Court must keep control of voice-of-child process

A pilot service will give children a “structured, safe opportunity” to express their views in family-law proceedings.

The service will dovetail with new Judicial Guidelines on how expert reports are commissioned and prepared, the Law Society Family and Child Law Conference (25 September) has heard.

Opening the conference, Siún Hurley, chair of the Family and Child Law Committee, which organised the event, described this area of law as “critical and rapidly evolving”.

“The landscape is shifting beneath our feet,” the solicitor at O’Donovan, Murphy & Partners LLP, Bantry, Co Cork said.

Constitutional imperative ignored

Speaking at the annual conference held in Blackhall Place, Hurley welcomed the Children’s Court Advocate Pilot Service saying: “The voice of the child is a constitutional imperative since 2015 that has by and large been ignored."

Nicola McCarthy and Claire O'Connor of Childhood Matters explained that the Children’s Court Advocate Pilot Service was designed to give children accessible information and emotional support and would “ensure that the child's own views, verbatim, reach the decision maker.”

Childhood Matters will deliver the service, which is funded by the Department of Justice, Home Affairs and Migration and is expected to begin within the next few weeks.

It will be available free of charge to children aged from 5 to 18 in the pilot area of Waterford and Clonmel.

It will initially operate in District Court applications involving access, custody, and guardianship, with a Circuit Court phase planned during the three-year pilot.

The advocate does not carry out a best-interests assessment, investigate the family, make recommendations, or represent any party.

The report is intended to communicate the child’s views rather than turn them into an assessment by a professional.

Where appropriate, the child may also be supported to meet the judge, while the advocate can provide feedback to the child afterwards.

Consent of parents

Consent of both parents, or guardians, is required, except where there is a court order in place.

Advocates will meet the child in a safe, neutral setting, explain the court process in age-appropriate language and provide an opportunity to express their views.

“We then submit a structured report outlining the child's expressed views to the court,” Claire O’Connor explained.

She added: “And we screen for and respond to any domestic, sexual, gender-based violence and safeguarding concerns.”

Caveats to this include if there are concerns that a child is being coached or if the advocate believes that a full section 32 assessment is required.

Uncertainty remains about the disclosure of the child’s views to parents but, ultimately, the report is a matter for the court and decisions about its release rest with the judge.

The pilot will be assessed by the University of Limerick.

In his overview of section 32 reports, Donagh McGowan (Donagh McGowan & Co Solicitors) described the new Judicial Guidelines as “an absolute game-changer”.

McGowan, a former chair and long-standing member of the Family and Child Law Committee, has worked extensively on matters pertaining to voice of the child and S32 report guidelines.

Detailed information

He said the guidelines required considerably more preparation from practitioners, including detailed information about prospective assessors and the issues the report was intended to address.

Under the guidelines, the applicant on the motion to appoint an expert should provide details of three assessors, including their CVs, estimated costs, and availability.

As the requirement for three assessors is new, McGowan recommended that practitioners had details of assessors “pre-packaged”.

He further advised that practitioners must exercise extreme caution in the “slightly dangerous area” of preliminary inquiries with assessors, “because obviously they cannot know anything about the case” before appointment.

McDonagh stressed the importance of defining the issues to be assessed by an expert and advised practitioners to read appendix 3.2 in the report.

Rather than simply identifying a dispute about access or custody, lawyers should establish their client’s specific concerns, how those concerns affect the children and, consequently, what questions the assessor is being asked to address.

McGowan said there was no particularly new guidance in relation to when expert reports should be ordered.

Used wrongly in routine access disputes

McGowan questioned whether full section 32 welfare assessments were now being commissioned too readily in routine access disputes, and whether there was a risk of courts becoming overly reliant on reports rather than making straightforward decisions themselves.

He also questioned whether courts were sufficiently robust in challenging recommendations where there were clear reasons to do so.

However, he welcomed the guidelines’ greater emphasis on the court maintaining oversight of the process.

Orders should include a timeframe for completion and a mention date, so that matters do not simply drift if a report is delayed.

In addition, in his review of recent case law, Gerard Durcan SC highlighted two cases that made findings involving section 32 reports.

In AC v DC, Mr Justice Oisín Quinn found that a court could make interim care/access arrangements without having a formal section 32 report, as information about a child's views could come through other routes.

The second was a judicial review by Mr Justice Simons, in which Durkan highlighted one of the reasons for quashing a decision of the District Court.

Mr Justice Simons was satisfied that the District Court had failed to comply with the requirement to ascertain and give due weight to the child's contemporary views before making the access order.

Durkan stressed the importance of the word, “contemporary” because, although there was a section 32 report, it was out of date, “and he was saying you can't operate on out-of-date information”.

The barrister also noted that Justice Simons said: “The District judge had had too much deference to the views of the assessor in the particular case, and that it was almost as if she had become a co-decision maker in the matter.”

This, he concluded, was "an important judgment about how children's views should be taken into account”.