Domestic violence and child sex abuse concerns are being “discounted” in custody disputes as “mischievous or malicious” allegations, putting children at risk of further abuse, a report from the Department of Justice warns.
The study says court-appointed experts in family law cases, tasked with reporting on the best interests of children, are unregulated and often inadequately trained on domestic violence and its impact on children but “can have a significant influence on a case”.
Titled Review of the Role of Expert Reports in the Family Law Process, its compilation is a requirement of the Government’s third national strategy on Domestic, Sexual and Gender-Based Violence (DSGBV) published in June 2022. It committed to “identify children and young people as both witnesses and victims/survivors” of violence
The new report comes on foot of a department policy paper on “parental alienation”, published last year, which advised against legislation recognising the contested concept – where one parent is alleged to have turned their child or children against the other – given its potential to silence children’s voices and endanger victims of violence. It recommended an examination of how court experts were appointed and their reports were conducted.
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“Every day in Ireland, decisions are made concerning where a child will live, and who they will live with, and whether or not they should have access with the other parent, and if so, when and for how long,” says the new report. “It is recognised that it is the child, more than anyone else, who will have to live with what the court decides.”
Conducted between June and October 2023, the report draws on direct consultations with children and 38 stakeholders including Women’s Aid, Men’s Aid, children’s rights organisations, Tusla, court assessors and District, Circuit and High Court judges. Desk-based reviews of reports on family justice were conducted.
Expert reports on the welfare or the views of children may be ordered under three pieces of legislation: Section 32 of the Guardianship of Infants Act 1964; Section 47 of the Family Law Act 1995; and Section 27 of the Domestic Violence Act 2018.
Of significant concern to stakeholders is that “assessors do not have adequate training or accreditation to properly assess family violence, including coercive control and its impact on children,” says the report.
“Stakeholders reported assessors ... often fail to give proper weight to concerns expressed by one party about child sexual abuse occurring at the hands of the opposite party, and/or to disclosures of sexual violence by a partner.
“They say these concerns are often dismissed or discounted as mischievous or malicious and that they are rarely addressed fully and seriously in the eventual recommendations on future custody and access. Stakeholders say this can result in a pro-contact culture that prioritises access over safety and excludes the voice of the child regardless of abuse and risk.”
Social workers and psychologists produce the majority of reports. While the former are regulated by the statutory body Coru, psychologists are not. With no register of these experts, they are “usually identified through word of mouth”. Judges said reports’ recommendations are “not sacrosanct” but “are generally followed”. There is no mechanism to appeal recommendations.
Parties – usually parents – may seek an order for a report or a judge may order one. The costs of between €3,000 and €5,000, and up to €12,000 per report must be borne by parents.
Among numerous recommendations are for a panel of State-employed, qualified, regulated and accountable experts overseen by a board; provision of increased pre-court supports for separating parents, including parenting-when-separated courses, and, establishment of a Children’s Court advocate to inform children about the legal process and assist them having their voices heard.
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