this even when nothing is said and it saddens them and causes them conflict. They may then have to spend time with a parent who is actively hurting and experience their pain as well as their own and at the same time see the other parent happily interacting with the new spouse. These are huge issues for young minds to try and sort through.
Depending on the age of the child their reactions to the new arrangements will be very different. Children who are young adults will probably not want a new parent. Teenagers in any family tend to be busy throwing off their biological parents and are unlikely to embrace the idea of another one. Younger children will undoubtedly adapt much better than older children and bond more easily. Surprisingly the age of greatest resistance to the stepparent is 9-15 years but again, that is more the idea of stepparent as parent, than the idea of stepparent as concerned adult. For young girls whose Fathers have remarried it can be very hard to see Dad in love with someone. Young girls flirt with their Dads as part of their socialisation and monopolise them but if Dad is distracted and in love then it can seem like a great loss to them. Dads need to be aware of that. It is important to remember too, that for the children the remarriage can be the loss of a dream, the dream that Mum and Dad will get back together.
The children’s attitude to the stepparent will be directly affected by the quality of the relationship they have with their biological Mum and Dad. The better their relationship and the more secure the child is the less likely they will be to feel guilt and conflict if they relate to the stepparent. We know from the research that has been done on attachment, a subject close to my heart since I have an adopted daughter, that children form their strongest attachments early in life ie the first two years. From those attachments children will feel a pervasive sense of security. The lack of that sense of security can have very serious consequences for children and is called “attachment disorder”. Attachments are somewhat reduced after the pre-school years. Knowing this, we need to look with a more flexible eye on the role of a stepparent both from what is actually possible and what is desirable.
If we compare stepfamilies to nuclear families, they will be found wanting. We need to evaluate from a different base. Susan Gamache, psychologist points out that “While adults in step families often view their experience of the stepfamily in terms of the nuclear model, children will often construct their relationship with their step parent in ways that are beyond the nuclear family model” She argues that the term “psychological parenthood” is a term better adapted to the new family situations in that it is independent of family and biology. Some stepparents function as psychological parents and, as I said previously, that is usually dependent on the age of the child, the degree of involvement of the biological parents, and the length of time over which the relationship has developed and others function as acquaintances, relative strangers. Between those two extremes, there lies a wide range of relationships that includes greater or lesser degrees of parenting. The use of the concept of psychological parenting does allow us a way of assessing the relationships that is more flexible and adaptable, allows for the wide range of the relationships possible without the unfairness inherent in the comparison with nuclear family. We now live in a world where relationships have to be negotiated rather than taken for granted. Husbands can no longer assume that they will be bread winners and their wives will stay at home or that their wives will give up their careers and relocate wherever life takes them. These things have to be negotiated even down to whether we have children or we don’t. Things our parents took for granted about their relationships can no longer be taken for granted and similarly the relationships between parents and children. Children are being raised in a variety of family structures and no one size fits all. If the children are old enough, they need to be part of the discussion about the new family. Children who have spent a long time living with just one parent will often have developed ways of co-existing that will not easily adapt to the arrival of another party. Having family meetings is a great way of exploring these sorts of things and involving the children in the discussion. Relationships with their biological parents need to be supported. Step family life challenges us to learn to communicate with our current and former partner in a way that is extremely challenging. Happily help is at hand. Facilitating such discussion by employing the services of a collaborative team or co-mediators would be a wonderful way to move forward, hopefully, to create a parenting team if that is what the children need or else to establish the parameters of each adult’s role. As in all relationships empathy, respect, a non-judgemental attitude and being open to change will go a very long way.
In some ways the ambiguity of the step parent and child relationship allows for great freedom as it is uninstitutionalized , however, that freedom does come at a price and stepfamilies are “interesting” carrying the same meaning as the old saying “May you live in interesting times”.
At the time of writing the legal rights of stepparents in Ireland and quite limited. The Law Reform Commission has formulated proposals to ensure greater legal rights however, at the time of writing these are not in force. A biological parent can appoint his or her partner/spouse to be a testamentary guardian to act in their stead in the event of their death and in that context, as a guardian such person would have legal standing before the court. Equally one could mount an application under Section 11 of the Guardianship of Infants Act seeking visitation rights in the event of a breakdown in the step family relationship but it is hard to envisage that application being successful unless the relationship was close and of long duration.
Relocation – is it really a good idea ?
Light relief in family court is somewhat unusual. Even by family law standards, however, child relocation cases tend to be particularly glum affairs. While it is fair to say that in most family law cases, no one wins, there is no doubt that this is most poignantly so in relocation cases. Post separation or divorce it is not uncommon for a spouse to decide to move away. In the majority of cases, this tends to be the female custodial parent. While such moves away can simply be a need to get away from a perceived failure they can also be proposed for good reasons. Unfortunately, there are nearly always very good reasons why the move should not be considered. In such situations fathers may perceive themselves as about to lose everything and mothers who have often spent years being the primary parent can often be impatient at having to explain themselves and their reasons for wanting to move. Frequently, a woman will want to move back to her family of origin for moral support, practical assistance or for cultural reasons. Sometimes the marriage was the only reason a woman was living in a particular location and without the marriage this woman can find herself extremely isolated. In other cases a woman may want to move because a move will afford her economic opportunities that she will not otherwise have. In circumstances where the courts seldom make direct spousal maintenance awards and where child support can stop and start, a woman may decide that economic stability begins and ends with her own efforts. Occasionally, and these cases are possibly the most difficult of all, a woman may want to relocate herself and her children because she has remarried or wishes to remarry. Of all the reasons for relocation this one tends to be the most embittering for the non-custodial, non moving parent. For the mothers who mostly have genuine reasons for wanting to move it can be very difficult to understand why they should have to explain themselves to a person who has perhaps hurt them greatly. For the fathers it can seem like they are about to lose everything.
When a marriage breaks down it is not unusual for the fact of the breakdown to serve as a wake up call to Dad. In the US such Dads are called “divorce activated dads” which is rather cruel but makes the point succinctly. Mums can often feel quite bitter about divorce activated dads, particularly when such Dads are asserting their rights. From a child’s point of view , however, it may be an unforeseen bonus to the divorce that suddenly Dad is on the scene. Whatever Dad’s motivation, his involvement with his children is to be devoutly encouraged for their sake. I have said it frequently and often – children’s self esteem will be seriously impaired if their relationship with a parent is compromised as a result of a separation or divorce. Therefore, no matter what the cost, it behoves parents to foster the love and respect of their children for each of them and to do nothing to impair that relationship. When we become parents, that is what we sign up to and it is a sacred trust. The only exception is where one or other parent is actively harming the children in an abusive way. So what happens to the non-custodial parent who slowly and painfully builds up a relationship with their children after separation and divorce? Parents who live together have the society of their children with very little effort. They interact with them seamlessly. Parents who are no longer in the house lose that casualness, that effortlessness and their relationship becomes somewhat forced, artificial. It takes time and effort on the part of that parent to build up those relationships again so as to ensure that they are still Dad and not some visiting Uncle. To do this, they need to establish new traditions with their children, get to know them in very different ways than when they lived with them and exercise understanding and patience in very testing circumstances. Picture then the vulnerability of this parent after all that effort and time who is then faced with the news that the custodial parent is relocating resulting in the inevitablility that their relationship with their children will change yet again and maybe seriously eroded. For Mum who continues to be the parent with primary responsibility and frequently borderline poverty, it can often seem a very lonely and isolating place.
Cases for relocation tend to be highly strategic in their presentation. The person seeking to establish the move as being the best option will present a glossy portfolio of pictures of the intended new residence and schools. Glowing accounts of extra curricula opportunities and brochures from fabulously well endowed schools including letters from perspective headmasters/headmistresses. In addition a strong case will be made to show how the staying parents’ rights will be barely affected because of proposals for block access. In contrast the staying parent will present detailed accounts accompanied by photos establishing the extent of their relationship with the departing children in poignant detail. Reports from the children’s schools will show how well they are doing in those schools. If a child has a special talent or interest which requires nurturing in a certain environment then much will be made of that. Relationships with friends and extended family will be emphasised. And while all this tugs at the heart strings, we need to cast a cold clinical eye on it. On close examination the custodial parent’s reasons for travelling may have little to do with the child/ren and sometimes the non-custodial parent may not have much of a real relationship with the child/children. A non-custodial parent who has not availed of an opportunity to see children when there were opportunities is in a poor position to argue. Equally, if a moving parent establishes a strong economic need to travel and the party arguing against the move has a poor track record of payment and the payments are small, they will have a difficult time of it before the court. As one West Cork Judge colourfully put it in a case of mine “A fellow would have better standing with the court if he was working and contributing financially”. Sometimes the children are of an age where the impact on parental relations is somewhat less because they can manage their own contact and travel. An analysis of the interests of all parties can sometimes allow us to decide with confidence whether or not the custodial parent should relocate or not. Bearing this in mind, it still remains the case, however, that many people have substantial reasons for relocating just as those objecting have substantial interests.
How is a Judge to decide such cases? Should there be legislation setting out the criteria by which the courts would determine these issues? Where should the burden of proof lie? In other words should the moving parent have to establish why the move is a good idea or should it be up to the parent objecting to the move to make their case? Is it desirable or even possible to have a coherent policy on this issue or should it be decided on a case by case basis? It seems fairly clear that except for the few cases where there is absolutely no good reason for moving, it is almost impossible for a Judge to get this one right. The test in Irish law is the best interests of the child/children. However, are a child’s interests served if a parent is forced to reside in a particular jurisdiction or lose custody of the child? How will an unhappy parent impact on a child? In the USA the trend has been to permit relocation based largely on the view that what is good for the parent is good for the child.* This assumption went largely unchallenged until a piece of research undertaken and published in 2003 1*. This research which was by no means conclusive and raised as many questions as it answered. The study, as reported in the media, appeared to establish that children whose parents moved away from the other parent, were significantly disadvantaged by the move.2* This in turn suggested that courts should give greater weight to the child’s separate interests in deciding such cases. But how do you focus in on a child’s interests as a determining factor? There is little guidance on this. Comprehensive research and empirical data is thin on the ground. There is the added complication that a court cannot order a parent to stay in a jurisdiction. And even if it could, would that be desirable? After all, the non custodial parent can relocate at any time with just as potentially devastating consequences. At best all a court can do is threaten to move custody if the parent relocates or in fact move custody if the parent relocates. This is to use the children as pawns in a judicial game, the game of “call the bluff”. In my view such games are not in the children’s best interests, whether it is parents manipulating their children to want to relocate or to want to stay or the court.
It remains a fact that most moves away are undertaken for economic reasons or for reasons of support. The best outcomes for children post separation and divorce are dependent on good working joint custody and access arrangements and being in reasonable financial circumstances.3* Parents who locate reasonably close to one another and who share the care and management of their children offer the best protection to one another against the threat of relocation. The more involved the non custodial parent (being the parent with whom the children are not primarily resident) is with the children the more likely he or she is to contribute to their support and education. To have effective parenting arrangements means little conflict. Parents ought to be aware that high levels of conflict have been associated with poorer physical health in adolescents. 4* In general the courts would be mistaken to assume that children will necessarily benefit from being moved away just as we cannot establish with any degree of conclusiveness that moves cause children substantial harm. So what should we do in this situation? As always we should put our children first and there is no doubt that growing in the society of both of their parents is the best outcome for children. Are such relationships fostered by taking court actions against one another or engaging in trench warfare against one another? Surely the answer must be obvious, that they are not. I can think of little more calculated to really “do for a relationship” or what is left of it than giving evidence against one another or subjecting one another to rigorous cross-examination. When a relationship breaks down there is naturally lack of trust and conflict. We know that conflict impacts seriously on the mental welfare of children and also their physical well being. We know that lack of trust will breed hostility and lack of cooperation. We know that when we are angry, our anger infects ourselves and our children and makes them and us unhappy. We need to take steps to build up the trust and minimise the conflict. A tall order! Yes it is, and it will require sacrifice and effort. It is hard to give up a grievance, just as it is hard to give up cigarettes, even knowing that both are bad for your health. However, there are people who can help. Lawyers who have trained collaboratively and in mediation and who will endeavour to work with you and your spouse towards transition and resolutions, collaborative coaches who will help you with parenting arrangements and work on communication skills and financial specialists who will give you sound non positional , family orientated economic advise. All these people working together offer you the best chance of achieving a new trust and minimizing conflict. This is your best guarantee of a successful outcome for your children and for you.
