Men and children are the losers in the family courts

Wealth of data

What sets this research apart is the volume of cases analysed and the wealth of empirical data it contains. It amounts to by far the most extensive and detailed study undertaken of the Irish family court system.

O’Shea describes an opaque and costly system, with poor outcomes for children and fathers. A primary objective of her research was to determine the basis – if any – of judicial decisions, and to identify any patterns. She discovered a total absence of consistency.

She also conducted interviews with judges who hear family law cases. Most indicated an intense dislike for the emotional context of family law, and said they found disputes over arrangements for children difficult and sometimes distasteful. Her findings indicate a staggering ignorance of the emotional and psychological dynamics of relationship breakdown, and an absence of judicial training.

The operation of the in camera rule and the isolation of judges ensure each judge develops a highly subjective approach, the interpretation of which becomes virtually the sole function of family law practitioners. Hence, the prejudices and foibles of particular judges dictate not only the outcomes but also how cases are presented in court.

Legal fiction

Judges appeared to see access orders as having more to do with keeping warring parents apart than addressing the needs of children. “Joint custody” is a legal fiction designed to camouflage the reality. In 95 per cent of “joint custody” cases observed by O’Shea, mothers ended up in effect the sole carer, and “access” orders severely restricted the role of the non- resident parent. Frequently, in cases where children resided with their mothers, schools refused to communicate with the “joint custodian” father. Day-to-day care was shared in just 1 per cent of such cases. Where sole custody was ordered, it was usually to the mother.

Where access was unilaterally withheld, it was invariably by mothers, who appeared to regard children as their personal property. By and large, this perspective was tacitly endorsed by the courts. No judge implemented any sanction against such behaviour, even when court orders were repeatedly breached.

Read more in the Irish Times.

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