Should Certain Barristers be Barred from Family Law Cases?

I recently ran a very bitterly contested family law case and while my client was not the easiest client to represent, the barrister on the other side was the most unpleasant, confrontational, vindictive professional person I have ever come across in my years in family law.

There was never the remotest possibility that this case was going to settle amicably while this person was making the decisions on the other side.


The situation was made all the worse because I was actually quite impressed by the barrister’s client, who came across to me as a fairly reasonable individual.

In my view the barrister did her client no favours. A case that should have been settled in a matter of months ended up taking three years to come to a conclusion and I am quite convinced that this case was prolonged unnecessarily and tensions were increased quite extraordinarily, all down to the ‘never give an inch’ ‘fight every single tiny aspect of this case to the very end’ attitude of the barrister on the other side. And this was not an argument just about money. This was a case involving young children as well as property.

Unfortunately, in my experience this particular barrister is not on her own. Most of them I am happy to say are exceptionally competent and fair and reasonable to deal with. However.....

Here’s an idea. If a man can be barred from his home for years on end because he is aggressive, vindictive and at times threatening, why can’t a barrister be barred from a courtroom for exhibiting the exact same traits particularly when children and vulnerable adults can be permanently damaged as a result of their actions?



Kevin Brophy
Brophy Solicitors

I recently read an article by an Indian lawyer criticising the lack of property rights for women when they separate from their husbands. The lawyer was arguing that an Indian woman should have some say in relation to the sale of her family home and that she should be offered greater financial security in the event of divorce or separation. The position in India seems to be similar to the position in Ireland prior to the enactment of the Family Home Protection Act in 1976.

The article referred to the position of woman in Ireland as something to aim for. It was an interesting article but by far the most interesting aspect of it was the absolute deluge of negative comments received from Indian men. The common theme in the responses was related to the number of female “gold diggers” who were allegedly marry men for the sake of their money and then deliberately divorce them. We completely take for granted legislation such as the Family Home Protection Act and legislation in relation to the payment of maintenance and financial provision on divorce and separation but it should be born in mind that while we take all of this completely for granted, changing public attitudes can be painfully slow and difficult process.

Kevin Brophy 

 

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

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

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 

Child Kidnapping cases

There was considerable coverage recently of the two young boys who were wrongfully removed from New York to Ireland by their mother. The High Court decided that the children should stay in Ireland and on Thursday last, the Supreme Court agreed with this. The general rule in child kidnapping cases is that the children should be returned to their place of habitual residence if they have been wrongfully removed. In this case, the judge said that because the children, aged 9 and 7, did not want to return to their country of habitual residence then the court should listen to the children. I absolutely accept that the children’s views should have been taken into account but this sets an extremely dangerous precedent. I do not understand why the New York Court could not have made this decision. It rewards the mother for effectively breaking the law in this case. She had no links to Ireland as she is a Latvian citizen and only had her sister living here. The father is now in New York and although the circumstances of this case, as reported in newspapers, do not reflect well on him, these children are now unlikely ever to have a relationship with their father.

I really believe this is a dangerous precedent for Ireland to set. This is a case that will now be used in other jurisdictions to justify this type of kidnapping.


Kevin Brophy
25.10.11

I WANT A DIVORCE BUT I CANNOT FIND MY WIFE!

A client made a consultation a few months ago to enquire about making an application for a Divorce and given that we specialise in Family Law there did not appear to be anything unusual about this at the outset. And so his story goes as follows:  my client was married in 2004. His wife is originally from Latvia. They separated in early 2006 after his wife discovered my client was having an affair.

My client ended up in a new relationship with this third party and subsequently had a child together. Understandably his wife moved out of the family home but remained in Ireland until early 2011 when she then left to return to Latvia. My client now wants to obtain a Divorce and marry his new partner but unfortunately he has no address for his wife. We contacted our private investigators and through a series a investigations involving visa cards, PPS numbers and even facebook we discovered that she was most certainly living in Latvia but we are still unsure of her exact address!

This of course is a huge problem for our client, as all legal proceedings must be served directly on his wife. However there is an exception to this rule that fall under Order 10 of the Superior Court Rules.

Save where otherwise provided by statute or by Rules of Court, service of a document shall be effected upon a person in the State by delivering to that person a copy thereof or by leaving the copy for that person at his or her last or most usual place of abode, or at his or her office, shop, factory, home or place of business with that person's husband or wife, as the case may be or with a child or other relative (apparently residing with that person) of that person or of his wife or her husband as the case may be, or with any agent, clerk, servant or employee of that person, or with the person in charge of the house or premises wherein that person usually resides, provided that the person (other than the person upon whom service is to be effected) with whom the copy is left is not under the age of sixteen years and is not the person instituting the proceedings

14. (1) Wherever the Court is satisfied upon ex parte application made in that behalf, that, for good cause shown, service of a document cannot be effected in a manner or in any manner prescribed by these Rules, it may make an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise. Particulars of such order shall be endorsed on the original and each copy of the document to be served.
(2) Where the Court is satisfied that any particular mode of service prescribed is at any time not then available, it may by order in writing direct that the service of documents or of any particular class of documents be effected in such other manner as it thinks proper. Such direction shall be retained by the Clerk and shall remain in force until the said mode of service is again available or until the direction is revoked by the Court.
15. The Court may, if it sees fit so to do, deem the service of any document actually effected in any proceedings, even though not effected in a manner prescribed by these Rules, to be good and effected service.

This allows an application to be made to the courts for substituted service of legal proceedings. We explained the situation in detail to the judge, showed the judge proof that we knew his wife was living in Latvia but we were unable to find an exact address. We then applied to serve proceedings on her by way of advertisement in two Latvian national papers. The judge allowed us to serve through advertisement and we were eventually able to obtain a Divorce for our client.

It is important to realise that a Judge must be absolutely satisfied that the respondent (the person receiving the legal proceedings) cannot be located and that every possible effort has been made to find him/him.

Same Sex Marriages

The Office of National Statistics in the UK say that over the last five years 5.5% of opposite sex marriages have ended in divorce while only 2.5% of same sex civil partnerships have been dissolved. We are talking about 2.5% of 42,000 civil partnerships.

What does this mean? Do same sex couples take the commitment more seriously than opposite sex couples?

The report also shows that people living in European countries which have recently legalised same sex partnerships have a far more positive attitude to homosexual marriage than in those countries where there is no such law.

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