If you have children, you’ll understand that your Separation or Divorce must prioritise their needs above all. This means that the effect of all choices and decisions must be considered from the children’s viewpoint. When children remain at the top of your Agenda, you have a greater chance of achieving a better separation. This is better in the long term interests of your entire family.
Undoubtedly the process of separation or divorce can be very difficult for any family, particularly at the beginning. But the good news is that, in my experience, children are very resilient, and can come come through this period very well. That’s if their parents have the right attitude, offer the right supports and avoid conflict where possible in front of their children. In these circumstances, children can continue to thrive in their new family structure.
Since the Children’s Referendum in 2012, Courts must hear and consider the views of children in proceedings which affect them. In terms of children and divorce or separation, this has been a major step forward. However, integrating this in a safe and structured way is still a work in progress. As these reforms progress,the fact remains that in most cases children’s views are expressed through the voice of their parents. As a result, the emotions and wishes of the parent may colour these views, even unintentionally. So Judges are mindful of this when dealing with children and divorce or separation.
You may succeed in keeping your separation out of court. If so, then you will negotiate a Separation Agreement through solicitors, Mediation or Collaborative Law. You can make sure your children will always be at the top of the agenda in this process. For example, they can bring their voices and views to the table by using professional counsellors. These counsellors can speak with the children and act as their voices through the process of divorce or separation.
If your dispute ends up in court then the Judge can order that a report – known as a Section 47 Report – from a Child Psychologist. These reports aim to bring the children’s wishes and views to the attention of the court. The psychologist will meet with the children and parents, as part of this process. The psychologist will also usually issue professional recommendations on access and custody in your case. These reports will seek to balance the views expressed by the child, with what the psychologist deems is in their best interest. However, these reports will ultimately be based on the opinion of the assessor. Making your child feel as comfortable as possible in these meetings can help them express themselves more clearly.
Section 47 Reports are more common in the Circuit Court. This is because court hearing tend to be longer and there’s more time to consider the full picture.
The most common type of Report under this category is what is known simply as a “Voice of the Child” Report. Such a report will simply provide the child’s opinion and views to the court. It normally involves one or two meetings between the child and the assessor. A separate “welfare report” can also be obtained, which can address a particular welfare issue concerning the court or the parties.
Section 32 Reports are more common in the District Court, where the child’s opinion is usually sought by the court alone.
Judges can also speak directly with children, depending on their age, maturity and whether it would be in the child’s interests to do so. The child may attend at Court to meet privately with the Judge in the Judge’s chambers. In such cases, you should try to ensure that your child attends court before or after the normal hours of business. This will help you avoid the bustle of court and the pressure of so many people in the building, which can be a stressful environment for a child. The building will be calm and quiet after hours.
It’s important to note that the views or wishes of the child will not always be met by court decisions. The court must hear the expressed views of the child, before making judgements affecting children and divorce or separation. But the court’s main role in terms of children and divorce, lies in ordering what is in the child’s ultimate best interest.
Whatever the method, it is always the case, that the Voice of the Child should be an integral part of any family negotiation. It is amazing how beneficial this is and how hearing their words can change outcomes.
If you need advice on helping your children through separation or divorce, just call Alan on 01 637 6200. Or you can email him at alan.finnerty@orpenfranks.ie