What if it still happens that even after all that collaboration, a parent still decides to relocate? Well that can happen even with the best will in the world. Families are not static. Is that a reason for running into court? Does it mean that the collaboration was unsuccessful.? Was there a complete breach of trust? Well it depends on the reasons for the relocation. Hearing these in a calm, managed environment, where both of you are held in such a way that you can actually hear one another, still offers the best hope for both of you to work through such a possible relocation and hold firm to the principles of trust and lack of conflict that are so important to the health of you and your family. If a parent is moving with the children and on top of that there is lack of trust and conflict, then the hope for a future productive relationship between the non moving parent and the children is minimal. This in turn has negative impact on the children’s health and wellbeing but also frequently on the family purse. Parents who do not see their children and have a limited relationship with them frequently stop paying towards their children’s education and support. So, maintaining the trust is, as always, key to this and going to court is one sure way to destroy trust.
*1. Fabricius,Braver & Ellman – 2003 Journal of Family Psychology. (Commonly referred to as the Braver study).
2. “Does Moving After Divorce Dmage Kids” Norval Glenn and David Blamkenhorn. Article raises some thought provoking points on the Braver Study.
4. Mechanic & Hansell, 1989.
Its my party and I’ll cry if I want to: Experiencing Grief and Loss.
The pain of a relationship breakdown can be so intense that many of us imagine we are going crazy. Grief is painful. Few of us have real understanding of the grief process. Grief is a natural response to loss. Any loss can cause grief. Grief needs to be expressed and experienced. There is no right or wrong way of expressing or experiencing grief. Many of us coming to grief for the first time will expect more from ourselves, beat ourselves up because we are not dealing with this better. This sense that we should be doing better or coping better than we are, can in turn be fuelled by the remarks of well meaning , often equally impatient friends and relatives. How often do we hear “ pull yourself together”, “ you have to get on with it” and other such sentiments. These only contribute to our sense of misery and hopelessness. I remember a friend of mine some time ago criticising a relative of the deceased at a funeral because she was crying and saying that you would think she would keep it together for the sake of the deceased. I expect the deceased was beyond caring and as for others, their feelings of discomfort are for them to reflect upon. The truth is that grief can take many forms. Some of us will cry and some of us will not and it is okay either way as long as we keep in touch with ourselves and others, express the feelings and allow ourselves to experience what is happening to us. Repressed feelings will out and sometimes in very unhealthy ways. Crying does not mean we are weak, it is just a way of coping. I have found in my practice that when people gain an insight into what grief is like, they manage a lot better. Knowing what to expect is half the battle.
In the 1960s, Dr Kubler Ross wrote a ground breaking book about the stages of grief. Like all great insights, it has been carried too far and taken too literally by many. Her 5 stages were:
Denial – This is not really happening.
Anger – Why me, what did I ever do to deserve this?
Bargaining – Come back to me and I will……..
Depression – I am too sad to do anything
Acceptance – I am ok with this now.
The use of the term “stages” has confused people into thinking that we can travel through this process like a well worn path from beginning to end. They ask themselves – what stage am I at now and if the answer is not what they expect, they retreat into thinking there is something wrong with them. However, grief does not tend to be experienced in stages, rather it is experienced like waves and like waves it can move back and forth as it gather momentum and then ebbs. So, sometimes we will seem to be pulling out of it and then find ourselves right back at the beginning again. It is ok and it is perfectly normal for this to happen. The important thing is to know that it can happen and that while you can move back and forth through the various stages, the peaks and troughs will get less intense as time passes. At the end of her life, Dr Kubler Ross talking about the five stages said “They were never meant to help tuck messy emotions into neat packages. They are responses to loss that many people have, but there is not a typical response to loss, as there is no typical loss. Our grieving is as individual as our lives”. So while there are elements in all grief that are recognizable – how we deal with those elements is as individual as we are.
Not everyone who grieves will experience denial or their experience of it may be very short indeed. Some will experience this stage more as a kind of numbness rather than an active denial. They will feel like they are acting in a movie of their life rather than actually experiencing it. Things will take on a dream like quality. There can be a nagging sense of unreality, an experience of emotional distance from those around us. For those who do experience denial it can often manifest in refusal to change things in the home because of an often unexpressed belief that the lost one would be upset if you were to do so and correspondingly, the unexpressed belief that he or she will return. The anger can be frightening and overwhelming and can seem irrational for example, what is the point of being angry with someone for dying but people are all the time and again it is important to realise that this is normal. In the midst of this maelstrom of emotions, there is very often guilt. Guilt at things I should have done, things I said that I should not have, things I did not say and so on. Most of us raised in Catholic households no matter where we stand now, will recognize bargaining! It can be exceedingly disconcerting for the confirmed atheist to find herself in full-scale bargaining with the Almighty in the midst of grief. Bargaining can take many forms but usually consists of promising to do something in exchange for the return of that which is lost. Sometimes we can bargain with the departing partner, or sometimes with the Almighty, it depends in each case on the loss involved. The Depression stage is experienced as an energy sapping sadness, a feeling of despair and hopelessness which crashes over us in waves and it is extremely debilitating. This is the time that no matter what stimulus came along, we would not feel like stirring ourselves. It is normal to feel this. Don’t try and hurry it along. Don’t fight it. Just experience it. We need to let it happen. Finally there is the Acceptance or Resolution when we don’t stop feeling but we are simply at peace, out the other end so to speak.
We often think of grief as an emotional process but many of us who have experienced profound grief have felt it as physical at times. Grief can actually manifest as a physical pain in the form of stomach aches, sleeplessness, choking feeling, shortness of breath, panic attack, loss of energy, weight gain or weight loss. Some of these symptoms can ambush us at the most inconvenient time, when we are driving, at work meetings and so forth. Sometimes not realising what is wrong with us, we will rush to the doctor to medicate us out of our pain. No medication will take away this pain. It will only suspend it. In order to heal you have to deal with the pain, not by repressing it rather by letting it be, acknowledging it. If you avoid the feelings then you will probably prolong the process. Unresolved grief can lead to depression, anxiety, substance abuse and health problems or all of these. The best advice is:
Face your feelings
Express your feelings – take support wherever you find it.
Look after your health – exercise and diet
Don’t let anyone tell you how to feel
Plan ahead for “triggers”.
“Triggers” may be birthdays, anniversaries, family occasions. You cannot plan for the things that will suddenly overcome you , like a smell, a forgotten photo in a book, etc. It is normal even after much recovery for significant dates, holidays or other reminders to trigger feelings related to the loss. Remember there is an upside to all this, by experiencing deep emotion and accepting it, you will grow in warmth, depth, understanding and wisdom.
What will we tell the children?
Over the years I have noticed that a significant number of parents resist strongly any attempt to discuss the children with me or indeed with anyone else. Any discussion is vigorously blocked. For parents, I suspect that one of the most upsetting things about separation/divorce is the fear that children will be so fundamentally damaged that they will fail to nurture their talents or that their innocence will be compromised or taken away, their memories of childhood will be tarnished, they will become dysfunctional members of society or they will form unhealthy adult relationships. Over the years, I have found that this fear for many parents is so overwhelming they cannot even bring themselves to articulate it and so they block it out by refusing the discussion altogether. Is it inevitable that children will be damaged by separation and divorce? The good news is that it is not inevitable. Of course, children will have a problem with the separation of their parents and they will suffer. However, long term suffering and damage is something different altogether. All the latest research would say that children can come through separation and divorce in good mental and physical shape provided they are not caught up in or witnesses to a prolonged, bruising confrontation between the parents.
From the time that the decision is made to separate, the focus should be on childcare and management. Traditionally, we lawyers have tended to take the view that really the only issues that concern us are finances and property. Indeed, when I was doing my training, we were encouraged to think that way. We were told categorically that we were not counsellors and that we should only advise on the law and furthermore, that we should stay objective, professional and detached at all times. This is the way I was trained and I have questioned it for years. If we let in the emotions we might get swamped by them compromising not only our detachment but also our own health. It is true, that can and does happen but the answer is not to lose our ability to connect with the whole person, the answer is to train us in techniques that allow us to manage those emotions and to screen ourselves. Professionalism, objectivity and detachment are fine qualities in their place but not at the expense of humanity, emotional intelligence and common decency. Good family Lawyers should be able to balance all of the above. As I have said in many different articles, people come to us with emotional issues, financial issues, property issues, child issues and so on. In the midst of their trauma, we cannot expect them to compartmentalise themselves when they are speaking with us. At the very least, we need to recognize that our clients will be adjusting to relationship changes on many different levels, changes in the primary relationship between the couple, changes in extended family relationships, changes between parent and child and changes in the parenting relationship itself, social and work relationship changes, changed self perception as well as financial and property changes. Indeed, the financial and property changes may well be the easiest of the bunch. As lawyers, we cannot ignore any of the changes and serve our clients well. Since we are the first port of call for many families in trouble, at the very least we need to be up to date with professional and voluntary services in our area. However, handing out a list does not, in my view, fulfil this obligation to our clients. I am of the view that it behoves us to be able to stand over the names we give out to people and not just their qualifications. I always ask my clients for feedback on counsellors and therapists that I have referred them to or with whom they have attended without my knowledge. I am always on the lookout for new names, new skills and new services. I meet with and speak to everyone on my list. However, even that, in my view, is not enough. We, as lawyers, also need to be able to offer clients practical advice and information on all the things that concern them including their children. To do so, we need to be sensitive to the issues that clients are likely to encounter on their separation journey.
It is remarkable that while the vast majority of our family law clients will prioritise the health and well being of their children as their chief concern and primary focus, we lawyers will frequently ignore issues surrounding the children that we know exists, simply because the parents assure us that the children are not manifesting any “problems”. Just because a child is not misbehaving in school or their school work is not deteriorating, does not mean that there are no problems. Since we know that children will suffer to some degree when their parents separate then running away from that fact will not benefit anyone.
At the point of separation, clients are dealing with so much personal fallout that they may simply not want to take on board their children’s suffering as well. They are overcome and vulnerable. As lawyers, we need to offer reassurance and guidance and that means treating the client as a whole person, seeing the family relationships in context, being up to date with the latest research, having a basic grasp of the stages of separation and divorce ourselves and having a grasp of child issues in separation and divorce not to mention the ever handy list of referrals.
