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Care crux for child witnesses to family homicide

26 Nov 2021 / family law Print

Care crux for children who witness domestic homicide

Cases of domestic homicide, where a child’s parent has been killed by another parent, are exceptionally challenging, in that the surviving parent remains the legal guardian, the directors of the Child Care Law Reporting Project (CCLRP) has said (24 November). 

CCLRP attended four cases recently where the mother was allegedly killed or very seriously injured by the father of the child. 

The children are then taken into care while the father or mother awaits trial.

In such cases, the surviving parent can seek access, even though that decision lies with the court.

Traumatising

“Such an event – seeing a parent killed by the other parent – makes this unimaginably traumatising for the child,” said Dr Carol Coulter of the CCLRP.

Such children are in urgent need of therapeutic support, but their care status needs to be finalised before this can happen, and it may await the outcome of a criminal trial. 

The families of the victims have no rights in relation to the child, and cannot attend child-protection proceedings, or apply for guardianship of the child, because this can only be sought where they have been caring for the child for at least 12 months, Dr Coulter explained.

“We are recommending, in these situations, that there should be an amendment to the Child and Family Relationships Act to permit an application for guardianship to be made by a relative of a child, without having to satisfy the current conditions,” Dr Coulter said.

Bereaved relatives should also be permitted to apply to be notice parties in any childcare proceedings, she added.

CCLRP attended over 400 child-law proceedings in both the District and High Court in the three-year period to May 2021, and published individual case reports in seven volumes, deputy director Maria Corbett said at the body’s Ripe for Reform’ report launch (24 November).

Some especially challenging cases could not be published as individual reports, because of the fear of identification.

The CCLRP reporters found much consistency in the District Court; and care-order applications brought by the child and family agency were usually granted.

Most respondents are the parents of children involved. They are often parenting alone, and are disproportionately drawn from ethnic minorities, Corbett said.

Dr Coulter pointed out that there was an obvious need for further research on the disproportionate representation of ethnic minorities in child-protection proceedings, and to examine international best practice in dealing with children and young people with very complex needs.

Most children are living in foster care and often have significant therapeutic and special needs, Corbett said.

Absent

A significant number of children have either one or both parents deceased or absent from their lives, due to addiction, mental-health issues, imprisonment, or death – including suicide and violent death.

The child often presents with emotional, behavioural, or mental-health difficulties. Some may have no responsible adult in their life that can take care of them, and this includes separated children, or children who have been orphaned or abandoned. 

The lack of a unified or separate child and family court, and the fact that the District Court is divided into 24 regions, presents difficulties – despite the best efforts of the judiciary and legal professionals.

“It can be difficult to have overarching practices … and practice varies between the districts,” said Corbett.

Some of these cases are “extraordinarily complex”, particularly those involving allegations of sexual abuse and inter-jurisdictional issues, she added.

Where there is a delay in securing a hearing, children often remain in care under extension of interim orders, creating concerns from a legal perspective under articles 6 and 8 of the European Convention on Human Rights, she said. 

Delays shift the momentum towards a child remaining in care, Dr Coulter pointed out. 

Given all these circumstances, CCLRP is calling for a unified family court, which has been on the agenda since the 1970s.

Urgency

“We're hoping that this report will provide more evidence for why we need that family court to be progressed with a sense of urgency.

“The new court has the potential to transform the experience of those children and their families, and professionals working in this area,” Dr Coulter said.

The CCLRP believes that the new family court would have the judicial continuity of one child being dealt with by one judge, and would have a mechanism for commissioning assessments and expert reports.

A court support office would oversee the appointment of guardians ad litem, mediators, and advocates, 

Dedicated addiction services could add huge value to family services, Dr Coulter said.

“The role of the court is quite weak in Ireland in the area of childcare proceedings,” she said.

“We would like to see … a judge initiate proceedings on their own motion, to potentially deny the withdrawal of proceedings, and to be able to substitute a different order than that sought by the Child and Family Agency, in certain exceptional circumstances,” Corbett said.

A tiny proportion of children in care have highly complex care needs, but they take up an extraordinary amount of court time, those attending the launch were told.

Personality disorders

The legal circumstances of these children need clarification, because step-down care accommodation is in short supply as they reach 18.

Often the children will have emerging personality disorders, including autism, addictions, and learning difficulties, Corbett added. 

CCLRP director Dr Coulter said that children experiencing mental-health issues might end up admitted to care, or made a ward of court, because of a lack of mental-health services.

“We don’t want to see children going into care because of a lack of timely and appropriate mental-health services,” Dr Coulter said. 

While some youngsters may not meet the threshold for special secure care, they still need intensive therapeutic support in a residential setting.

Mental distress

COVID is likely to produce even greater levels of mental distress, Dr Coulter said.

She pointed to courts in other jurisdictions, where the issue of child protection is linked with services for those suffering from addictions, as part of dealing with the problems within the family.

These models have proven successful in other jurisdictions, by reducing the number of children in care, promoting family reunification, and giving parents a clear opportunity to address addictions.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland