A SUBMISSION BY THE CHILDREN'S LAW CENTRE ON

"DIVORCE IN NORTHERN IRELAND: A BETTER WAY FORWARD"

The Children's Law Centre is founded on the principles enshrined in the UN Convention on the Rights of the Child, to which the Government is a signatory. It is on this basis that the following comments are made in relation to the recent Government proposals outlined in "Divorce in Northern Ireland: A Better Way Forward". In particular, attention is drawn to Articles 3 and 12 of The UN Convention On The Rights of The Child.

Article 3 states that in all actions and decisions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 12 states that the child who is capable of forming his or her own views has a right to express those views freely in all matters affecting that child, specifically including judicial and administrative proceedings, through a representative where appropriate.

Article 9 states that a child should not be separated from parents against his or her will, except when competent authorities subject to judicial review determine in accordance with applicable law and procedures that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or where one of the parents are living separately and a decision must be made as to the child's place of residence. The article goes on to state that all interested parties should have an opportunity of participating in such proceedings and that the State should respect the right of the child who is separated from one or both of his / her parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

INTRODUCTION

"Facing the Future: a Discussion Paper on the Ground for Divorce" (HMSO 1988) was published by the Law Commission in England prior to the passing of the Family Law Act 1996. This report made the point that the current system for divorce in England was too 'adult-centred'. There was a need for the law in this area to reflect the fact that divorce was not only concerned with the ending of a marriage, but also with the breaking up of a family, which often included children. The Law Commission thought it desirable that new procedures for divorce made provision for this fact.

If this was true of the legal provision in England, it is also surely true of the current divorce procedures in Northern Ireland. At present, there is a surprising lack of consideration for children in the divorce procedure, perhaps highlighted by the abandonment of the compulsory Social Welfare Report (Art 44 Matrimonial Causes (NI) Order 1978 as amended by the Children (NI) Order 1995). It is true that practitioners and social workers alike viewed this procedure as often no more than a "form-filling exercise" which in practice rarely gave children a true voice in court (Divorce in Northern Ireland: Unravelling the System, HMSO 1999). However, social workers also commented that this was the only place where it was possible "for the child's voice to be heard.when the child's wishes differed from the arrangements in place".

The Family Proceedings Rules (NI) 1196 Form M4 still requires that the judge be presented with a 'Statement of Arrangements', which must satisfy him that adequate arrangements have been made regarding any children of the marriage. This is a prerequisite to the final granting of the decree nisi. However there is no requirement that the views or feelings of the child should be included, and the Statement of Arrangements is rarely more than a statement of facts in practice.

Therefore the present divorce procedure in Northern Ireland lacks any form of independent check or safeguard to ensure the views and feelings of children are noted. Nor is there any requirement that children should be informed about what is happening. Children do not have a voice.

SUMMARY OF THE GOVERNMENT PROPOSALS IN THIS AREA

In "Divorce in Northern Ireland: A Better Way Forward", in terms of relevancy to children, the Government proposes the following main procedural reforms of divorce law in Northern Ireland:

1. INFORMATION to be available on family breakdown, to enable a better understanding of the process and to provide a gateway to "legal and non-legal services to those who need them". (P 86)
2. MEDIATION to be improved and encouraged, as something which the Government recognises as "playing a valuable role in resolving family disputes". (P 86)
3. GUARDIAN AD LITEM service to be extended to private law proceedings in cases where mediation fails and parents cannot come to their own agreement as to arrangements for children. (P 73)

At the outset, the Government states that the "promotion of the best interests of children on the breakdown of the parental relationship" is an objective worth stating (P 12).

THE FUTURE FOR CHILDREN OF DIVORCING PARENTS

The Children's Law Centre would certainly support many of the Government proposals as potentially protecting children's rights.

Information about the divorce process would be invaluable to children who seem to be most harmed in divorce situations when there is little communication and explanation as to what is happening ("Divorce and Separation; The Outcome for Children", Rogers and Pryor 1998 Joseph Rowntree Foundation). Such information should be reproduced for children and young people in a format which is accessible and easy to understand.

The Children's Law Centre has received funding for a freephone advice line for children and young people and would be happy to assist in the development of "child friendly" information services.

Increased reliance on Mediation is also to be welcomed, as a chance to encourage parents to take children's views into account (as is done automatically in some jurisdictions, for example Australia). Mediation might also be looked upon as a more appropriate forum for children to voice their views to someone with specialised training. However the status of the information given to the mediator would have to be carefully clarified, i.e. in the event of a breakdown in negotiations can the mediator present the child's views to court or does the court have to appoint a further independent person such as a Guardian Ad Litem to present the child's views to court?

The provision of the Guardian ad Litem in court proceedings is a very positive suggestion. This might be compared to the Court Welfare Officer provision in English divorce proceedings, where an independent social worker can be ordered to report to the court on the children in contentious proceedings. The English system will be discussed briefly below, however if it allows potential for the voice of children to be heard, then this potential would be much greater with the introduction of the possibility of a Guardian ad Litem in private law proceedings concerning children.

WHY SHOULD CHILDREN BE GIVEN EXPLANATIONS AND HAVE A VOICE IN DIVORCE PROCEEDINGS?

It is noted that direct involvement in parental conflict is almost universally acknowledged as having adverse effects on children ("Divorcing Children; Roles for the Parents and the State", Richards, A Reader in Family Law ,1994, Mc Lean & Eekelaar ). Nowhere in this paper is it suggested that children should participate in the divorce process for the purpose of helping the parties resolve their disagreements. However, participation when taken in the context of focusing on children's feelings and needs and informing them as to what is going on is to be advocated for the following reasons:

• As signatories to the UN Convention on the Rights of the Child, we have an obligation to protect the right of a child to have his or her voice heard.

• Research has shown that communication in terms of listening to the view of children and explaining what is happening reduces the negative impacts of the experience of parental divorce on children ("Divorce and Separation: the Outcomes for Children", Rogers and Pryor). This means that even if children are considered too young to be able to make decisions here, there is still value in placing focus on their rights.

• Research has shown that parents find it hard to see things from a child's point of view in this situation. This is partly because of general misapprehensions as to how children view the family unit (Richards), but also because the stress at the time makes if difficult for parents to be objective ("Divorce in Northern Ireland: Unravelling the System" P 166).

• In connection with the above point, research has pointed to the irony that in this situation where the protection of children's rights is very much left to parents by a state wishing to be non-interventionalist, this is the very time that parents are focusing on their own needs. This makes it difficult for them to pay full attention to the needs and indeed the rights of their children ("Divorce and Separation: The Outcomes for Children", Rogers and Pryor).

• Research has shown that where parties come to their own agreements about arrangements, the arrangements themselves are more likely to be successful ("Divorce in Northern Ireland: A Better Way Forward" P 33). It is suggested that one might conclude from this that if children were able to take a part in formulating the arrangements concerning their welfare, this might be another factor adding to the success of arrangements negotiated in this way.

DOES CURRENT ENGLISH DIVORCE LEGISLATION PROTECT THE RIGHT OF CHILDREN?

The Government reformed English divorce procedures with the passing of the Family Law Act 1996, although Part II of this act which specifically deals with divorce is yet to be implemented. The Government experienced some difficulty in this exercise with regard to protecting the rights of children. This was primarily because the Children Act 1989 was based on the principle of non-intervention of the state, with the belief at the time being that parents were in the best position to ensure that the best interests of children were being protected. Hence there was much weight for the argument that parents should be left to sort out the arrangements for children following divorce.

However, many children's charities were campaigning at the same time for protection to be afforded to children's rights in the new divorce legislation. The compromise that the Government came up with was s.11 of the Family Law Act 1996. This states that where there are children concerned, before granting a divorce the court is under an obligation to consider whether it should be exercising any of its powers under the Children Act 1989, for example those dealing with residence or contact orders. When doing so, s.11 specifically states that the court should "have particular regard, on the evidence before it, to: (a) the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those feelings were expressed".

The court may wish to use the facility of the Court Welfare Officer. The role of this officer is twofold. First, he or she will meet the parties concerned and clarify any issues of dispute. The officer may then mediate where the parties agree to this. In such a situation, the Welfare Officer must encourage the parties to consider the views and feelings of children involved. If mediation has not taken place, the Court Welfare Officer may be requested by the court to provide a Welfare Report on any children involved. In this report, the officer is the "eyes and the ears of the judge" ("Children and Divorce", Wilkinson), and is required to provide an impartial report as to what is best for the child. A recommendation regarding arrangements is sometimes made.