There are many issues that are likely to arise but one of them is “Should we speak to the children and if so when is the right time? Who should speak with them and what should they say?” This is one that comes up all the time. Even if a parent does not raise this issue, we know it exists and we know that it needs to be handled with sensitivity and so we should raise it even if the client does not. Many fine articles are written on this subject but we can certainly offer some guidelines. For example, where possible, both parents should speak to the children together having decided what they will say before hand, keeping it brief, child friendly and with no blame. Reassuring the children that the separation has nothing to do with them and that they cannot fix it is also extremely important as the research would indicate that frequently children will blame themselves for the marital or relationship breakdown. It is very important for both parents to reassure the children of their love for them and to distinguish for them the different kinds of love that exist and that the love of a parent for a child does not cease and will not cease. The children should be reassured that both of you will continue as parents and that they will continue to be loved by and to love both of you. Research shows that the self esteem of the children is bound up with their relationship with each of the parents. While emphasising them things that will continue for the children such as their relationship with extended family and friends, it is important to inform them of what will change. Where they will be living and with whom is very important information for them to have and they should not be asked to make any decisions in this regard. These are parental decisions and all the research shows that children do not want to be asked to decide these things. It is too much of a burden to place on them. Listening to them and being emotionally available to them is not the same thing as asking them to make decisions. Children need to be given all the details on where the moving parent will reside including contact details and reassurance that they can get in touch as often as they need to or if not, when they can get in touch. Sometimes it is not possible for a parent for work reasons to be available all the time to their children but setting aside a slot could be very reassuring to a child in this situation. A good parenting plan is very important for the children. Children like routines and they like to know what is happening and when. Research shows that a well thought out schedule placed where children can see whenever they need to, works best for them. Sometimes a parent will be moving away or will choose to minimize future ongoing involvement with the children. Difficult as this is, it is important to be honest with the children without being brutal and again without blaming. Finally the school needs to be informed without breaching the children’s need for privacy, about the situation so that they can keep an eye on the children. They also need to be given up to date addresses and contact numbers as well as being informed about collection and delivery from school.
Lawyers should be able to talk through these issues with their clients and offer some practical assistance and guidance as well as being able to refer problems outside their competency to good professionals who can assist. They should also be able to direct clients to articles books and research on parenting post separation. I know that many people, lawyers included, will see this as outside of the remit of lawyers. Recently I suggested to a colleague of mine also a family law specialist that we should advice on how to handle this conversation and she responded that “We are not therapists”. That is correct but we are family law specialists and if we are to call ourselves that then we have to offer more than just a bread and butter service – silver service at least!!
All I want for Christmas
More than any other time of the year, Christmas tends to pose the greatest challenge for separated and divorced parents. The biggest issue is generally – where will the children spend Christmas, followed by – who has them on Christmas eve, followed by – how will we divide up present buying and santa given that we are hardly speaking or not speaking at all, followed by – who has them for New Years. All of these issues can be minefields in the hands of warring parents. Over the years I have presided over many a Christmas access battle, the odd festive kidnapping and one memorable Christmas, my brother was on one phone to a Father for several hours on Christmas day and I was on another line to the Mother as they commenced their domestic journey toward separation– that must have been a fun Christmas for the children! I remember my own Mother being absolutely furious at the interruptions as the calls went on and on throughout the day.
For many of us, Christmas brings us back into our own childhoods, to a more innocent time perhaps and a time of anticipation mixed with comfort and security. We tell ourselves that we want to recreate that for our children and, of course, that may be true but buried underneath all that may be our own need to feel those feelings again. Apart from our own feelings, there is the potent commercial sell of Christmas. Those of us who do not have children may feel inadequate and incomplete during this season as well as those of us who are unmarried, homeless, old, widowed etc. So it is as well to understand that we are not alone. When we combine those potent feelings with a power struggle and the loss of focus that the emotional flooding of divorce or separation brings on, it is not too surprising that Christmas can become a major battleground each year. So what can we do to prevent this happening?
The first thing is to have a plan for Christmas. Don’t leave things to chance and don’t assume anything. Make sure that you have discussed things and you have a clear strategy for the Christmas period. The first thing to remember when you make your plan is that Christmas is about the children and not the adults. Therefore, the focus is not about my rights or your rights but about how we make this Christmas a good one for the children and not just this Christmas but every Christmas. For the children of separated parents, this is a difficult time as well. Since we are the adults, it is our job to make it easier on them and not the other way around. The every second Christmas routine may work well for parents but it is unlikely to find favour with the children. Children are creatures of habit and they like things to be exactly as they would expect them to be each Christmas with a little room for originality but not much. Therefore, as parents, we may have to accept that divvying up Christmas day on a turn and turn about basis may feel “fair” to us adults but may not be at all fair to the children. We need to look at these things with a fresh mind.
So maybe you won’t get to spend Christmas with your children. Realise in good time that this will be very hard and rise to the challenge. Unless you absolutely cherish being alone, plan not to be alone. One suggestion I came across was getting a few people together in the same situation as yourself and organising a dinner party. Sad as that is, it is not the end of the world, provided you do not sit at home moping all day. If you sit at home all day getting upset and morose, your children are just going to feel really bad and so are you. However, if they think you are ok, then they will be ok. Remember that your children will find Christmas without a parent challenging as well. Try and ensure that each parent allows them the time to reflect on this by talking openly about it. If you are the designated house for Christmas then include the absent parent by plotting with the children on a suitable present and taking care and time to wrap that and ensuring phone calls are made on the day. For the absent parent, why not make Christmas Eve the important day in your house if you can’t have Christmas Day? After all there are many countries where it is far more important than Christmas Day in any event. The children will be delighted to have a celebration wherever and whenever that celebration occurs and to build traditions around that. And if you don’t want to turn up like a lost soul at your family of origin, though I would say they would be delighted, then volunteer to do something on Christmas Day or make a plan for it – for example, take part in the Christmas swim and the conviviality around that and spend the rest of the day basking in your accomplishment and recovering. Whatever it is , the key is to have a plan.
It is important that while children enjoy and celebrate Christmas that parenting quality does not diminish to the extent that outrageous sums of money are spent and there is unnecessary doubling up on gifts. Where possible, as I have said before, parent on the “what if” basis ie what if we had not separated? If you and your ex had not separated , you would watch your spending and you would each contribute to the costs. Try, where possible, and do the same when separated. Sharing gift ideas and information about what each of you have planned for Christmas is both prudent and mature.
Some separated parents will manage to get together for a family meal on Christmas Day and that is truly wonderful if it can happen and happen with good grace. Obviously, it is not wonderful if it is an excuse for sniping and bickering or for other family members to have a go at the ex. Other people will divide up the day. Whether or not that is a good idea depends on how it impacts on the children. Whatever solution you and your fellow parent consider, has to be one that the children will benefit from and that is not primarily designed to make both of your feel that you have got your due. For many children, leaving their nice warm house and new toys to go off somewhere with the visiting parent on Christmas Day is not welcome. Rather than dragging them out, perhaps a fresh think might be required. Look at the holidays as they occur throughout the year and ask each other which parent tends to be more involved with the children on that particular holiday. For example, some Dads get very invested in Halloween and love the whole celebration whereas Mum may see it as an inconvenience or vice versa. Some Mums are totally devoted to Christmas and have been collecting Christmas decorations and memorabilia for years, whereas Dad can take it or leave it and even at the best of times was a 4 o’clock shopper on Christmas Eve. Some people adore New Years and others try and sleep it away. Looking at all these holidays in an honest way can quite often help us to divvy them up more realistically, ensuring maximum enjoyment for the children.
Sometimes you won’t be able to agree on how to divide the holidays and when that happens, you just have to designate. Decide which parent will have that holiday. Don’t just split them up or do a turn and turn about, because that seems like the best compromise. Be creative and look at the bigger picture. Designating specific holidays to each of you allows for you to build up happy traditions in each of your homes. Many parents will suffer from extra guilt because they will feel that their failure has brought this extra suffering on their children. Guilt is such a waste of time and serves no one. When you are happy, your child will be happy.
Cost of Living
An impending sense of doom lies over us here like a pall as we await the budget. When we went into this recession, we were reasonably confident that we would be out of it by now or thought we would, now we are getting the truly uncomfortable sense that we are in this for the long haul. I have essentially stopped listening to the radio or reading the daily newspapers since I have to simply keep going no matter what. This is very hard for me since my favourite medium is the radio and I would have listened to radio constantly. Sitting with the Newspapers on Saturday and Sunday one of life’s great pleasure, alas now gone. Where is the point in suffering from a mixture of outrage at our politicians, bankers and developers combined with despair at our future and that of our children? Where can I go with the rage, who can I beat up and what will be the point? Everyone that we trusted was on the take or the make in some form or another. Short of a whole new set of people emerging to inject some hope into the future, people of proven standards and integrity, I just drown in a wave of despondency. That we have been ripped off on a wholesale basis I have no doubt and it continues and that there is corruption at every level seems to me to be just a fact but what exactly can I do about it? If I thought my rage and despair would do some good, I would engage actively. So instead of feeling overwhelmed , I choose to exercise optimism and hope in my own personal life. This is a very conscious decision. I use those skills I have written about in my blog to try and maintain an even keel emotionally (I don’t always succeed) and screen out the information that does me no good whatsoever. I am not running away from reality, simply choosing my own reality in so far as that is possible. Of course, I, like everyone else, have to be careful with my finances now and running the business is a white knuckle ride at times. My pension is gone belly up, any investments I have are at rock bottom and I might as well have been flinging the money under the bed. I couldn’t give away my house as nothing is selling and I have resigned myself to the fact that I will probably work till I drop and that is assuming that I can work as the insurance hikes are making it increasingly difficult. I do not mention this because I think that I am suffering more than others, far from it, I know that on the scale of things I am doing ok. I am working, I have a place to live and so far I can pay the bills, just about!
There are a lot of people out there worried about day to day finances and coping with unhappy marriages and relationships at the same time. Certainly, where there is already strain, a poor financial situation can completely unbalance things. There is no doubt that legal costs are a big issue if you are separating. Lawyers in common with everyone else have reduced their costs but going to court is still a very expensive option for any family in these straightened times. The Legal Aid Service is there to help out. It is worth noting that the Legal Aid Service will charge a fee for their service should you get money in your settlement or court order. Many people are not aware of this. Quite often the fees charged by the Legal Aid do not differ a whole lot from that charged by many private solicitors. Most family lawyers charge a first consultation fee particularly in the cities. This is because a first consultation can be very time consuming and difficult both for the professional and the client. Clients very often have little or no idea what to expect and it can take some time to focus and gather oneself. Quite often people are too upset to convey information easily at this meeting or are in great need of reassurance. All of which takes time and skill. Because many people come to lawyers for advise when they are not sure what they are doing or may want to do, many will not necessarily come back having taken a great deal of time and so we find that we have to charge for first consultations. In Cork the majority of family law specialists will charge between €150 and €250 plus vat for that consultation which can often last up to two hours.
