BEST INTEREST OF THE CHILD?

I recently acted for a father, who had not seen his three young children for six months. He was trying to establish access with them. It was absolutely clear that he had the best interests of his children at heart and the reason why he had not seen them was because he had had a falling out with the mother, who was alleging that he was poisoning the children’s minds against their mother. Try as I might, I could not get any evidence of what exactly was said or done to constitute this “poisoning” allegation. When he was represented by his previous solicitor, my client had lost all access to his children and he says he was very unhappy with his legal representation.

I brought the matter back to court and sought access. The main point of this blog however is to comment on the attitude of the Legal Aid Board, who represented the mother. My client knew that re-establishing access would be difficult and would be met with opposition by the mother and therefore we limited our access request to 4 hours a week on Saturdays. We were met with a counter proposal being 1 hour per week on Saturday supervised by a family member and the mother.

I advised my client that he should let a judge decide whether or not this was a reasonable offer of access as I was very firmly of the view that it was not. He was literally terrified that if the case went to a hearing before a judge, he would never see his children again and ultimately he accepted the one-hour offer.

The Legal Aid Board’s job is to represent their clients but like everybody else, they -particularly as a State body - know that all family law cases are supposed to be determined based on the best interest of the child. I have been doing family law cases for 25 years and I think at this stage I know when a father is genuinely committed to his children or not. In this case my client was clearly committed to his children but legal representatives felt that one hour a week with their father represented the best interests of the children.

If ever there was a reason why family law should be kept out of the hands of the majority of lawyers, this is it. I cannot say stay away from lawyers but I will say carefully assess the legal advice you are getting and before you decide to go with a particular solicitor, make absolutely sure that that solicitor genuinely believes that family law cases should be determined by what is felt to be the best interest of the children.

Judging Parents!

Emma (not her real name) is 8 years old and her parents have spent exactly half of Emma's life fighting in the Circuit Court about matters in relation to custody and access. We act for a very impressive and committed father, who is not married to the mother, and we argued that every obstacle possible has been put in his path to upset the relationship he has been trying to maintain with his young daughter.

  

We had, what we hope is, our final hearing in the Circuit Court and I was enormously impressed by the judge who heard the case. She listened to what the legal representatives had to say but she also involved the parents and it became very clear very quickly that she had little or no sympathy for the views of the mother and the reasons why access did not happen in the past. This was a case where two psychologists had prepared expert reports recommending that my client be granted joint custody of his daughter and setting out very detailed provisions for weekly access, particularly in relation to special occasions such as Christmas, Summer, half term and so on.

One of the very unsatisfactory aspects of this case is the fact that the mother will have no contact whatsoever with the father. She will not answer telephone calls, she will not reply to letters or emails and will not even reply to text messages.

The judge was very directive and very strong in saying to both parties  "I completely accept that you love your daughter - what I am saying is that you do not love her enough". She said that if the child is being involved in the dispute or is suffering as result of the dispute between mother and father then this is something that can be remedied. The second thing she said that really stuck a chord with me was "do you know what would be a nice thing to do - when you are with Emma, say something nice about her mother/father". This comment drew shakes of the head from the mother and a very strong reprimand from the judge.

All I would say in conclusion is that the legal system is often rightly criticised as being the wrong forum within which to try and resolve family disputes. This is a really good example of that.  But when it came to this final hearing, I left court feeling elated, not just because we had secured a terrific outcome for our client, but because of the manner in which the case was dealt with by the judge.    In my view the decisions made by the judge were fair and just and leave no room for appeal.  

However, logic plays little part when it comes to this level of animosity and bitterness and I am very sorry to say that my client will almost certainly see the inside of the Circuit Court once again in the fairly near future.   I hope I am wrong.

Kevin Brophy 

ACCESS TO CHILDREN - THE DIFFICULTIES FACING FATHERS

I was reminded again quite recently of the difficulties a father faces when making an application to the courts for access. We always hear about the very real problems unmarried fathers face but equally some married fathers after separation or divorce find themselves in a very difficult position.

My client married his wife in 2005 and had a baby girl in 2008. Life was sweet and rosy for the next few years until late 2010 when a “third party” got involved and the couple separated. The mother was understandably extremely frustrated by the actions of the father and as revenge refused the father access to his child.

The mother demanded more maintenance and used “if you ever want to see your child again” as a way of securing this. My client in a desperate effort to see his child increased his weekly payments substantially but unfortunately the mother was not willing to keep her side of the “bargain”. Despite this my client continued to pay maintenance to the mother. By the time he realised his only option was to go to the courts, over 3 months had passed. We immediately made an application to the courts for Access. We appeared in court only to discover that the mother had sent in a letter to the courts stating that she would be in Poland on that date and requested an adjournment. Despite our best efforts the judge refused to deal with access in the mothers absence and so a new date was given.  By the time we actually got a hearing date my client had not seen his child for the best part of six months.

The problem of course we now faced was that this 2 and half-year-old child had almost forgotten her father. The judge is obliged to make all decisions in the “best interests of the child” which in this case would not be the best interests of the father. The judge was extremely angry at the mother’s behaviour but what could he do?

The child for the last 6 months of her young life knew only the routine of living with her mother. The critical question now is whether the Judge should make an order that the father has 50/50 access to his child?  Unfortunately but understandably the Judge felt that this level of change would not be in the child’s best interests and so an order was made for access initially at a low level and to increase gradually over a period of 6 months until it reached as close to 50/50 as it could be.

My very strong message to any of you who find yourselves in this position is to immediately make an application for Access to the District Courts (http://www.courts.ie/rules.nsf/53bd32841fc5bbf280256d2b0045bb5d/d4868d2287f730028025763a004a4f86?OpenDocument) as there is often a waiting list of up to 8 weeks before you can get a hearing date.

Laura Gillen

Brophy Solicitors

laura@brophysolicitors.ie