The situation in England therefore is as follows:

• The court has complete discretion as to whether to involve the Court Welfare Officer or not. So even though this may be a situation where the views and wishes of a child may be heard, this is not at all guaranteed.

• S.11 of the Family Law Act 1996 requires that the court consider exercising its powers under the Children Act 1989. If it does decide to exercise its inherent jurisdiction under that act, the court must consider the wishes and feelings of the child. However as long as the court considers whether to exercise these powers, the obligation imposed by s.11 is fulfilled.

Thus even under the new divorce reforms, in England there is no guarantee that a child's right to express views is protected, despite statements that the best interests of the child are to be protected. .

SPECIFIC COMMENTS ON THE OFFICE OF LAW REFORM CONSULTATION PAPER

Not unlike the new English legislation, the current Government proposals for the reform of divorce law procedure in Northern Ireland contain statements underlining the need to respect the feelings and needs of everyone concerned including children.

A commitment to the promotion of the best interests of children on the breakdown of the parental relationship can also be seen (P 12). The objective of allowing marriages to be brought to an end "with the minimum distress to the parties and to the children effected" is also stated at the outset (P 11).

These statements are admirable, however it is suggested that we need concrete mechanisms and safeguards to ensure minimum distress to the children. Children's needs must be central in any policy discussion about divorce.

1. OUTLINE OF PROPOSED OBJECTIVES FOR THE DIVORCE SYSTEM IN NORTHERNIRELAND (P 28)

The Government suggests that a vision of "co-operation, communication and the promotion of the agreement of the parties" is one to be emphasised. This is a good vision, however it is suggested that this spirit of communication and agreement should also be extended to any children involved, and not only the parties to the divorce. Children should also be included when thinking about "mediation and other support mechanisms".

The objective to protect children and to reduce the trauma to them (point 9) is welcomed. But an objective reflecting the fact that children have positive rights in this area would be a welcome addition to the aims at the beginning. For example, point 11 states that the law should be "clear, respected and understood by those using it". This could also be re - phrased so as to include an aim that children involved should also have an understanding of the system.

2. HOW THE EXISTING LAW MEASURES UP (P 33)

The point is made that in Northern Ireland, very often by the time a divorce court becomes involved the arrangements for children have already been settled. Understandably, courts have been reluctant to disturb the status quo. However, the paper criticises the 'passivity' of the current system, and advocates the increased availability of mediation "and other help mechanisms for participative agreement, in order that parents have every opportunity to make the best arrangements possible for their children". Participation is a key word here, however it is suggested that this could be re phrased so as to allow for the inclusion of the participation of children. If the Government is suggesting that the system takes a more active stance, enabling arrangements for children to be made on advice or supervision from a mediator rather than simply developing out of a routine of necessity, then it is suggested that this might be an appropriate stage to discover the views and feelings of children.

In an ideal situation arrangements made for children should take account of their views. Although a child's wishes may not always be given effect to, our system should reflect the fact that they should at least be given the opportunity to express their wishes, as it is their right that they should be able to do so.

On P 36 the Government states that a new system for divorce should promote participative agreement as well as justice and fairness. These are worthy of promotion, however it is suggested that if justice and fairness are to be promoted, then there must be a mechanism in the new system to ensure that children's rights to have their voices heard and to be informed about the proceedings are protected.

3. OPTIONS, THE RANGE OF CHOICE (P 41)

Mediation is something that the Government is clearly seeking to promote in Northern Ireland, and research in the Government paper and beyond has shown that if a system of mediation is constructed well, it can have very positive results. The Canadian practice of operating court-connected voluntary mediation programmes might be appropriate to consider in relation to Northern Ireland, especially considering the research showing that divorce in Northern Ireland relies heavily on the Domestic Proceedings Court at an early stage of a divorce. This would also perhaps link in to support for Government proposals for specialised training for the judiciary in this area made later in their consultation paper (P 63).