Settling your affairs with your spouse/partner is by far and away the most cost effective and logical way to resolve a family dispute. Whether you settle by way of agreement conducted between firms of solicitors, private mediation, collaborative family law or in the courthouse, it is still less expensive financially and emotionally than having a full hearing in front of a judge. The least expensive option is a mediated settlement followed by agreement conducted between firms of solicitors and collaborative family law which on average are pretty much on a par financially though not in any other respect followed by settlement in the courthouse and last and most expensive full hearing. A full blown hearing in the Circuit Court can cost anywhere between €8K and €20K plus VAT plus outlays and any other expenses involved such as valuers, accountants etc. Some cases are more time consuming than others, they involve more correspondence, more phone calls, more consultations, briefs to various experts, interim trips to court leading up to the full hearing which all mounts up costs wise. Again remember that from a lawyer’s perspective, time is money and solicitors are looking at your case from a costs point of view in terms of billable hours. Court cases take a long time to gestate and come to term. This impacts on costs and can be very wearying for the person on the other end. Solicitors start to speak an incomprehensible language about drafting documents, briefing counsel, issuing proceedings, service of proceedings, filing, expediting, Motions, Discovery, Affidavits, Registrar’s courts, rules of court, precedents, settlement talks and hearings. None of this makes any sense to you and on top of that it is all taking an unending amount of time to come to a conclusion. You just want it finished and you don’t want to hear all this mumbo jumbo!! Then after what seems to you like an absolute hellish eternity, they slap you with a large bill for doing stuff most of which you did not understand in the first place and have no idea why it was necessary in any event. Welcome to the world of the adversarial court system! By contrast the world of Alternative Dispute Resolution (ADR) works to your pace, is at pains to speak a language you understand, makes itself as user friendly as possible and all the work being done is conducted in your presence or with your knowledge and you know exactly what you are paying for and how much you will be paying.
Negotiated settlements between solicitors leading to either a Separation Agreement or a court ruling by consent, while less expensive than a full blown hearing and preferable to going to court, are still expensive ,especially, emotionally expensive. The type of negotiation involved in solicitor’s negotiation is distributive bargaining. I wrote about this in my last blog and website posting. It involves looking for the biggest slice of the pie for one’s client and since there is only one pie one person has to take less than the other. This type of bargaining also looks at the pie in a very one dimensional way. It does not ask questions to determine the parties’ real needs so as to see how value might be created. Also distributive bargaining frequently uses gamesmanship, bullying, hiding information and other such tactics to succeed. All of which can leave a bitter taste in the mouth. The correspondence between the solicitors leading up to the court case is often a classic example of this where each party sets out their stall in an attempt to undermine or diminish the other’s confidence or simply to bully them into submission. Accordingly, by the time you arrive at a settlement a lot of unnecessary damage has been done. A Separation Agreement conducted through solicitors negotiating in the traditional way can cost anywhere between €3,500 plus vat and €8,000 plus vat again depending on the amount of correspondence, telephone calls and consultations involved with the client, settlement meetings (if any) and drafts and redrafts of the agreement. A privately mediated agreement will cost around €2000 plus vat per head on average depending on whether you opt for co-mediation, which is what I like to practice, or the more traditional one mediator model which would be somewhat less. A collaborative family law case depending on whether it is full team or just lawyers and clients, will average between €6K and €12K per head. For that you get a tailored custom made solution with a range of experts at your disposal which takes account of the family needs and not just individual members and which is future focussed and not just dealing in the now.
When looking at legal costs it is also worth noting that solicitors do not conduct their work over a few days, it can take months and sometimes years to bring cases to a conclusion. People ask us all the time why our costs are so high and the answer is very straightforward, our overheads are huge. At the moment I am paying professional indemnity insurance and an annual practising certificate fee of around 25% of my turnover. In addition, I pay all the usual business expenses, rent for my office, accountancy fees, office equipment and running costs, business loan and one administrative staff member, public liability etc.
Many solicitors will look for money on account before taking on a court case and that is not at all unusual. That money is offset against your fees at the end of your case and is not additional to the fee charged overall. It is used for office running costs in respect of bills being run up managing your case and while your case is ongoing but also to ensure payment of people retained on your behalf ie, auctioneers, doctors reports, psychologists, accountants, barristers etc. A solicitor retains these people to act on your behalf and is, therefore, liable for their fees. If, however, there is some very good reason why you cannot place any monies on account and you can give reasonable assurance of payment at the outcome of the case, most solicitors will consider your position. Another option which is finding favour now is payment as you go. I tend to favour this as do my clients. It does involve a bit more office administration but it is worth it to keep the clients happy. Generally, clients pay me every 3 or so months bringing themselves up to date so as to avoid having to put a larger sum of money on account and also having a big bill at the end of the case. Talk to your lawyer about costs, be up front and you may be surprised and how well you are understood and what he or she will be prepared to do for you. If your lawyer does not discuss costs with you or fobs you off whenever the subject is raised with platitudes, then alarm bells should go off.
I think many of us are living in some kind of suspension waiting for this to end but we shouldn’t put our lives on hold. Who knows how things will turn out. We need to move on with our lives.
Magic of Negotiation
When I was a small child aged between 6 and 12, my favourite word was “negotiation”. I loved that word with a passion. It was not the meaning that enthralled me, rather the sound. I thrilled to the way you could break it down and roll it around in your mouth. Occasionally, I would lose it briefly and would ask my Father to remind me again of my favourite word. Like the great dad he was and is, he would remember that for me and give it back to me immediately, whereupon I would savour it and hug it to me like a person recovering buried treasure. Sometimes, I would ask the meaning of the word but I would quickly forget the meaning. In time, I also lost the word’s special magic for me. Is it not mysterious then that I should have become a solicitor and even more than that a collaborative lawyer and mediator?
Now the magic is in the meaning of the word and what it signifies. Whenever we hear the word “negotiation” in the context of a war zone or a crisis, we breathe a sigh of relief. Time has been bought, we are back from the brink and the hope of peace beckons. Yet, when we consider marital breakdown, so many of us think only in terms of court, rather than negotiation. We need to reflect on that. Our lives would be unimaginable without negotiation. It informs our every day and all our relationships, business, politics, state and world affairs. There is no part of life on this planet which is not affected by negotiation. It is, therefore, extremely important that we understand the true meaning of this word, various styles of negotiations as well as the many forms it takes.
Negotiation is a dialogue intended to resolve disputes, a bargaining tool to gain advantage, a mechanism to produce an agreement, a blueprint for action or a process to craft outcomes. It can be all of the above or just some of the above. When we think about negotiation most of us think in terms of two opposite sides jockeying for advantage. As a lawyer, I would generally think of negotiation in terms of one side looking for a bigger slice of the pie over the other i.e., hard line bargaining. We refer to that as distributive or adversarial bargaining and it is generally the way that solicitors and barristers negotiate. Like everything, it has its place and is a very useful tool at times but that is all it is, a tool. Like most tools, it is ill suited to certain circumstances, people and situations. Many of us understand negotiation only in terms of distributive bargaining and are not aware of any other method of negotiation. There are many different ways and styles of negotiation. Another approach to that of distributive bargaining with which we are probably familiar, might be to hammer out an arrangement in the best interests of the parties i.e. take a more holistic approach and look on agreements from the point of view of creating optimum gain rather than maximum gain.
In many countries ordinary people are master negotiators though they may have little theory informing their practice. Generally, they are masters of distributive bargaining. I am thinking, for example, of many Arabic , Indian and Asian cultures where bargaining is a way of life. We are all pretty familiar with this way of bargaining and most of us tend to try and conduct our relationships in a distributive bargaining way. We may employ various strategies to that end but essentially we are jockeying for advantage either in our employment or at home. Distributive or adversarial bargaining is generally ill-suited as a resolution tool for personal relationships. Perhaps it is more than time that we import a more creative theory of negotiation into our everyday lives especially when dealing with relationships. How might we do this?
We might start by looking at problems as opportunities i.e., opportunities to create. We might, accordingly, agree to only accept creative outcomes for any problem, situation, circumstance or crisis. To do that we must exercise understanding. We must spend time understanding the nature of the problem in all its myriad detail and we must take time to understand ourselves as we approach this problem. What emotional baggage are we bringing to this, how is our personality informing this situation? Emotion enters into the negotiation process in a number of ways. For example, whether or not we like the person with whom we are in dialogue, what baggage we are bringing into the discussion on a particular day, for example, a stressful family or business interaction prior to the negotiation will affect the way we conduct the negotiation. Unintentional emotional triggers arising during the negotiation will also impact severely on us and unless we have a degree of self awareness such triggers will adversely affect the discussions and we will be none the wiser as to what exactly happened. Being sensitive to our own emotional baggage is very important but being sensitive to that of the other person/s is also vital. If we are paying close attention we can pick that up as we go along and doing some research prior to the negotiation may also help us to be aware of issues that might arise. Understanding the other person means a great deal of listening, clarificatory questions and feedback. Our own negative emotions can cloud our ability to hear and to be creative as well as colouring our attitude to outcomes. Positive emotions can make us confident and insightful creating more likelihood of positive outcomes. Knowing all this, could we possibly conduct negotiations ourselves for ourselves? I believe we can and some do. Some of us have a natural ability in this area but it is important for all of us to understand that with awareness and understanding all of us can learn how to do this. We need to learn how to do it and in small ways, we can practice it easily and occasionally bring it off by, for example, using relationship issues such as “who does the cooking” as an opportunity for practising such techniques. However, when it comes to major issues like separation or marital breakdown, our emotional baggage may not be so easily overcome so as to enable us to dialogue effectively. We might at that point seek the help of a mediator or a collaborative lawyer to assist us in doing this work.
When we negotiate with someone close to us, it is helpful to think carefully about the person we are negotiating with and not just concentrate on the issues to be discussed. What I am about to say is not the rambling of a tree hugger but rather a very carefully thought out way of helping us to get into the right frame of mind to negotiate. In order to enable us to be open to that person we might focus on gestures or actions that we can look back on in our relationship with that person for which we are thankful. In that mood of thankfulness we might then reflect on our overall goal in the coming negotiation. Without the capacity to extend gestures to the other and without the capacity to appreciate gestures from them, successful negotiation, particularly when it concerns relationship issues, will be well nigh impossible. When we reflect on our overall goal we can then think about how we are going to approach matters or another way of putting this would be that we can strategise. In the mindset of thankfulness and bearing in mind the overall goal, we can look at the issues from the perspective of trade off and/or creating value. We walk a mile in the other person’s shoes and we ask ourselves what will they value, what is important to them and this enables us explore the various options available to us. Then we need to reflect on what is important to us. Only then are we ready to commence the negotiation. Remember that in this context we may call the negotiation, a conversation, such as “I have to talk to John about that” knowing full well that John will be running a mile from that conversation, however, it is, in fact, still a negotiation. If you can combine the above with a nice musing tone, and you need to practice this, plenty of questions and genuine openness, you are on a winner. It is not as easy as it sounds but it is not impossible either and the essentials are the same in any negotiation. Getting into the right frame of mind is three quarters of the way. If we commence negotiations from places of fear and anger then we have no hope of achieving solutions.
The advantage of mediators and collaborators is that they can do all of the above so much more easily because they have no personal stake in the outcome. It is the personal stuff that makes it hard and that is why few of us can manage negotiation for ourselves. Essentially, however, what I have described above is the process of mediation or negotiation and it is also the bones of a collaborative negotiation which is what collaborative family law is all about. When people think about the word “negotiation” they think of something which is almost magical. Secluded armed gun men are talked out into the open and contained by the process of negotiation. Suicides are talked down from the brink, hostages are released, centuries of intransigence are overcome. No wonder I was delighted by that word as a small girl. Did I sense the power of negotiation? Who knows but I know that I also wanted to be a magician. There is a connection between the two. Now I am working with the magic myself.
As time moves on ..
