PROPOSALS SEEK TO STRENGTEN CHILDREN’S RIGHTS

Full text available at http://www.irishtimes.com/newspaper/frontpage/2012/0725/1224320764736.html

Report of Special Rapporteur on Child Protection

Any person should be able to apply to court to seek to have a child at risk placed in the care system under proposals being examined by the Government.

At present only the Health Service Executive (HSE) may take court proceedings to have a child placed in the care system.

The recommendation is one of many included in a report by the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon.

The report says any person should be able to seek an order in respect of a child who is not subject to care proceedings. However, there are some limitations in order to avoid nuisance applications and also to prevent interference with the Constitutional rights enjoyed by the family in Article 41.

These applications will only be allowed in ‘exceptional circumstances.’ An applicant would be required to show ‘reasonable grounds’ to believe that the child had not been receiving adequate care and protection. It would also only be accepted in cases in which a child had previously been brought to the attention of social services.

The proposals follow on from the findings of  the Independent Child Death Review Group that social services had “abdicated their duty” by failing to protect the welfare of many vulnerable young people who were known to the HSE.

The report expresses concern that some young people are spending years in institutional care or in multiple placements because of the lack of “suitable” foster families. It recommends that a shortage of foster placements be addressed without delay. Other proposals include:

The report also proposes that all non-EU national parents of Irish citizen children are given permission to remain in Ireland, on foot of  the landmark European court judgment last year. It also proposes inserting a reference in the referendum on children’s rights in the constitution to allow the right of children to be heard in all judicial and administrative proceedings which relate to them.

Minister for children Ms. Frances Fitzgerald alluded to the fact that the key message in this report is that we must continue to implement our ongoing reform agenda for children and families. The proposals in this report will ensure that the welfare of children always come first and that if any member of the public has concerns about the welfare of a child these can be brought to the attention of the authorities who can then look into the matter and decide if their assistance is required.

Publication of the ‘National Standards for the Protection and Welfare of Children’

This report comes at the same time as  the publication of the ‘National Standards for the Protection and Welfare of Children’ by (Health information and Quaility Authority) HIQA..  These standards will ensure that frontline services will be subject to independent inspection for the first time to ensure they are providing adequate care and protection to vulnerable children. This follows a series of damning reports which have highlighted serious failures in child protection and welfare services.

Barnardos have welcomed the publication of these standards as are of the opinion that they will enhance the welfare and protection of children in Ireland.

Taoiseach Enda Kenny also announced yesterday that he expects legislation in connection with the Children’s Rights Referendum to be published shortly. He made reference to the ‘devastating’ reports into children’s services in the past and it was commented that for too long the needs of vulnerable children were not adequately protected. The proposed legislation will be put together through consultation between Minister Frances Fitzgerald and all interested groups who work on behalf of children. This will ensure that those who are experts in the area have an imput into deciding on how this legislation should be framed and this can only result in a positive outcome.

At Brophy’s we feel that these developments ensure that the care and welfare of children is no longer something which is  hidden behind closed doors and Irish society is finally taking the matter seriously. While the Constitution is respectful of the family and in Article 41 ‘ the  state recognises the family as the natural primary and fundamental unit group of Society…. and the basis of social order…,’’ it will no longer remain uninvolved where there is a risk to the welfare and care of the child. It is certainly time that this was the case and what may have been acceptable practice in the past will no longer be allowed. It is time that there is a more transparent approach to many areas of Irish Society and that vulnerable people are no longer required to suffer in silence and instead are given the help and support that they require and deserve.

Brophy Solicitors

26.07.12

Barring Order Applications

I remember when I did one of my first barring order applications – I thought it was last September but when I checked it out, it was over 25 years ago. Goodness how time flies.

It was one of those cases where I knew I was going to lose. My client was not arguing that he had not been violent to his wife. His argument was that she had been just as violent to him and that she had told him that she wanted him out and he would never get back into the house again because she was getting a barring order against him. I remember that the wife gave her evidence very honestly and openly and her application for a barring order was refused because the judge accepted my argument that a barring order was not a substitute for a divorce. I said that if the main purpose of the application was to remove the husband permanently from the house, then a barring order should not be granted particularly in circumstances where both sides accepted that there was mutual violence between them on a fairly regular basis.

I remember the judge at the time saying that the barring order is not intended to be an Irish divorce.

I used that argument on a number of occasions over the following few years but I have not used the argument for many years now and I have not heard of any other lawyer using the argument. It now seems to be quite accepted that a barring order is a sort of Irish divorce.