The comments made on the Australian system are also interesting and of particular relevance to Northern Ireland given the statistics showing that arrangements are often made regarding children before the divorce process is started. The possibility of seeking the assistance of the counselling facilities before proceedings have commenced is an interesting one, and supported as something that might perhaps facilitate the hearing of children's views at an appropriate stage. Clearly it is desirable that the right forum for hearing the child's views is found. A court is arguably not the best forum for this, and perhaps specialist mediators would be better equipped than a judge or solicitor to make enquiries about children's feelings.

Richards points out that there are various models which a system of mediation can take, and looks specifically at the provision for mediation in New Zealand as one which places strong emphasis on the needs of children. The centre of their system is the "Family Care Conference", which includes both children and an independent advocate representing them and sometimes even members of the extended family, as well as a mediator. This is similar to the Australian idea in that there is emphasis on providing a context for decision-making before the legal system is engaged. This might be an attractive option to the Government for two reasons. First, it is more child-centred and minded of the rights of children. It would therefore answer criticisms that the present system in Northern Ireland neglects the rights of the child.  

4. PROCEDURAL REFORM - FILLING THE GAPS IN THE SYSTEM (P 54)

The introduction to this section mentions "research that many of those going through the divorce process were understandably confused", and makes significant proposals for the provision of information. This mention of "those going through the process" perhaps implies that children are being included here as being worthy targets for information provision. However in paragraph 1(a) of the introduction, it states that advice should be available "helping (parents) steer children through the experience of . divorce". It is suggested that while this may be a good idea, children also have a need for information here directly.

Pp 57 and 58 make many useful suggestions about what kind of information should be provided, and how this information should be distributed. It is suggested that the Government should also aim to provide children with information about the process and their place in it. Schools and libraries might be appropriate places to distribute such information, which might also be made available in solicitor's offices. This information would most usefully be presented in a child-friendly way. Organisations such as the Children's Law Centre would be able to provide assistance in the framing and the distribution of this information.

On P 60 the Government states the desire to increase the use of mediation as a technique for resolving disputes. It discusses the increase of information available on this service, as well as the desirability of using mediation as a way to deal with issues surrounding arrangements for children. While this is welcomed, it is suggested that there is again a lack of consideration for children's rights. Children's involvement in mediation in terms of voicing their opinion regarding arrangements for their welfare is advocated here, and it is suggested that this should be included in changes to procedures in this area.

On P 63 the Government proposes that there should be increased specialisation training for lawyers in the field of divorce law. If the Government was to provide such training, this is a welcome proposal. It would also be helpful if a comprehensive list of organisations in N. Ireland, whether statutory or voluntary, was compiled to show all the services which can be provided to help divorcing parents and to help families under stress. This list could be provided to all solicitors and barristers. Training might be given regarding dealing with children and ensuring that their rights to have their voice heard and to information are protected. This is not specifically stated however, and it is suggested that this inclusion be made.

5. SPECIFIC ISSUES RELATING TO CHILDREN APPLICATIONS (P 73)

It is only at this late point in the Government proposals that any mention is made of the danger that the voice of a child may get lost in private law proceedings. It is suggested that there is recognition of the fact that this has indeed happened in the current procedure for divorce, and is something that requires redress.

The Government has suggested that the Guardian ad Litem service might be extended to private law proceedings to ensure that children have a mouthpiece in divorce proceedings. This suggestion is welcomed as a positive way in which the rights of children could be recognised and protected.

However, the proposal seems to be confined to "contentious private law proceedings". It is suggested that even in non-contentious divorce proceedings, children have a right to have their views heard, and that in pre-legal proceedings, such as mediation, this right remains. Therefore while the extension of the provision of the Guardian ad Litem service is welcomed, it is suggested that there is a need for the feelings and views of children to be considered in all proceedings in which they are concerned.

6. CONDITION THAT THE DIVORCE DECREE IS ONLY MADE ON SATISFACTORY ARRANGEMENTS BEING IN PLACE FOR THE CHILDREN (P 81)

The Government proposes that the current condition for the grant of the decree based on satisfactory arrangements for children "or the best that can be made in the circumstances" be retained. It is suggested that this should not in fact be retained, as it is a statement which very much reflects the current adult-centred approach of divorce procedures and the passive stance of the law. This might be an appropriate place to include a statement in the Northern Ireland divorce procedures that the judge is satisfied that the wishes and feelings of the child have been discovered and considered. In this way, the Northern Ireland system would have stronger guarantees than the English system that the rights of children in the process are protected.