In the early 1990s, which heralded in the modern approach to family law in Ireland, it was commonplace for a wife to be allowed to remain in the family home, particularly while the children were young and for the property then to be sold at some point in the future. Many spouses reluctant to even contemplate moving from the family home in the face of so much upheaval, mental and physical, would seize on this option with both hands. I loathed those orders because I felt that they simply postponed the evil day. Would your average wife in her mid to late 30s raising a young family be any happier selling the house in 10 years time? Would she feel any less short changed or deprived? I doubted she would and for my money she might feel even more so that having raised her family, she was now faced with the extremely stressful scenario of moving house and very possibly location. By contrast her husband would have long since moved on and will view the impending sale as a windfall. I also felt such orders kept the wife imprisoned within the confines of the marriage, psychologically and sometimes in fact physically, with none of the advantages of the marriage. I had the same view of spousal support. Many women separating would not look for work or go to work because it would mean that they would lose the option of spousal support. Long term the person most damaged by this was the seemingly supported wife. She remained a dependent of the marriage and effectively tied to her husband but enjoyed none of the advantages of marriage. Her situation was economically precarious for if her husband decided to have a second family then the children of that relationship would almost certainly take priority over her. More fundamentally however, she never in fact, mentally, left the marriage.
Another common enough feature of those days was getting the house transferred into the wife’s sole name. This would give rise to a lot of bitterness unless there was a significant asset base. Eventually, however, with time, experience and some policy decisions (precedents) on these matters, it became extremely rare for the house to be taken off one spouse and given to another unless by agreement or in exchange for being bought out. For a woman to buy out a man she generally had to be able to get a loan and this in turn meant that women had to work outside the home in the majority of such cases.
Children generally resided with Mum and saw Dad periodically. It was very rare for Dads to get sole custody and access was parcelled out like hen’s teeth. Joint custody was rare. Most women fought like tigers to get sole custody of their children and the idea of shared parenting post separation was very uncommon . If you suggested to a woman that it was more in her long term interests and those of her children to concede equal parenting time and responsibility to the Dad she would have thought you were working against her interests. Everything was approached on the basis of sides. That is essentially what the adversarial system is all about. As we moved into the boom, it became commonplace for the family home to be sold. This was for a number of reasons, women were working and so could get mortgages in their own right, it was perceived as unfair that a man who may have been the principal earner in a marriage would walk away with nothing to start again. Increasingly, it was regarded as important that the children would see their Fathers living in reasonable surroundings. As more and more Fathers sought overnight access, it was clear that they would have to have a reasonable standard of accommodation. Now, in the middle or height of a recession (who knows?) property is not selling and what does sell sometimes will not clear the mortgage or will clear it but not leave enough to buy on. The impact of this on the orders being made is only being assessed and its long term effects are unknown.
Maybe we now have to go back to the unfortunate agreement or order to sell at a future date. However, we may do so but for entirely new reason. Indeed, more and more of the settlements I am entering into these days have that ingredient but unlike the 90s, sometimes, it is now the husband who is remaining in the family home and the wife moving on. Economic changes in the employment prospects for women during the boom have effectively given many women a wider range of options. Now more women are moving out of the home than ever before. This is particularly the case if the children are largely grown. As a result, the option to sell at some future date is made largely in the hopes of a property market rally than because of a fear of moving on after the marriage. Such decisions can be viewed by the couple as making economic sense and tend to be accepted with good grace by both parties.
Spousal support, in my experience, is largely a thing of the past except in some limited circumstances and while Judges don’t normally articulate that a woman should look for a job, their judgements make it a reality. Recently, I have started to settle cases on the basis of a built in period of support post separation to enable a wife who wishes to work but has not been doing so for a while to get back into the market without any undue economic hardship. This period could also allow a spouse to retrain or engage in a long deferred educational pursuit. Such periods could be for one year or several but they are of their nature of a limited duration. It is my experience that a husband in such circumstances will not resent the payment in anything like the same degree as an open ended payment. When considering such settlements it is important to take into account that spousal support is taxable in the hands of the spouse whereas the person paying gets relief on the payment. It is often built into such agreements that the paying spouse will not seek to reduce the spousal support during this period on the basis of the other spouse’s earnings alone. This enables a dependent or semi-dependent spouse to get on his/her feet without incurring a penalty and further acts as an incentive to earn. Frequently, we look on the 4 year qualification period between separation and divorce as onerous and unnecessary, however, we could look at that period as a hiatus period enabling us to plan effectively for the divorce. I know that is not what the legislators intended and it was meant as a deterrent to leaving our marriages rather than a planning period to exit more efficiently.
As courts get used to dealing with marital breakdown and as it becomes a reality that everyone knows someone who has a divorce or separation, then the way we manage these cases as a nation changes. Our increasing mobility as a nation affects this situation also. The option is now there for many people to get a divorce in another jurisdiction where the rules or practice might suit their purposes a little better. This is something we need to keep constantly in mind when dealing with such matters. Since Separation and Divorce were legalised the face of Ireland has changed and we are no longer the wall to wall Caucasian nation we once were and this has impacted on our cultural attitudes which in turn affects our approach to such matters.
Child support is, of course, another matter entirely. Both spouses are expected to contribute to the best of their ability for the support and upkeep of their children. Such contributions are generally estimated in line with a person’s earnings. The more you earn, the more you will be expected to contribute. Child support is not taxable in the hands of the person receiving it. Equally it is not tax deductable in the hands of the person paying. Unlike the concept of spousal support which has connotations of “foreverness” and can, accordingly, bring on a panic attack, child support has a identifiable time frame which continues up to 23 if the child is in full time education or after they complete secondary and start to work. Most parents do not resent contributing to their children’s upbringing but it is still amazing the number who have visions of their spouse having a whale of a time on the child support! Whether this is just paranoia or simply a lack of understanding as to how wonderful children are at spending all your money, I don’t know.
Joint custody is now the norm in family law cases. This does not mean that the children’s time is divided in two and each parent is given precisely half. Children have to go to school, see their friends, play matches, engage in activities, do homework, spend time with grandparents and so forth and in short be allowed to have a life. Cooperating parents can generally manage to ensure that they see both parents and still get to do those things and it obviously helps that the parents live reasonably close to one another to enable such cooperation. However, parents who live in different counties or at good distances from one another will not be able to manage these things so easily but again with open mindedness problems can be solved. We now know that it is damaging to children and their development if they do not have a proper and healthy relationship with both parents post separation or divorce. Courts have completely absorbed this message and with very few exceptions will award joint custody and give as much access as possible and practical to the non residential parent. It is still a balancing act though between the children’s needs and the parental circumstances. Judges have a limited time to go into this in any depth. Judges don’t know your children and will not meet them. It makes absolutely no sense to place such matters in the hands of a Judge and no one would be quicker to acknowledge this than an experienced family law Judge. A properly worked out parenting plan can save acres of heartache and frustration later for both you and your children. It is a fact that children love to know what is happening from week to week and will work well with carefully planned access schedules.
In the early 90s if there were child issues it was the norm to have the children assessed by a child psychologist who would then report to the court and make recommendations. While this still happens, we are less inclined to rush into this now as a “cure all”. We have learned in the intervening years how invasive such examinations can be for many children and we move at a much slower pace into this arena. Children don’t want to be asked their views on where they should live or how often they want to see the other parent. It is unfair and unreasonable to ask children to comment on such matters. Children invariably love both parents. Of course children do have views and concerns and these should be listened to but they should not be asked to make decisions that are outside their competency as children. In the past, it was commonplace for children to be asked such questions and for those views to be passed to the Judge who was, naturally influenced by them not to mention the unspeakable agony caused to the parent who had to read and listen to those views expressed in this manner. The practice was nothing short of barbaric and one can only imagine how such children must have suffered when and if they realised how their views had been reported and the effect that they had. There are still situations where the intervention of a child psychologist is required and in fairness most child psychologists have also got stronger in their approach to the courts now and will not allow themselves to be manipulated into the old style reports quite so easily. As time moves on we all gain experience and insight, professionals and public alike. Now we are aware that an experienced mediator will help us in most cases to deal with all but the most intractable of parenting plans and issues.
Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010
Even the title of this Act is cumbersome and ill-conceived! I am trying to work out where I stand on this piece of legislation. I have no issues whatsoever with the sentiments behind this Act, on the contrary, looked at from one perspective it does not go far enough and frankly, even within its own terms it is not carefully thought through and will give rise to unnecessary litigation. This piece of legislation is well motivated and that makes it difficult to take a stand against it. I am essentially a liberal myself and, therefore, one of those well motivated people or just another namby pamby if you are at the other end of the spectrum. Essentially, though, I think that this legislation is misguided. Why should gay couples have separate legislation and separate arrangements? Why not treat them the same as all other couples? It is my view that same sex couples should be permitted to marry if they wish. It is ludicrous to suggest that society would be damaged by this, what on earth could be damaging about committed love relationships whatever their origin? And after careful consideration, I think opposite sex co-habiting unmarried couples should only start to have financial responsibilities to each other when they have children. I know there are arguments about people being together for 30 years and all of that but people have to be allowed some areas of personal freedom and responsibility. It is going to come as a shock to quite a few people when they discover that there are potential legal implications of a serious nature attaching to their cohabiting relationships and especially that potential obligations kick in quite quickly in the scheme of things. I am fairly sure that the vast majority of opposite sex co-habiting couples likely to be affected by this legislation have little or no notion of its impact. Correspondingly, I would imagine most gay couples are well schooled in the provisions of the act in so far as it affects them through their various organisations and because to some extent many gay people have been campaigning around these issues for many years now. I know of no campaign to regularise the affairs of unmarried cohabiting couples. It is unlikely that co-habiting couples being a disparate group will receive organisational information. The fact that the legislation allows for an “opt out” clause is probably going to escape the attention of many until it is too late.
I wrote previously about this piece of legislation when it was still a bill and that article is still accessible on my older posts. I made some criticism of provisions in the bill at that stage or lack of them. In particular, I criticised the fact that children residing with same sex couples for whatever reason were not protected by the legislation. This is a glaring omission and one which, in my opinion, is calculated to give rise to great hardship for those who are most vulnerable in our communities.
It was argued during the passage of this bill into legislation that the two parts of this act, namely, that part dealing with same sex relationships and that part dealing with opposite sex relationships, should be separated and treated under separate pieces of legislation. I agree with that submission. Regrettably, it was not picked up. Because gay and lesbian partnerships and opposite sex co-habiting couples were dealt with in the same piece of legislation, no proper thought or debate was given to the separate problems that each circumstance essentially presents. After all, opposite sex couples can marry if they wish and with divorce available, there is little reason of a compelling nature as to why they should do so if they are so minded. If they are not so minded, why are we forcing obligations on them, that the nature of their relationship suggests they do not want. Why don’t we have an “opt in” clause rather than an “opt out” clause for cohabiting opposite sex couples who want to have rights against each other in certain circumstances. Gay and lesbian couples are in a different situation as they cannot marry under current regulations and accordingly, the lack of rights accruing in their particular relationships can give rise to injustices of a severe nature.
From a gay and lesbian perspective, the Act creates a new legal relationship of civil partnership for same sex couples who choose to register their relationship. That relationship then ends only on the death of a partner or dissolution by a court of the partnership. Once the relationship is created, the Act sets out various provisions that may be availed of by the couple should the need arise. They are discussed in more detail in my previous article and they encompass property, financial provisions and other rights and entitlements consequent on civil partnership to include provision for maintenance, protection of shared homes, inheritance entitlements and pension provisions. Similarly to separation and divorce, the orders that may be made will depend on the circumstances of each particular case and what constitutes “proper provision in all the circumstances of that case. As in divorce legislation, the Act precludes “clean break” settlements. In my view, that is a mistake and I believe that there should be provision for clean break settlements just as I believe that facility should be available in marital breakdown which it currently is not. As well as being silent on the issue of children residing with and dependent on same sex couples, the Act is also silent on the tax and social welfare treatment of such couples.
