Listening to the ‘Views of the Child’ in Family Law proceedings
The concept of listening to the views of children in legal proceedings that concern them is not an entirely new concept in Irish Law. Irish courts have had discretion to listen to the views of the child since 1991 (Child Care Act 1991, Section 24(b)) and the ‘Right of The Child to Be Heard’ has been recognised in international law since 1989 (United Nations Convention on the Rights of the Child, Article 12). However, in April 2015, Article 42A was inserted into the Irish Constitution. Article 42A focuses on the rights of children. It is sufficient, for our purposes, to focus on Article 42A.4. Article 42A.4.2 requires provision to be made by law, to allow children, capable of forming views, to express those views in certain proceedings concerning them (Custody, Guardianship, Access, Adoption, and Care Proceedings). Those views are then to be given due weight having regard to the age and maturity of the child. Thus, what was once a statutory discretion of the court is now a constitutional right of the child. This constitutional status is hugely important and the goal of this piece is to shed some light on this new constitutional right of the child by answering the following questions:
· Legally speaking, where does the ‘right of the child to be heard’ come from?
· What exactly does ‘listening to the views of the child’ mean? Isn’t such a process possibly upsetting for the child?
· How are the views of the child ascertained in practice?
· Why should we listen to the views of children?
Legally speaking, where does the ‘right of the child to be heard’ come from?
As noted above, the right of the child to be heard in all matters concerning them was first recognised in international law in Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) in 1989. The UNCRC was signed by Ireland in 1990 and ratified in 1992.
Article 12 of the UNCRC was given effect to in care proceedings by Section 24(b) of the Child Care Act 1991 (1991 Act), which states:
“In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall:
(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child”
The 1991 Act governs how and when the State can take a child into its care. Thus, the courts have had a statutory discretion to listen to the views of children involved in care proceedings since 1991.
The Guardianship of Infants Act 1964 (1964 Act) covers issues such as Guardianship, Custody and Access. Section 25 of the 1964 Act, as inserted by s.11 of the Children Act 1997, states that in any proceedings to which the Act applies “the court shall, as it thinks appropriate and practicable having regard to the age and understanding of the child, take into account the child’s wishes in the matter”. Therefore, Irish courts have been able to listen to the child’s wishes during proceedings involving guardianship, custody and access since 1997.
The right was elevated to constitutional status in 2015 with the insertion of Article 42A into the Irish Constitution. Article 42A.4.2 states:
“Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child”
The proceedings referred to in subsection 1⁰ are: adoption, guardianship, custody and/or access proceedings and care proceedings brought by the State.
The right of the child to express their views is firmly entrenched in Irish law, even claiming a spot in the Constitution, the highest law in the land; but what do we mean when we speak of a child’s right to express their views?
What exactly does ‘listening to the views of the child’ mean? Isn’t such a process possibly upsetting for the child?
Many parents express concerns about the possible negative impact that being involved in court proceedings can have on a child. These concerns are quite reasonable. After all, the courtroom can be a hostile and intimidating environment even for adults. This is especially so during emotionally charged proceedings such as divorce or care proceedings. In my experience, common concerns include: a fear that the child will feel pressured to pick sides, a fear that the child will feel like it is up to them to decide the issue, or a fear that the general court setting simply isn’t suitable for young children. In order to possibly answer some of these concerns it will help to outline a few key features of Irish law on the issue.
1) It is a right not an obligation:
This simply means that the right to have their views listened to and considered is a right of the child and not an obligation upon them. If the child wishes to make their views known, then the court, as far as practicable, must ascertain those views and give them due consideration having regard to the age and maturity of the child. However, if the child does not wish to give their views, then the court (or anybody else) cannot force them to do so. In short it is the child’s choice and this should be made clear to the child. The law places no expectations upon the child but simply allows them to express their views if they wish to do so.
2) The views of the child will be considered, having regard to their age and maturity, but their views can’t be determinative:
The views of the child once ascertained will be considered having regard to their age and maturity. Thus, an older child’s views will be given more weight than a younger child’s. The level of understanding, intelligence and general maturity of the child will also be considered. While a judge is bound to consider the child’s views, the ultimate decision remains with the judge at all times. The child is not being asked to make the ultimate decision. Quite often the child will be warned, in an age appropriate manner, that the decision might not accord with their wishes at all.
3) Children who wish to express their views do not have to do so in open court.
Courtrooms can be an intimidating setting for children. Thankfully there exist a number of mechanisms (considered below) that allow children to express their views otherwise than in the courtroom. When children do go to court the process is made as informal as possible.
How are the views of the child ascertained in practice?
It is of course possible for the child to express their views to the court directly. However, for many children this will not be a viable option. In such instances there are more indirect measures in place through which children can make themselves heard.
In proceedings involving guardianship, custody, and/or access s.47 of the Family Law Act 1995 allows the court to procure a written expert report “on any question affecting the welfare of a party to the proceedings or any other person to whom they relate . . .” . Similarly, in Care proceedings s.27 of the 1991 Act empowers the court to procure an expert report on “any question affecting the welfare of the child”. These reports can inform the court of the child’s wishes and preferences on the matter without the need for the child to actually go to court. At present this is the most commonly used method for ascertaining the views of the child.
In Care Proceedings under the 1991 Act, the court can appoint a ‘Guardian Ad Litem’ (GAL) (see s.26 of the 1991 Act). The GAL will typically be a person with social work experience and/or expertise in working with children. The function of the GAL is to build a rapport with the child out of court and then to present the child’s views to the court.
Section 25 of the 1991 Act empowers the court to join the child as a party to proceedings and have him/her represented by a solicitor. The solicitor will take instruction from the child and represent their interests/wishes during proceedings. It should be noted that, under s.25, the child need not attend court unless they wish to do so. In my experience, this option is rarely invoked by the courts.
In order to ascertain the views of the child some judges will conduct an informal ‘interview’ with the child. This ‘interview’ usually takes the form of an informal discussion with the child in the judge’s chambers. By taking on the form of a casual chat the judicial ‘interview’ can help the child express themselves in a more natural relaxed setting. This option is rarely used compared to the other more formal measures available.
Feedback I have received from working with child psychologists, and indeed children themselves, is that children like to have an input into issues concerning them but they do not want to go to court. As such, measures such as these that allow children to express themselves through third parties, or informally to the judge, are invaluable.
Why should we listen to the views of children in Family Law proceedings?
We have outlined where the right of the child comes from, what it entails, and how it operates in practice but perhaps one of the most pressing questions is: why? Why should we listen to the views of the child?
We, as adults, take it for granted that we will have an input into any big decisions that will affect our lives. We would perceive it as a great injustice if a court of law were to make a decision directly impacting on us without first giving us an opportunity to express our views on the matter. How, then, could it be just to make life altering decisions on issues such as custody, access, care without first giving the person most affected an opportunity to give their views on the matter?
We here at BDM Boylan have years of cumulative experience dealing with Family Law matters. If you need help or guidance with any issue please do not hesitate to make contact. Our team of Solicitors would be more than happy to help.
David Browne – Partner
BDM Boylan Solicitors
dbrowne@bdmboylan.ie
021 - 4313333