New EU regulations on family law will give children an unprecedented right to speak in court proceedings which affect them, a legal conference in Dublin heard at the weekend.
Mr Geoffrey Shannon, a solicitor and lecturer in family law at the Law Society, said the regulations, to come into force in full next March, would bring about fundamental changes in how trans-national custody battles and child abduction cases are dealt with.
The regulations, know as "Revised Brussels II", are aimed at further standardising the rules regarding the handling of divorce, legal separation and annulment proceedings in the enlarged EU.
Mr Shannon told the Irish Centre for European Law conference that the granting of a general right for the child to be heard in family law proceedings was "a welcome departure from the invisibility of children in the current regulation".
He said recent research in Ireland highlighted "the absence of an automatic right for the child to be heard in private law proceedings".
Concerns about whether children would be traumatised by giving evidence, or whether they would be able to give a coherent account of their views, were "no doubt genuine and worthy. The inevitable result, however, is that the child is often effectively silenced in such proceedings, perhaps to the detriment of his or her ultimate welfare.
"The right of children to be heard can no longer be sidelined," Mr Shannon said.
The regulations also establish new rules regarding jurisdiction in trans-national family law cases, giving priority in certain proceedings to the child's habitual residence, rather than a parent's residence, at the time documents are served.
Mr Shannon noted there were "a very limited number of defences" to automatic recognition of foreign divorce, separation and parental responsibility judgements. However, "a court in one member-state shall not recognise any decision that is 'manifestly contrary to the public policy' of the member-state.
"Such a conflict must be extremely profound in order to justify refusal. It is not sufficient, for instance, simply to state that the decision is one that the courts of Ireland, for example, could not make or would not have made. Nor is it sufficient to refuse recognition on the grounds of legislative differences alone."
Addressing the same topic, Prof William Binchy of Trinity College Dublin said that under the new regulations, "even judgements based on fraudulent assertions as to jurisdiction have to be recognised. The thrust of the regulation is to facilitate the recognition of divorces throughout the Community."