For cohabiting opposite sex couples, as well as cohabiting same sex couples, who are unmarried or unregistered, the Act will impose certain rights and obligations upon those individuals unless the couple specifically choose to opt out of these protections. Choosing to “opt out” may in the first instance presuppose that such couples are aware of these issues and secondly, it may involve the expense of consulting with a solicitor in order to understand what exactly you are “opting out “of and how you go about doing just that. I personally think “opting in” is a much fairer way of doing things as people who are concerned about these matters tend to find out their situation and will willingly incur the expense to be protected. The provisions enabling the court to make certain redress, and/or provide a safety net for cohabiting couples, in order to protect an economically dependent or vulnerable party are not as extensive as the reliefs currently available to spouses and now to civil partners. They, nonetheless, mark a significant change in the current legal position. The fact that these reliefs are discretionary ie the Judge will decide what is appropriate rather than automatic, may afford some consolation though not much I should think. Those cohabitants who have resided together for 5 years come within the provisions of the Act and two years if they have children. The Act also defines what constitutes cohabitation for the purpose of the Act and recognizes officially, Cohabitant Agreements. This means that co-habiting couples can regulate their own joint financial affairs and they can specifically opt out of the redress scheme if they so wish. Provided both cohabitants have the benefit of independent legal advice then the court will consider such Agreements to be valid and enforceable.
I have come across references in many blogs and articles that many of these provisions enabling people to “opt out” and so forth are “ unromantic”. I have already expressed my reservations about the legislation and my reason but I have little sympathy with the “romance” perspective. There is not much romance either in the divorce court. Just as it is important for couples getting married to try and get a handle on each other’s attitude to children, money, property, family, friends, loyalty, faithfulness and work to name but a few things, so too must all other couples have some understanding of each other or frequently pay a very high price. Such conversations can be used to deepen rather than weaken the relationship if they are properly handled. Collaboration offers such an opportunity as it enables delicate conversations to take place by structuring the choreography of the conversation, ensuring that the conversation takes place face to face even though each party is personally represented at the table and that it is handled by trained collaborative lawyers and mediators.
After a long hard winter weather wise and economically, Summer, especially on sunny days, is a welcome respite. However, Summer brings its own strains. For us lawyers there is the frantic rush of June and July to finalise as many cases as possible before the summer recess. For our clients there is panic about the recess. In June, October seems very far away. The courts are in recess for August and September and resume normal functioning in early October except the District Court which breaks for August but resumes work in September.
Lawyers love this time not because they are on holidays for two months or even one month but because it gives them a much needed opportunity to get their offices and paperwork in order or simply to do some much needed client nurturing. When you are in court enormous amounts of time are spent hanging around. A Solicitor might have one case in the list and spend 4 hours either waiting to get on or in discussions with the other side. It does not always work like that but it quite often does and so office work is at a standstill, other clients are getting frustrated because they want contact and they are not getting it and so forth. Clients are frequently surprised at how much hanging around is done in the courts and the extent to which this forms part of the lawyers working experience. You could possibly bring your laptop and do some separate work? The difficulty with this is that you mostly cannot work outside the court room as generally there is little space for sitting and the seats are occupied with people waiting for court. This means that you would have to leave the vicinity of the court and go to a separate part of the building designated for that purpose. This is always risky. The client who is in court with you may not want you disappearing and leaving them on their own and even if they do not mind, the Judges regularly take the view that when your case is called if you are not outside the door ready to come in, you miss your turn. This means that you miss your place on the list and can go down to the end. Instead of being there for two or three hours or so, you may then be there all day and possibly with an angry client to boot. Sometimes, Judges will strike out cases when the lawyer is not there and this can give rise to the routine humiliation of having to beat breast before the Judge to be reinstated.
People are mystified by the idea that the courts can actually close for such long periods of time but of course they are not completely closed. Emergencies are still dealt with and the higher courts have a designated vacation judge, usually the Judge last appointed draws the short straw, and applications can be made during recess to that person should the need arise. It is worth remembering that some solicitors will take their holidays in August. For that reasons don’t assume that you will have unfettered access to your solicitor during that month. It is a good idea to check in advance. Some practices even close for the month of August but that is rarer these days than in previous times. Again it is a good idea to check. Many Barristers will go away for one of the two months but very few disappear for the full recess period. When I qualified it was the practice for young barristers to use the vacation time to travel and try and earn some money so as to keep going. In the current economic climate this opportunity is probably not there making the lives of newly qualified barristers, who rarely earn much money, quite difficult. Young solicitors work on a salary basis, even if that salary is quite poor, and so can survive the early years of impoverishment with greater ease.
If you are a client waiting for a court date, the court recess is a great time for taking stock. Maybe this is the time to try and negotiate and avoid the trauma of court altogether? And, of course, whether or not the court sits or it does not, collaboration and mediation continue apace and that in and of itself is another reason for considering alternatives to court. Indeed the summer recess is a golden opportunity for your solicitor to negotiate your case, organise collaborative meetings or mediate settlements without the pressure of the court diary.
When a marriage or relationship is in trouble, I don’t think that having more money will do any more for that couple, than simply paper the cracks. If lack of money was the main reason for a relationship breakdown , then we would not get wealthier people separating. And if not having money was the greatest ill to befall a couple, then we would not see marriages of any duration amongst the poorer sections of our communities. How often do we hear older couples reflecting on their marriage saying that they were happiest when they were young and had nothing. Equally we hear that when money troubles come in the window, love flies out the door. And so I take all this talk about recession increasing divorce rates or decreasing divorce rates depending on who is doing the spinning, with a large grain of salt.
There is no doubt that lack of money will place certain strains on any relationship. In our economy it is mainly men who are losing their employment. Loss of employment tends to affect men more fundamentally than women. The result will be heightened stress levels which in turn can have a disastrous effect on sex and intimacy within a relationship. Sex or lack of it is a good barometer of the health of any relationship. People who have a good healthy sex life tend to be nicer to one another and to forgive one another little failings and overlook faults. Without tolerance all relationships come under serious strain.
If the pundits are to be believed, the recession is leading to increase in divorce in the States. It is impossible to draw comparisons between Ireland and elsewhere since the Irish jurisdiction for divorce is only 13 years old, whereas divorce has existed elsewhere in Europe and in the States for a very long time. In those societies, the stresses and strains of a recession may, accordingly, affect societal norms differently than here. The culture of “you made your bed” is still slightly just below the radar but by no means gone, in Ireland. Combined with the fear of dipping a toe in the water in the current economic climate, we are , I believe, but I have not seen any statistics, experiencing a downturn in the numbers of people applying to court for separation or divorce. Those who are separating or divorcing at the moment seem to be those who feel they have no other option either because there is violence or some other serious issue. One can only imagine the misery of many other couples obliged to remain together in very difficult and trying circumstances. Of course, if such couples could co-exist as lodgers in a polite and civilised way then it would not be so bad but for most there is daily conflict and unbearable stress all of which, quite apart from what it does to the couples themselves, has an enormously damaging effect on any children . So is staying together through gritted teeth the only option for such couples?
Alternative Dispute Resolution in the form of collaboration and mediation offers a welcome alternative to couples in these situations. Because they operate without the restrictions of legal precedent, rules of court and so forth, collaboration in particular, and mediation to some extent, has the potential to be future focussed, creative and flexible in ways not open to the courts. Collaboration as it is a process which works with specially trained lawyers amongst other professionals also provides couples separating with the security of a legally binding agreement. When we work collaboratively in West Cork we tend to work in larger interdisciplinary teams, ie with other collaboratively trained professionals from different professional backgrounds. Members of our teams have the benefit of enormous professional experience working with families in crisis from different perspectives combined with their collaborative training and experience and their mediation skills. The professionals who work collaboratively with each couple are drawn from legal, therapeutic, psychological, child and family systems experts as well as financial planners. Couples opting for collaboration do not have to engage all these professionals. It depends on the circumstances. This is something that is worked out between the collaborative lawyers and the couple in each particular case. Whether you are collaborating or not, however, many couples who separate or divorce wind up having to take advice not only from lawyers but frequently also engaging the services of child specialists, accountants, auctioneers, counsellors to name but a few. Think how much more convenient it might be to have the benefit of their collective experience and input all at the same time? That is what collaboration offers. Apart from convenience though, if you consult with such individuals separately, ie outside of collaboration, you will frequently encounter a disjointed approach from different perspectives to your particular circumstances. This becomes even more disjointed and confused if your partner is also consulting with separate professionals at different times and locations. Not only does this multiply the expense but it frequently leads to intense conflict as the professionals battle it out in correspondence to assert their individual points of view. Another aspect of collaborative team, however, which I have written extensively about, is the fact that the sum is greater than its parts. Working together with each couple the team has the capacity to be highly creative and to tailor solutions to each couples particular circumstances. Obviously in a recession a flexible, individually focussed, creative approach, is highly beneficial in finding good solutions for each family. Clearly there are some family circumstances that will not merit the input of the entire team and some that will. In each case we look at the family circumstances and with the couple the collaborative lawyers will endeavour to put together the optimum team to best serve this particular family or couple.
Collaborative teams have the merit of being able to respond to changing economic circumstances as they arise with great speed. Quite often the length of time it takes to get to court can defeat the purpose of going in the first place or the delays can contribute to further losses than would otherwise have been incurred. In Collaboration, a couple does not have to wait for a court date for the necessary action to be taken in their case, the team can respond as required, come together to discuss and brainstorm options and take whatever action needs to be taken in any given situation.
Co-Parenting during separations/divorce
I am frequently asked parenting questions or listen to expressions of frustration from my clients on the difficulties that arise for them in co-parenting during and after a separation or divorce. I am not a child expert but I have picked up a few things here and there over the years. Also, because I am now immersed in alternative dispute resolution methods, I have broadened the horizons of my professional practice both in terms of the people I work with and the way I approach my work. I no longer feel that I need to limit myself exclusively to the law in what I am prepared to comment upon. When people come to me and ask me questions, they are not compartmentalising their questions. They don’t look at me and think, I can’t ask that, it relates to emotions or children and this is a lawyer, they simply want answers and advice. Once upon a time, I struggled to corral my family law clients so that I could just deal with legal matters when they were with me. This is what I had been taught to do in law school and what I thought I should do. Now, I would not welcome this, even if it were possible, which frankly, it is not. Truth to tell, I am far too curious as just a human being not to welcome questions and explorations into all sorts of areas. Regardless of how you separate, that is, whether you pick the traditional route of court or find it picked for you or you opt for collaboration or mediation, you will still experience the parenting challenges that are peculiar to separation and you will still struggle to find ways to deal with them. Parenting at the best of times is tough but parenting through a divorce may be a lot like learning to tap dance in high heels, difficult to say the least, but not impossible.
When you relationship/marriage breaks down you go through a process that is much like what happens to you when someone close to you dies. You are in an emotional melt down and you see saw between various states of anger, depression, sadness and self pity. *1 Within the context in which you find yourself, all that is completely normal and everyone goes through it in some way or another. In the weeks and months following a separation, it is natural to be confused and afraid. These emotions do not always bring out the best in us. However, what complicates it for many people is that in the middle of one of the worst crisis of their lives there is a child/children who are also going through a crisis and cannot be left fend for themselves. Reassure yourself that people have done this before you and have survived and that the children of separated parents frequently go on to become productive and well-adjusted members of society. Resolve that no matter what, your child or children will be in the category.
