David’s gruelling journey with his daughter Kate through the family law system over some three years has cost him more than €118,000 but he says the mental toll on both is even worse.
Their names have been changed to protect their identities, as is required under family law.
Their story exposes some of the problems in a system that often puts families already coping with the pressure of marital break-ups under even greater strain. In David’s view, it’s a system in dire need of reform.
Looking back, one of David’s lowest moments over those three years was seeing a tearful Kate reluctantly surrender her cat to a new owner because they were moving between B&B accommodation for a time until he found a house near a particular location to comply with a court order, he says.
David has joint custody of Kate, now in her early teens, who, in line with the recommendations of a child psychologist, now lives most of the time with him.
After his relationship with her mother ended some years ago, both parents agreed on joint custody, guardianship and access, with Kate living mainly with her mother.
That changed some years later after Kate, who had voiced reluctance on some previous occasions to return to her mother after weekend access with David, made a complaint to a third party concerning her mother. She denied the complaint. The third party involved Tusla, the State’s child and family agency, and David was asked to take primary care of Kate while Tusla looked into the situation.
Family law proceedings were initiated which ran for some three years, during which time issues were addressed to Tusla’s satisfaction.
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Both parents continue to have joint custody; David is the primary carer and arrangements for Kate’s access to her mother are in place.
The proceedings were before various courts several times with Kate’s mother representing herself in the later stages.
David believes he, as a father trying to support and do his best for his child, has had to engage in “unnecessarily protracted” legal procedures to the detriment of his mental health and finances.
He is self-employed and says his business almost went under during the Covid-19 pandemic. Now “just about surviving”, he says his savings and loans have all gone to pay legal bills.
“Trying to manage the court cases and hold down a job is a nightmare,” he says. “I was talking to a woman in the family courts who had to sell her house to pay the bills. It costs €11,000 for one day in the High Court. Who has that kind of money for one day?”
There is a constant temptation to wind up his business because that would make him eligible for free legal aid but he clings on for reasons including the day-to-day structure his work provides, he says.
Kate is doing well now and play therapy, which he pays for, seems to have a beneficial effect, he says.
There are times he feels very isolated but he is very appreciative of support from friends, family, other parents, teachers and a family support worker.
He welcomes the pledge by Minister for Justice Helen McEntee, through the Family Justice Strategy 2022-25 and the Family Courts Bill 2022 providing for a purpose-built family courts complex, to ensure a more efficient and user-friendly family court system putting the family and children centre stage.
Reform, David argues, must lead to a system that is non-adversarial, with emphasis on mediation, and which “should never have court as an opening”.
The adversarial process sees parents “pitted against each other” and the child “is often forgotten”, he says.
He is particularly frustrated by cases being regularly listed “for mention”, involving parties coming to court for a mention that may last between one and 10 minutes, he says.
His experience is cases can be in court for periods of between 18 months and five years at an annual cost between €50,000 to €60,000 to the parent supporting the child and employing a solicitor.
The parent providing the primary care may, as he did, have to move home and employment for a time to facilitate their child’s schooling and access, he says. That imposed significant costs of some €20,000 “and further re-traumatises the child”, he says.
If a parent appeals a lower court order to the High Court, that process “once again takes away from hearing the child, often for long periods”, he says. The law provides that a child aged eight and over can access the court and children who wish to be heard by a judge should be heard, he believes.
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A reformed process, he says, should start with the positions of each parent and the child being heard by a multidisciplinary team comprising a social worker, clinical child psychologist, family support worker and a psychologist or play therapist, with a view to making initial recommendations based on child reporting and protection. That could be followed by a court hearing to ensure legal effect for recommendations to support the child, he says.
“The hardest thing is the lack of follow-up. My child hasn’t seen a social worker for a year. The social work and family resource services are overstretched and unable to cope. All of this means my child has no support other than what I have put in place and am paying for,” he says.
A report from a child psychologist costs €2,400 and every time the case comes back to court, an update costs another €200, while a review for court will cost €5,000, he says. He has incurred a legal costs bill of some €90,000 to date with “no end in sight”.
David is also responsible for accessing and paying for updated reports from his daughter’s school and GP and logging any incident that causes her distress.
He wants a system where a support worker would be appointed to attend weekly on each parent, a requirement for mandatory attendance by parents at parenting courses and for parents to attend a therapist concerning any relevant mental health issues.
The child should attend a play therapist regularly to ensure they can talk and act out their feelings in a safe environment and the therapist should report to each of the review meetings, he says.
Muriel Walls, an experienced family law solicitor, said David’s account reflects elements of some other cases over years of which she is aware.
David and his ex-wife started off “in the best way” with joint parenting and joint custody and that worked well for some years until Kate’s concerns led to the proceedings, she said.
David’s experience of the process seems a bit longer than others but matters can get more complicated when Tusla gets involved, says Walls.
“Even if parents come to an agreement, Tusla, as a statutory agency, has its own remit with its own demands and procedures,” she says.
The lack of continuity with judges hearing cases is a source of frustration for lawyers as well as clients, Walls says. Different judges can be involved in making “sticking plaster” decisions to address the most pressing problem in a case on a particular day.
Noting David’s strong advocacy of mediation, she says the “whole essence” of mediation is that it is a voluntary process. David’s ideas for better process are “well made” but, to be useful, they will need to be very well resourced and the family law process is not, she says.
Solicitor Keith Walsh, another family law specialist, said his experience was family court judges are very focused on the children but in many cases parents can be focused on winning the case on their own terms rather than on the children.
The current delays in the system are a result of introducing rights for children without proper resources after the children’s rights referendum, he said. The system needs “practical, sensible” reform, including expansion of the legal aid scheme and a State-funded panel of experts to provide child welfare reports.
Under the current system, the parent pays and successive governments have been unwilling to fund the system, he said.
The Family Courts Bill should be implemented immediately but without the proposed transfer of divorce and judicial separation cases to the District Court which would result in more delays, he said.
“The District Courts simply do not have the resources to cope with all the cases before it at the moment and cases like David’s are falling between the cracks. This increases his legal costs and creates very serious issues for his child whose future is put on hold pending the outcome of their court case. This is not acceptable,” said Walsh.
“The real problem is where two parents cannot agree and cannot mediate, then it is up to a court to decide. We in the family justice system need to work together to ensure that this decision is reached as quickly as possible but the rights of both parents are respected in the process and the best interests of the children are paramount.”
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