Family law conference:The hearing of children's views in divorce or judicial separation proceedings was based on an unclear and incoherent framework in the State, a leading family lawyer has said.
Cormac Corrigan SC, speaking at a family law conference, said the UN Convention on the Rights of the Child (UNCRC) provided a very significant right to children to have their views heard before the court and given due weight in accordance with their age and maturity.
Mr Corrigan said, however, that it also provided that the opportunity to be heard should be provided in a manner consistent with the procedural rules of national law. "If the situation in this State were to be gauged or assessed, what could one say are the procedural rules of national law?" he asked.
There was a lack of coherent thought process being applied to this area, including in cases where a guardian was being appointed for the child, he said.
A further deficiency was the absence of any power in the court to direct the appointment or sanction the retention of a solicitor and/or counsel for the guardian.
Referring to an EC regulation, Mr Corrigan said in divorce or judicial separation proceedings between spouses, it acknowledged the importance of the child's position just as much as when the proceedings were more directly concerned with the child's welfare, such as in a custody or access dispute.
However, the only substantive, as opposed to procedural, provision in the regulation concerned the hearing of a child in another member state. He said this was a cause for concern.
"It is such a cause for concern due to the somewhat unclear and incoherent framework in the State for the hearing of children's views," he said.
Mr Corrigan also spoke about the Government's decision to opt out of proposals to harmonise divorce and legal separation throughout the EU and said it could bring problems in future.
Last October the Government opted out of entering negotiations that could have allowed Irish courts powers to grant divorce or legal separation to EU nationals resident in the State.
He said the decision of the Government was understandable and might very well be justified in the domestic Irish context.
"However, one wonders whether its decision not to opt into any such provision will cause problems in the future," Mr Corrigan said. It raised a number of questions, he added. For example, could non-Irish nationals choose Irish law as their applicable law or choose the Irish courts as their forum?