A very useful guideline for co-parenting post separation is to parent on a “What if” basis. What if we had never separated and we were still parenting under one roof? Road test each parenting situation from that yard stick and you will not go too far wrong. The “What if” test will prevent you from doing such things as spending wild amounts of money on Christmas or Birthday presents knowing the other parent is also purchasing those items. “What if” will prevent you leaping to conclusions when your child reports an incident with the other parent, that other parent has taken complete leave of their senses. Rather you will exercise healthy scepticism that you are getting the full picture. “What if” will prevent you from deciding not to invite the other parent to the school play on the basis that it would be too embarrassing. Not every test can be met by the “what if” but many of them can.
Another golden rule is to never ever seize the opportunity presented by the appearance of the other parent at the time of access to have a “little chat” about matters that are concerning you. If you want to have a “little chat” do so on your own time and privately not on the children’s time with their parent. Children should not be privy to these” little chats” in any event. All exchanges during the drop off or collection of children should be positive, up beat and child centered. They should also be brief. Many mothers express intense anxiety to me about whether their spouse will be able to cope with the children for that long, whether he will just “park” them with his mother, if he will just leave them plonked in front of the tv and sometimes even the safety of the children while they are with him. These concerns often arise because the parents no longer trust one another rather than any inherent incapacity in either one of them. Frequently, the lack of trust can be so severe than some spouses will wonder if they ever knew their ex and whether or not he has become a total stranger. In those circumstances, handing over the children is very hard. If the trust has broken down to that extent, expert assistance is required. There are many wonderful people out there who are well qualified to work with you in this situation. In collaboration we use collaborative coaches and child specialists.*2 Whatever the process help is out there. I would urge you to consider that even though you and your spouse may not be able to sort out your financial circumstances by agreement that perhaps recognizing that your children need both of you, you might consider mediating your parenting schedules and arrangements. 3* The first step however, is to recognize that your children need both parents and the next is to look for help.
Never get your children to carry messages to their other parent whether those messages are in an envelope or verbal. By doing so, apart from what it does to the children, you are inserting yourself into the other parent’s time with the children and actively interfering with it. Lets face it, seldom will such “messages” put the receiving parent into good humour! If you had happy news to deliver you would have done so yourself.
Never speak badly by gesture, innuendo or direct comment about the other parent. This can be more difficult that you think. Most parents tell me that they do not do this yet mysteriously the children have become exceedingly reluctant to spend time with the other parent. There is no real mystery here, the children have listened to very negative conversations on the telephone, with other adults or they have received the covert messages contained in facial expressions, gestures and tone of voice. Never forget that your child loves both of his parents and he identifies strongly with both of them. Your child’s self esteem is wrapped up with his love for and his feeling of being loved by both his parents. If you badmouth the other parent, you are effectively badmouthing the child. In the long run running down the other parent will have a severe impact on your child’s self esteem. You know how difficult it is to listen to anyone criticise members of your family even when some of the views being expressed are not a million miles away from your own. Remember that the next time you are about to speak negatively to a child or in front of a child about their other parent. And also remember that you can communicate by gesture every bit as much as by direct comment. Keep your negativity and gestures for your friends, they have the maturity to decipher them, put them in context and take with a pinch of salt.
One of the most common situations separating parents will experience is the one of a tearful child who does not want to say goodbye. This tears at the heart strings of parents and they frequently go into meltdown with the child. Most parents will relate the child’s emotions to the fact that the child or children do not spend enough time with them and that is why they are getting so upset. That is an adult interpretation of the situation. More likely the children are absorbing the emotion of the parent that they are leaving and responding accordingly. Whether the children are with you for short periods or long ones, there are always going to be goodbyes. School yourself in the interests of the children to be bright and cheerful when receiving them and when they are leaving. Make sure that the first thing they see is a smiling welcoming face and that the last thing they see is a smiling waving parent telling them they are loved. As the time approaches for the children to leave either to visit a parent or when the visit is coming to a close, prepare the children for that event. Make sure that for the last 10 to 15 minutes they are not doing something that they will have to be torn away from when Mum or Dad comes. Start the winding down process and announce at regular intervals the arrival of the other parent. This should be done in a positive up beat manner. Children need to transition slowly and no more than any of us, they do not like to be ambushed. Sometimes there will still be tears and in those circumstances you remember that you are the parent and the children are looking for guidance from you. Hug the child and reassure him or her that he is loved. Remind them of something fun that you did or will do the next time they come and say something positive about what they might do when they get home and how much Mum/Dad is looking forward to spending some time with them. That much done tell them you love them and say Goodbye. Leave it to the other parent to deal with the emotions, you are on their time now. No matter which end of the access or custody spectrum you are on these rules apply. When children return home from a visit they should be allowed a chance to settle in quietly. Never quiz them about the visit. If they want to tell you something they will do so however, a general up beat query is normal. If your children are delivered to the door you should make sure to be at it to welcome them home. Once children know that there is a welcome for them in both houses and that the adults are not “losing it” they will settle down. Luckily for us children are extremely resilient so even if you haven’t started too well there is still time to pick up the pieces.
1. Dr Kubler Ross and the five stages of grief. I have written an article on these previously and you should be able to access it on older posts.
2. Collaboration is a process option to deal with separation or divorce which is very child and parent friendly. Collaborative coaches are communication specialists who work with the lawyers in the process to assist you in your negotiations but also to work with both parents on their communication skills to facilitate co-parenting into the future. I have written extensively about this on the website on and on my blog.
3. Mediation is an alternative dispute resolution method and can be used to sort out all the issues in your separation or divorce or just some of them. I would particularly recommend it to facilitate agreement on parenting schedules. For more information on mediation check out www.corkmediationservices.ie
The place of grandparents in family breakups.
When parents are locked in dispute and/or separating the support of extended family can provide enormous comfort to the children and support for the parents. Grandparents, in particular, can be a great resource in this situation especially for children who are close to them. Children caught in parental conflict can be extremely disturbed by the withdrawal of their parents from them. This can happen simply because the parents are locked in their own misery and cannot see beyond it. From the child’s point of view this can sometimes mean that not only do they lose a parent to some extent when that parent moves out but the other parent may be so preoccupied in their own emotional trauma that they are virtually lost to the child as well. Often the parents themselves have no conscious awareness of this and can be overcome with guilt in later years when they realise that is what happened. Parents who are aware that this is a possibility can put in place certain safeguards such as the support and help of valued extended family to bring the children safely through this period.
For grandparents to be truly effective in such circumstances, it is important that they do not lock themselves into the conflict on one side or the other. This is difficult but not impossible. The reality is that the less invested they are in the marital or relationship breakdown the more likely it is that their role as grandparents will continue uninterrupted. Support does not have to involve taking sides. It is amazing the number of people, particularly women, who comment to me that they never so much as received a call from the partner’s parents to ask how they were doing or to enquire about taking out the children or otherwise. The hurt that this causes , especially where there has been a long relationship, is immense. A simple phone call of enquiry and support does not amount to betrayal of the other party and is a long term investment in the welfare of grandchildren.
Many grandparents lose contact with their grandchildren as a result of separation and divorce. This does not need to happen. Grandparents have the right to go to court and seek contact with their grandchildren if they are not being allowed to see them. However, going to court to assert their rights as grandparents is an answer but not necessarily the best one. Sometimes, it may be the only option but mostly, that is not the case. If you have to go to court relations are most likely broken down with the custodial parent and any future relationships are going to be too strained for any except the most determined grandparents to sustain. Fights about children can be the most bitter and poignant all at the same time and tear everyone apart. Far better if you are a family member or grandparent to think carefully before getting stuck into the row and that is so whether you are the grandparent of the custodial parent or the non-custodial parent. Parents reconcile and if you have gone in for one side over the other, guess who will wind up losing? Sometimes, children vote with their feet and change where they live, sometimes courts make different orders than the ones originally made, sometimes people move away or decide to return to work or study and either share or change custody. All or any of the above could wrong foot you. Apart from those realities though there is the reality that all relationships if they are to be of any use are founded on trust and once lost it is very hard to regain. If you take a side you will lose the trust of the other parent. Realising how important trust is you should encourage everyone to try and resolve their issues with dignity and fairness and lead by example. Remember, the children won’t know why you have stopped calling or visiting or remembering their special occasions, they will just feel the gap in their lives and the attendant hurt. Think what you can do to help, focus on how you can be of use and concentrate on the most vulnerable people in a family breakup, the children. Doing this will keep you on the right side of everyone and don’t leave it too long to offer to help!
Is Collaborative Law just a Legal Process?
The statement that Collaborative Law is just a legal process is generally made to silence those lawyers who seem to many of us to be straying further and further away into “therapy” or as one colleague put it “tree hugging for lawyers”. To be in the forefront of a move away from the traditional way of doing things requires a certain pioneering spirit and dare I say it, a passionate commitment. It is this passionate commitment, frequently confused with evangelical zeal, that causes many lawyers to shy away in terror lest they be infected. You can almost see them arranging their fingers into a cross formation to ward off evil spirits. Is passion such a bad thing, particularly, when you know that what you are asking people, professionals and clients, to buy into, is so much better suited towards the resolution of family and couple issues than any other process currently available. And, in addition, all the research from the States indicates that unless this process is communicated to clients with passion, there is little or no take up. All that said, however, is it just a legal process at the end of the day? I believe that the reason it has so much more to offer clients is quite simply because it is more than just a legal process.
Collaborative Law offers an opportunity to families in crisis to transit from a one family structure into a two family structure without bloodshed (in a metaphorical sense) but more than that in a way that allows the family to preserve the essential communication between them that will enable them to continue to parent effectively post separation. By looking at the family as a unit and focussing on the continuing needs of that unit albeit now a bi-unit (if there is such a thing) the collaborative team will actively endeavour to bring about resolutions that do not leave one party feeling like they have lost at the expense of the other’s gain. Adversarial law (court practice) is position based i.e. each side tries to gain an advantage over the other and to win at the other’s expense whereas in collaborative law we are interest based rather than position based. Accordingly, we try and bring about a win-win by looking at every issue to be negotiated to see where value can be created.
One of the reasons it is very hard to work in the family law area is that clients are such a bundle of emotions which makes them very hard to manage but also they frequently want to talk to us about stuff that does not fit into the definition of a legal issue. We have the thankless and difficult task of making this particular family fit into a system that was not designed for them. Should we not mould the law to meet people’s needs and not the other way around? This is what collaborative law does – it takes this family with all their messy emotions and the issues that are not legal issues and it simply says ok, we can deal with all this. How? First of all, we will ensure that the lawyers who are adversarily trained work together rather than against one another and we do this by training them specially and secondly, we get them to sign a contract with the clients that if the collaboration does not work , the lawyers cannot continue to work for these particular clients and the file must be handed over to other solicitors. This ensures that the solicitors work together rather than against one another. Thirdly, we bring in collaborative coaches who are also specially trained and who have a therapeutic background. They will work with the couple to manage emotions while going through this very difficult time in their lives and they will also help them with their communication skills going forward. From the outset the collaborative process works directly with the couple to empower them to find their own solutions. All “experts” required are retained by the team and not by one party or a lawyer. Vital experts such as financial specialists and child specialists are collaboratively trained and work with the team. Financials do far more than just analyse the finances they actively assess the financial personalities of the couple, they work in the process constructively rather than to be destructive and they road test resolutions. The child specialist actively brings the voice of the child/children into the room in a non-judgemental way. This ensures a balance and focus within the process moving forward. When all these people work together, which they do, for the benefit of a particular family, no particular profession dominates, each piece is of critical importance. The energy created by diverse professional standpoints aligned to a common goal combined with the insider knowledge of their particular family dynamic that each couple uniquely possesses creates far more than just a legal process and allows for deep resolution and not just shallow peace. In fact collaborative practice understands that much of what divorcing couples need help with has little or nothing to do with the law.
