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Northern Ireland outdated laws on breakdown of families driving culture of court cases affecting kids

Exclusive: 20 decisions on custody a day now being made by judges in NI

By Lindsay Fergus

Published 15/04/2016

Picture posed by models
Picture posed by models

More than 20 decisions a day are being made under the Children Order by behind-closed-doors courts in Northern Ireland, new research has revealed.

Upwards of 24,000 decisions impacting on thousands of children's lives were made by judges over the past three years, according to analysis by the Detail Data website.

Outdated Government policy on family breakdown and child custody is being blamed for Northern Ireland "sleepwalking into a culture of litigation", with the courts being used to perpetuate family conflict.

The research found that almost half of all orders being made in Northern Ireland's family courts, from which the media and public are excluded, are for "contact" and "residence" - setting out which parent a child lives with and when they have contact with their other parent.

The findings have sparked calls for more use of mediation as an alternative to court action.

Detail Data's analysis of court records also uncovered errors in the Courts Service's official Children Order statistics, which record judges' decisions affecting children's lives.

Figures covering a nine-year period will have to be amended following the revelations.

Researchers obtained comprehensive statistics on family court rulings - known as Children Orders - made between September 2012 and August 2015 in response to Freedom of Information requests lodged with the Northern Ireland Courts and Tribunals Service.

An analysis of data from the Family Proceedings Court, Family Care Centre and High Court found that 10,206 contact and residence orders were made over the past three judicial years. Those orders can relate to more than one child.

In comparison, Family Mediation NI - the largest provider of pre-court family mediation in Northern Ireland - received Government funding over the same period to assist just 750 families to reach agreement without going to court.

Joan Davis of Family Mediation NI said: "The problem with the courts system is that it is being used to perpetuate family conflict inadvertently. It is an adversarial process by nature.

"The rest of Europe uses mediation as the default first option in family breakdown and yet, in Northern Ireland, the default process is the courts system.

"In 2010, the Minister for Justice spoke about finding different ways of diverting parents away from the courts system. We are in 2016 and no additional money has come from any department."

Ms Davis claimed that policy has not kept pace with social change and the make-up of modern families, with almost twice as many children (10,504) born to unmarried parents in 2014 compared to 5,337 in 1994.

The Northern Ireland Statistics and Research Agency figures also show that the parents of 2,400 children (under the age of 18) divorced in 2013.

Ms Davis added: "We urgently need policy-makers to catch up with what's happening on the ground. The divorce figures don't give you the true picture, because half of the people that come through these doors have never been legally married.

"We have an increase in casual relationships producing a child. We don't sit in judgment as to how this child came into the world, but the law states - under Article 9 of the United Nations Convention on the Right of the Child - that the child has the right to access both parents."

Alana Fisher, whose parents turned to the courts when their relationship ended, said: "The child's voice is definitely being lost in the system."

The Northern Ireland Courts and Tribunals Service has now initiated an immediate review of its data. It said it will amend and republish figures covering a nine-year period.

It also confirmed that it was undertaking a consultation exercise and has proposed a new methodology of counting the number of Children Orders made by judges.

A Department of Justice spokeswoman said: "The Access to Justice 2 report highlighted further areas of interest in regard to mediation and this matter will be revisited in the future."

So what happens to the youngsters when the adult relationship fails?

Child One and Child Two

Following a marriage breakdown, the former husband and wife (both in receipt of legal aid) had been in court 29 times in 18 months.

The two children had been under the care of three different social workers - at the request of the parents - medical professionals and a referral to Child and Adult Mental Health Services (CAMHS) made by the mother was pending.

The parents, both professionals, could not communicate with each other - even on the phone, or by email - such was the deterioration in their relationship. Numerous court orders had been made, some breached, including non-molestation, residence, contact and prohibitive steps.

A children's officer remarked how one of the children was "distressed about mummy and daddy fighting about the days". Residency was awarded to the mother and the father's contact was reduced from three nights to two nights with every public and bank holiday.

Child Three

A teenage girl had been placed by the State in foster care after 8,000 indecent images and videos involving children were found on the computer of her mother's boyfriend.

Legal representatives for the child's mother, father, guardian ad litem (which acts as the voice of the child in public law cases) and the health and social care trust which had initiated the proceedings were all in court.

The judge heard from the guardian ad litem that the girl was "very bright, motivated and ambitious", but was struggling at her foster placement, where she had been placed four weeks earlier "as a matter of urgency" after the discovery.

The court was told: "She seemed weary, tired and somewhat disconsolate. She is intelligent and articulate and is arguably suffering harm."

The case, which lasted 17 minutes, was adjourned to allow the trust to carry out a viability assessment on the girl's grandmother as a carer.

Child Four

A six-month-old baby was taken into care after sustaining a "non-accidental injury".

He had already been removed from his parents and placed with foster carers when the case came before the court.

His parents, who also had to rely on an interpreter to convey what was going on in the proceedings, sat side-by-side at the back of the court.

The court was told his parents, who were seeing him daily, were "very distressed about the child remaining in foster care".

They were seeking for the baby's grandmother to care for him, but social services expressed concerns about her health and said that the assessment of the grandmother would take four weeks.

The guardian ad litem representing the child's perspective described the delay as "unacceptable".

The parents succeeded in having the baby moved from a foster placement to the care of his grandparent.

Child Five and Six

This case resulted in five children being removed from their parents.

The siblings had been split up and were living with two different sets of relatives (kinship care) and also foster carers.

The court was told that there was a significant history of social services involvement with the parents who were "not engaging with the trust and were not attending contact" with their children. Plans for two of the children to reside permanently with relatives fell through, leaving the trust with no other option than to consider adoption for the children.

Then at the last-minute a relative came forward to say they would like to be considered to care for the children long-term, setting the case back by three months while the trust assessed their suitably.

The guardian ad litem said she was concerned about "drift and delay" as one of the children was young.

Agreeing with the guardian, the judge approved an interim care order for four weeks and ordered the trust to file an update report with the court within six weeks.

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