The State is not in compliance with its constitutional obligation to ensure that the voices of children are heard in court cases concerning them, the Oireachtas Joint Committee on Justice and Equality has heard.
The committee heard from legal experts and children’s rights advocates on Wednesday as part of its examination of reform of the family law system.
In a written submission, Dr Conor O'Mahony, senior lecturer at the School of Law in University College Cork, said the constitutional obligation imposed by Article 42A of the Constitution to ascertain the views of all children capable of forming their own views was "not currently reflected in the vast majority of our child and family law legislation".
Dr O’Mahony said reform was required “across the wide spectrum of family law cases”. He said a “significant obstacle” to the participation of children was the lack of child-friendliness in Irish courts.
Article 42A was inserted into the Constitution on foot of a referendum on November 10th, 2012.
It states that provision “shall be made by law” for ensuring that the views of any child who is capable of forming his or her own views shall be ascertained and given due weight having regard to the age and maturity of the child.
Dr O’Mahony noted in his submission that the State was a party to several international human rights law Conventions requiring that children should have the opportunity to express their views in court proceedings affecting them.
This was most clearly stated in Article 12 of the United Nations Convention on the Rights of the Child and, increasingly, being read into Article 8 of the European Convention on Human Rights (1950).
He said Article 42A, as inserted into the Constitution, was “not self-executing” and that its implementation was dependent on legislation passed by the Oireachtas.
“Unfortunately, since the amendment came into effect in 2015, the response of the Oireachtas has been rather timid; I would argue that as things stand, the State is not in compliance with its constitutional obligations,” Dr O’Mahony’s submission said.
Legislative reform, while a necessary step, was also not sufficient to ensure effective child participation, it noted.
What is to be done?
Keith Walsh, chairman of the family and child law committee of the Law Society of Ireland, told the committee the family law system is "broken". He noted the situation is particularly bad in Dublin as regards premises for the childcare courts, which are housed in Victorian criminal courts "not fit for purpose".
He said no resources had been provided to pay the experts required to complete the “voice of the child” reports required under 2015 legislation.
Helen Coughlan, also a member of the Law Society committee, said there were "very serious issues" in terms of access to justice in family cases because of delays and waiting lists to see a solicitor.
Dr Cliona Saidléar, executive director of the Rape Crisis Network Ireland, called for the establishment of a specialist family court, for transparency and accountability for the child protection system, including the family law system, and for the development of a national strategy on child sexual violence.
Dr Saidléar recommended that the Courts Service should gather and publish figures on how many private family law cases involved allegations of child sexual violence.
In a submission, the Children’s Rights Alliance recommended that in reforming the family law system, a priority should be making available suitable accommodation for children and young people in the courts.
It said a key aspect of this would be the development of the dedicated children and family courts at Hammond Lane in Dublin.