When the lawyers come into this process they are of course coming into it to provide their legal knowledge but because they are working closely with coaches, child specialists and financial specialists as well as their colleagues they have to acquire knowledge and skills that were not required previously by them. This does not mean that they need to become coaches but rather that they have sufficient insight into their work so as not to actively harm the work being done by the coaches. Similarly the lawyers will have to interact with the financial specialist without attempting to position him or her or indeed any member of team, least of all their own client. Working within a team also requires self awareness of all members of the team and not just the lawyers. It may, however, be more difficult for lawyers than it would be for others since we are not given to a great deal of self analysis. All clients identify that their children are their priority and that they would like no harm to come to them. They want them to come through the divorce or separation unscathed. We refer to this sort of goal as a macrogoal. It is our job as professionals to offer a process which supports the client’s macrogoals while at the same time assisting them in controlling the negative potential of their emotions and prevent them from sabotaging their own macrogoals. As the Californian Collaborative attorney and mediator Chip Rose says “The recognition that divorce creates significant legal, financial, psychological and emotional needs in our clients and the creation of a practice model to address the confluence of those needs fills a vacuum in the dispute resolution options for clients.” The interdisciplinary team model of collaborative work is collaborative practice’s unique contribution to alternative dispute resolution and to a holistic approach to families and clients in crisis.
Horses for Courses.
Who are the people in our communities engaged with matrimonial breakdown? In general it is the therapist/counsellor and the lawyer. In Ireland, the lawyer is still the first port of call for the person in trouble and in Ireland, while we are suspicious of lawyers as a breed just as in other countries, we tend to trust our own lawyer. In Ireland, we are also wary of the whole therapy thing seeing it as an import from America and only for people who are a little mad which we certainly are not.
Lawyers and Therapists are, therefore, the people in our communities who have training and experience in family breakdown and who are the custodians of a great deal of knowledge in this area. Is it not, therefore, blindingly obvious that the public would be better served at this crisis point if both professions were to combine their knowledge and experience? Would that be possible and if it was how would it work? Would these two groups be able to talk to one another? With the goal in mind of combining our knowledge and experience lawyers and a variety of mental health professionals (psychologists, therapists, counsellors, psychotherapists, and mediators) attended a training led by Dr. Susan Gamache from Vancouver, Canada in Dublin recently. One of our first tasks was to overcome what each group thought about the other because such assumptions tend to blind us to possibilities.
The Therapists thought that the lawyers were task driven, aggressive, obsessive, money orientated and arrogant and the lawyers thought that the therapists were airy fairy, tree hugging, vegetarian yogis. The purpose of the three day training was to dismantle these assumptions and to provide both groups with a new language that would enable them to communicate with one another. That first exercise – what we each thought about the other – caused much laughter and broke down some barriers. Over the remaining days, we worked together so that we could supply the professional members of the collaborative team and having done so that we had a common language and goals enabling us to gel together as a team.
The collaborative process is extremely flexible. On one end of the scale, it allows lawyers and clients to work together to find solutions outside of the court system. In the middle of the scale, it allows for coaches (mental health professionals are called coaches in collaboration) to be brought into the process as needs be and the clients will work with those coaches to assist their communication and to manage emotions enabling them to work more effectively with the lawyers. Similarly in this model, financial specialists, or child specialists can be referred to when necessary. On the further end of the scale, all professionals work together at the same time to deliver resolutions to a family in crisis. It was to enable us to work in the middle to the end of the scale that we attended the training.
Different clients will have different needs and all three models are viable ways of working. The full team way of working is, however, very exciting in its possibilities for families. First of all, it enables us to work with families whose communication dynamic is very fractured or where there are some serious difficulties. Such family situations would be very difficult to manage with just lawyers and clients as lawyers are not therapists and will find it extremely difficult to manage highly charged emotions. They may unwittingly inflame them rather than dampen. Where there is a large amount of suspicion and positioning between the couple bringing everyone into the room and doing all the work together enables everyone to see what is happening at the same time and reduces the possibilities of misunderstandings. When a range of people work together sharing a common language, (the language of collaboration) and common goals, a synergy comes into play which inspires a kind of creativity that is not available in any other way of working, in short the team is greater than the sum of its parts. Finall, when a team works together from their diverse professional backgrounds they demonstrate communication at its most effective and this is enormously empowering for the couple in transition.
The team model allows lawyers to offer collaboration to a broader range of clients than we might otherwise feel competent to do. And even though having a full team complement is going to prove more expensive than say lawyers and clients working together, it is still more cost effective than going to court and that includes financial as well as emotional costs.
“Fair Daffodils, we weep to see you haste away so soon”
And so it is with many a romance – gone too soon! Now that Spring is in the air, our thoughts naturally turn to love and romance. Does Romance preclude conversations about finances and assets? Many of us probably believe that it does. Yet, we family lawyers ,know that money issues are behind many separations and divorces. Our attitude to money forms as much a part of our personality as, for example, our attitude to family and friends. Is it possible that if we honestly discuss such things that we could prevent our relationships for ending in separation or divorce?
There is no doubt that in any relationship, money is likely to play a big part. Picture the man who has a conservative attitude to money, married to a woman who likes to spend everything that comes her way or picture the business man who likes risky investments, wheeling and dealing and who is married to someone who believes in having a secure, pensionable job and the only investment worth considering is one that is rock solid. Such people have a rough passage ahead of them. Even if the guy with the conservative attitude to money married to the spendthrift woman were to put up with her behaviour because he is earning plenty, what happens if he loses his job or his investments plummet? And even if the business man who likes to take financial risks found his pension loving wife amusing rather than distressing, how different might that be if the risky businesses turn into dust?
As our relationships become more complicated since many of us will have been married before and are coming to the new relationship with considerable emotional baggage as well as frequently children and assets, we have to consider entering into prenuptial agreements or at least having realistic conversations about these matters pre-marriage. Equally, as our relationships struggle toward separation and divorce because of money circumstances, we might consider it advisable to talk about money before things get worse. The conversation about whether or not to have a prenuptial agreement is not an easy one to have. Most such discussions are carried out through old style adversarial lawyers. Generally one lawyer is representing the moneyed party and intends to keep the money for his client. This does not make for a discussion between equals. Hence such discussions are not enlightening, they are frequently a source of contention between the couple and one of fear and vulnerability. Even in the United States, where if popular tv series are to be believed, “prenups” are as common as sandwiches, the reality is that nearly 90% of people marry without a prenuptial agreement.
So how might these two conversations be facilitated? Collaborative practice offers us a way forward. In collaborative practice we work as a team towards resolutions rather than taking sides or positions. For the pre marriage couple who want to look at the question of prenuptial agreements but don’t want such a conversation to cause a rift in their relationship, then the collaborative team is ideal. Legal advice is built into the process as each side comes to the table with their lawyer. Collaborative coaches are on hand to work with the parties within and outside the process to facilitate communication and to balance emotions and don’t for a second think that money is not emotional! To assist with the planning we have neutral financial specialists who can advice the prudent course financially for both parties bearing in mind their respective needs and resources. The neutral advises the couple and is equally aligned to both of them rather than any one. The financial neutral will also establish the financial personalities of each of the parties and build that in to his or her advice. All of these people work together for your benefit and all are collaboratively trained though from different professional backgrounds. For those couples who are married but whose finances are causing an enormous strain in their relationship, the collaborative team might be retained, before things come to separation or divorce, to see what agreements can be reached to meet the respective needs of both parties. It will be the best money they ever spend when you weigh it up against the cost of divorcing financially and emotionally. We might call this a “postnup”. Within the collaborative process, the couple can move from rigidity to possibilities, from powerlessness to empowerment and from fear to courage and forward thinking. These are conversations worth having and instead of killing the romance can deepen the understanding!
Detox is the new buzz word. We are bombarded with invitations from health spas to come and detox and with books and products to assist us to detoxify. As well as our bodies, however, maybe we should think about detoxifying our minds? Can the way we use language poison or cause toxicity in our minds? Those of you who are involved in sports or physical fitness training will be familiar with the power of positive thinking as a concept and how positive imaging and focus can affect our performance in these areas. Can we apply this way of thinking to other areas of our lives such as divorce and separation?
When we speak about separation and divorce we tend to use words like “broken” such as “broken families” and “broken marriages”. We also speak in terms of failure, for example, “failed marriage” or “failed relationship”. Other terms frequently used in the context of separation or divorce are splintered, rift, torn apart and so forth. Emotions or feelings associated with these words tend to be ones of anger, hatred, bitterness and conflict. All these words carry messages and bring images with them and the messages and images are overwhelmingly negative. These words all impact heavily on our subconscious and pre-program our responses to separation and divorce. When we hear these words, negative pictures of couples sitting angrily or glumly on benches or equally negative, if somewhat clichéd, images of hearts with a large crack down the centre. If we leave our language unexamined, unbidden negativity will overcome and overwhelm us. Are the emotions of hate, anger and bitterness the best way forward for those of us experiencing separation and divorce and do they serve us well? It is natural for us to feel sad and angry when a marriage or relationship ends but should we leave those emotions unchecked and unexamined and move forward in that vein? Unchecked emotion will lead us down the path of a bitter and aggressive conflict likely to wind up in court. Many think this is inevitable, human nature even, I think not. In this area, as in any other life challenge, we must rise to the occasion. We have to take control. All of us can behave well in good times, however, life is not all good times and divorce and separation can be for many, one of life’s challenges. They are a life event and how we meet such events is something that we have control over and about which we can make choices, good and bad.
For those of us who believe that legislative provision for divorce and separation is an intrinsic evil, it will never be possible to adopt a positive progressive attitude. However, for the rest of us and especially those experiencing endings, we should remember that every ending offers an opportunity. Is there such a thing as a “good divorce”? I believe that there is and it does not mean that divorce is good but that we can behave well and go through our divorce or separation in a good way so as to minimize the fall out effects on our children, family and friends. To help us on this journey we can reflect on the language that is commonly associated with separation and divorce and we can try and detoxify it. For instance, instead of talking about broken families, for example, we might speak of families in transition. And you will not be alone in these thoughts. All over the world, people have started to examine and question the way we deal with separation and divorce both personally and as a society.
In Ireland, family lawyers, have begun to question their response to the challenges of divorce and separation. Many of us have now qualified in a method of dispute resolution called “Collaboration”. As well as lawyers, other professionals working with families such as financial experts, child specialists and therapists have also trained in the collaborative method. All of these professionals as well as their collaborative training bring to the collaboration a wealth of knowledge and experience from their different professional standpoints. The unique aspect of collaboration is that it enables all this knowledge to be pulled together at your service to help you and your family find resolutions which both empower you and enable you to move forward. Everyone needed for your particular case works together in a team. All meetings and conversations are conducted with your permission knowledge and most frequently in your presence. There is little or no correspondence and everyone agrees at the outside not to go to court or threaten to go to court for as long as they are in the process of collaboration. In fact everyone , lawyers included, signs an agreement to that effect. The team works like a musical ensemble, frequently creating more than any one of them could on their own. Each member of the team like in a well-conducted ensemble, has a defined role and works with the others to support you and bring you through this life event with dignity and fairness. Does this sound too good to be true? Not so. Right now collaborative teams are in place and working in places all over the country. Collaborative practise is the fastest growing method of dispute resolution in the world. For more information on collaboration you can have a look at my website, www.familylawireland.ie or the national website of the Association of Collaborative Practitioners of which I am a board member, www.acp.ie. The International website can be accessed at, www.collaborativepractise.com .