 CONCLUSION

The present divorce procedures in Northern Ireland are adult-centred. With the abolition of the compulsory Child Welfare Report in 1996, there is no longer even any theoretical guarantee that the children whose families have broken down can voice their views and feelings as to the resolution of the situation. Nor is there any requirement to inform children about the way things will proceed or what support services are available to them.

The Government proposals certainly seem to express a desire to protect the best interests of children. They fail however, to propose any concrete mechanisms for doing this, and to guarantee that children's rights to be heard and to participate in proceedings that concern them as enshrined in the UN Convention on the Rights of the Child will be respected. Proposals to extend the Guardian ad Litem service in private law proceedings are welcomed. However, this proposal is mentioned at the end of a rather long document, and it does seem rather out of place in the context of all the other proposals, which are much more adult-centred. Nor does the Government state unconditionally that it is desirable for children to have a voice in private law proceedings.

We cannot ignore the implications of the imminent incorporation of The European Convention On Human Rights into our domestic legislation pursuant to The Human Rights Act 1998. It has clearly been established that the right to family life pursuant to Article 8 attracts the protection of the right to a fair hearing within a reasonable time by an independent tribunal established by law pursuant to Article 6 ECHR. As our divorce law stands it is our view that we are breaching the child's right to a fair hearing in relation to the resolution of residence and contact arrangements at the time of divorce. These comments should be viewed particularly in light of the recent judgement of The European Court Of Human Rights in T & V v UK (16 12 99) which in the context of criminal proceedings stated that it was essential that steps were taken by our legal system to promote a child's ability to understand and participate in proceedings in a manner which was consistent with his age and understanding. This concept is easily transferable to a child's civil rights which includes his or her family rights.

We would be concerned that there is no mechanism at present to bring the child's views before the court and that the child may in fact be being denied access to an effective domestic remedy which again is a matter which has been the subject of comment by The European Court Of Human Rights in the judgement of W v UK (10 EHRR 29).

It is time that the law reflects and protects the rights of children and young people in the area of divorce, and that the procedures here become less adult-focused. Recognition and protection of rights does not have to be seen as something 'interventionalist' which conflicts with any principles of non-intervention. This is important not only in terms of the fact that children have rights here which have been ratified by the signatories of the UN Convention on the Rights of the Child. It is important also because parents of children, normally entrusted with safeguarding the rights of their children, are at their most vulnerable during this period. This makes protection of rights offered by the law in this area even more essential.

EXECUTIVE SUMMARY

1.The Children's Law Centre welcomes the proposals for an information service but would urge the government to consider producing the information in a format which is accessible to children and young people as well as to adults and ensuring that the information is readily available from organisations such as The Children's Law Centre. We would be happy to assist through our children and young person's advisory group with the production of such materials.

2.    The Children's Law Centre supports the introduction of mediation services but on the basis that such services would have to be child centred in their approach.

3.In an effort to ensure compliance with both The UN Convention On The Rights Of The Child and The Human Rights Act 1998, The Children's Law Centre recommends that the government takes action to ensure that the child is given an effective voice in divorce proceedings. At present there is no such mechanism and we welcome suggestions to extend the Guardian Ad Litem service to divorce proceedings We also suggest that at the stage of the Statement of Arrangements for Children, that children's views are sought. In our view this issue should be central to the debate on divorce reform. We are concerned that although this issue is addressed on page 73 of the paper that a specific recommendation is not proposed in Chapter 11 which is described as a summary of proposals and in fact does not mention children's participation at all.

 4.The Children's Law Centre agrees with the adoption of a Code of Practice and increased family law training for all those involved in the divorce process.

5.In any reconstructed or streamlined court system we must not let the child's voice be lost amongst financial and other issues. All courts dealing with children and young people should have appropriate facilities and training to cope with their needs and appropriate timetabling should be used to ensure that children and young people do not have long waiting periods and also have an area to wait which respects their privacy.

6.The Children's Law Centre agrees that there should continue to be visible judicial involvement in the divorce process for the reasons stated in the consultation paper.