Tipp FM Legal Slot – 17th December 2013
John M. Lynch on Family Law
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This morning John Lynch will update listeners on particularly interesting developments in Family Law. John, what developments in Family Law have you seen recently?
- A non-biological parent who was in loco parentis was awarded Guardianship. A judgement of Mr Justice Henry Abbott in MR v paves the way for a man with no biological connection to a child, but acting in loco parentis, to be given guardianship of a child in certain ‘exceptional’ circumstances – despite the opposition of the natural unmarried mother. In these circumstances the children had been abandoned by the mother and brought up by the applicant at his expense, and in circumstances she had failed to satisfy the court that she was a fit and proper person to have custody. He was in loco parentis, but needed guardianship to deal with certain organisations, for example, schools, passports offices and hospitals.
- We had a number of cases where fathers were granted custody. We had a case where mother removed the child from jurisdiction without the fathers consent. We were involved in securing the return of the child to this country and secured custody for the father.
- The Rights of Grandparents Bill 2013 makes provision for the recognition of the grandparent as a key part of the family unit, by adding a definition of “grandparent” to s2 of the Guardianship of Infants Act, 1964. Currently, grandparents have to go through a two tier system to obtain an access order in respect of their grandchildren. The requirement to obtain the leave of the court will no longer apply in the case of grandparent. A “grandparent” will be defined as “of whole/half blood or by affinity and includes the spouse of such person, a parent of a child’s adopted parent and an adoptive parent of a child’s parent”. The new Bill seeks to recognise that grandparents play a central role in the lives of their grandchildren and are frequently at the core of the modern family unit by adding them to the category of person who can apply for custody of a child.
- Parentage and Citizenship: The issue of legal parentage and citizenship was also addressed in the High Court in March of this year when an Irish man won the right to be declared the father of a child, born in India, via a surrogacy arrangement. The child had been conceived in vitro using an anonymous donor egg and the man’s sperm. The surrogacy arrangement involved the surrogate mother, the man and the man’s partner. The man and his partner were both named as the child’s parents on her birth certificate, which was issued in India. Noting that the interests of the child were of the utmost importance under the Guardianship of Infants Act, Justice Abbot ruled that the child was entitled to Irish citizenship and to an Irish passport.
- Surrogacy: In the case of M.R, the surrogate mother was the sister of commissioning (genetic) mother and had not objected to the application to have the birth certificate of the babies, who were twins, amended to her sister’s name. The Registrar of Births, Deaths and Marriages had, however, refused to register the genetic mother on the birth certificate and an application to court became necessary. The High Court ruled that the genetic mother had the right to be legally recognised as their mother on their birth certificates. Effectively, the judge was giving the genetic mother new legal status. This was despite the evidence of the Registrar of Births Deaths and Marriages that only the woman who gave birth could be registered as “mother”, quoting the Latin Maxim “Mater Semper Certus Est”. This is under appeal.
These developments are significant as they show progress in how the Courts previously viewed the “family unit” as enshrined in the Constitution; the more conservative family model, towards a more modern model, thus reflecting family units in today’s society.
There is now a much wider emphasis on the best interests of the child, rather than the focus being on the right of the father or the right of the mother.
The child’s interests are paramount in both national and international law.
The Minister for Justice, Alan Shatter, is currently in the process of making amendments and changes to the family law system in Ireland and it is intended that a Referendum to establish a new Family Court will be held in 2014. John, what changes is Alan Shatter proposing?
The new structure envisaged by Minister Shatter is a two-tier court with a lower Family Court with limited jurisdiction and a Higher Court with unlimited jurisdiction both staffed with specialist judges.
At present, our courts system does not have a dedicated family law division. The current family courts system is fragmented with the three courts — District, Circuit, and High Court — each dealing with separate family issues, ranging from maintenance applications and custody issues to child abductions.
Does the current system lead to delays and complications for delicate Family Law matters?
Court hearings are not frequent enough.
There are long waiting times, both on the day waiting for the case to be heard and if it is not heard it may be months before it is scheduled again.
One of the legal hallmarks of Irish Family Law is that there is a great deal of judicial discretion. In addition, Family Law cases present particular and special challenges which mean that a Family Law case could, potentially, require a Court to make a wide of range of decisions about children, maintenance, family assets and finance, occupation of the family home, and so on.
Family Law cases may be psychologically complex, requiring family assessment by social workers, psychiatrists or psychologists, particularly where there are children involved.
Cases can also be financially complex, especially in what have come to be known as “ample resources” or “big money” divorce cases where the assets (financial and property) may involve millions of euro and where pension splitting may also be in question.
In the current system are there judges who specialise in Family Law and is this likely to change?
Currently, a Judge can, without any further training or prior experience, deal with a criminal case, a road traffic accident case, or a family law case.
This can be a serious problem in Family law cases, particularly as children are involved, which require a very high degree of understanding, empathy, sensitivity and delicacy.
Under the new proposals Judges with a specialisation in family law will preside over all proceedings.
This is a very important and welcome development. It is important that the judiciary have special skills, so when individuals go to family court, they know there’s going to be a degree of consistency of approach.
What courts usually deal with Family Law cases?
Under the current system, family law cases generally come before the District Court in the first instance. Family cases are usually left until the end of the court list, to give those concerned as much privacy as possible. However, as a result families can be left waiting in the courthouse as prisoners and other criminals are ushered in and out, which is not ideal as family law matters are sensitive.
Minister Shatter hopes that the new system “should be more user friendly and should make things less costly” with specialist Judges and specialist Courts. It is hoped that the new regime will be a less intimidating and a more welcoming environment for families in personal difficulties.
We, at Lynch Solicitors, specialise in all areas of Family Law including Custody, Access and Guardianship, Domestic Violence applications, Maintenance for spouses and children, Judicial Separation, Separation Agreements, Divorce, Pensions, Recognition of Foreign Divorces and applications for annulment.
John M. Lynch heads up the Family Law and Childcare Department of Lynch Solicitors, having developed a special interest in this area over the years. John’s knowledge and use of Mediation, along with the objective yet compassionate way we try to deal with every case at Lynch Solicitors, have helped our clients in this delicate area.