The original purpose of barring orders was to allow a breathing space. The purpose was to enable the two parties stand back in a calmer atmosphere and see if they could work out their differences and perhaps attend counselling or get some other form of third party help. I cannot recall over many years, any judge suggesting that the parties should see if they could resolve their differences in this manner as part of a barring order application.

This is all the more surprising when you consider the emphasis placed on the role of the family in our Constitution. So there you have it. You don’t have to wait four years to get a divorce, you can get a barring order this afternoon.

Kevin Brophy 

Lawyers should not act for two sides in property deals - report finds

Full text available at: http://www.irishtimes.com/newspaper/ireland/2012/0709/1224319635301.html

A Law Society task force has decided that solicitors should not be permitted to act for both sides in a property transaction, except in limited circumstances provided for in law. . Its report will be discussed by the council of the society next Friday.

The prohibition should extend to voluntary transactions between, for example, family members where a parent signs a home over to a child, the task force concluded. These are permitted in many jurisdictions. The task force was set up in light of concerns over the same solicitor acting for both purchaser and vendor in conveyancing transactions. The practice was also the subject of a number of complaints to the Law Society.

The task force examined the practice in a large number of other jurisdictions, in the common and civil law traditions. This confirmed every other common law jurisdiction, and most civil law ones, had a prohibition on the same solicitor acting for both sides in a property transaction.

Many of these jurisdictions permitted a range of exceptions, but the task force concluded most such exceptions were unjustified.

On the issue of voluntary transfers of property, usually between family members, the task force said the case for the continuation of allowing one lawyer to act for both sides was undermined by a survey by the Health Service Executive and UCD which found 94 per cent of financial abuse of the elderly in Ireland was perpetrated by family members. Example s of financial abuse include forcing or misleading  an elderly relative   in to signing over their interest in the family home.

The task force did not see how one legal adviser could give independent or impartial advice to donors and their donees.

It recommended that in the case of voluntary transfers and transfers below market value there should be a total prohibition on solicitors acting for both sides.

On transfers for market value, the task force noted there had been adverse judicial comment on the lack of a Law Society prohibition on one lawyer acting for both sides. There should be a prohibition in such cases, it stated, except where both parties were associated companies or were “qualified parties” under EU regulations.

Brophy Solicitors

09.07.12

Family Law Update - 9th March 2012

When I say to people that I do a lot of family law work, invariably one of the questions I get asked is what in my experience is the biggest single cause of marital breakup and disharmony. Without any doubt I can say that the biggest single cause is the breakdown in trust that can occur between two people living together over several years.

This was really brought home to me last week when I met a client who told me that his marriage had got into difficulties because his wife discovered a substantial number of letters from creditors, which he had kept hidden from her. The fact that large sums of money was due was bad enough for his wife but it was mainly the fact that he had kept it all hidden from her and then hadn’t dealt with the problem. She confronted him and they agreed a course of action, which meant that he had to contact various creditors and deal with the various debts that had been created. Unfortunately he did not contact them and did not deal with them.

So the problem was first of all he hid away letters demanding money and then when this was discovered, he agreed to follow up on various items and then did not do so.

By the time clients come to me, the difficulties are almost always irretrievable.

The fundamental point in all of this is that if you have problems, the first thing you have to do is confront them. Then you have to tell your partner that you will deal with the problem but then, most critical of all, you have to actually deal with them. Confronting the problem and saying you will deal with them are perhaps the easy part – you then have to pick up the phone or write the letter and actually deal with the problem. This can be extraordinarily difficult but if it doesn’t happen, the consequences can be…. well, I don’t have to spell it out.

Kevin Brophy

09.03.12

CIVIL PARTNERS AND CO-HABITANTS

The recently enacted Civil Partnership Act defines a cohabitant as “one of two adults, whether of the same or the opposite sex who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other”. Part 15 of the Act provides redress for qualified cohabitants in certain circumstances but economic dependency is necessary to qualify.

If you are a surviving cohabitant then an application for provision must be made within 6 months of the date of a Grant of Probate or Administration issuing and notice of the application must be given to the personal representatives and any spouse or civil partners. 

The cohabitant can receive up to a one half share of the estate where there are no children surviving and 1/3^rd where there are children (this is where a will has been made). If there is no will then the cohabiting partner can receive up to 2/3^rd of the estate where there are surviving issue and the entire estate where there are no issue.

As you can see, it is a complicated area and if any cohabitants are living together, whether same sex or otherwise, if they have any doubts whatsoever about their entitlements, they should seek legal advice. The consequences are obviously extremely serious.

Kevin Brophy

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