Ascertaining the Views of Children in Guardianship, Custody and Access Proceedings in Ireland

This report examines the effectiveness of the implementation of the obligation in Article 42A.4.2° of the Irish Constitution to ascertain the views of children in court proceedings concerning guardianship, custody and access. It presents the results of phases 2 and 3 of a three-phase research project. Phase 1 consisted of a comparative review (published in 2023) that provided an insight into the processes and structures for the ascertaining the views of children in private family law proceedings in six jurisdictions (Ireland, England and Wales, Australia, New Zealand, Ontario, and Germany), with a view to identifying common challenges, the strengths and weaknesses of different approaches, and variations in law and practice. Phases 2 and 3 aimed to produce empirical data on the practical reality of child participation in proceedings in Ireland specifically concerning guardianship, custody and access. Phase 2 consisted of a national survey of the views and experiences of professionals who have worked in these proceedings. Phase 3 consisted of observation of family law proceedings in a sample of seven District Court venues across Ireland. The data collected in the course of this project is triangulated against other data sources, and recent reform proposals are assessed in light of the empirical evidence. The data indicates that notwithstanding the enactment of Article 42A.4.2° of the Constitution and section 32 of the Guardianship of Infants Act 1964, considerable barriers remain to the vindication of the right of children to be heard in guardianship, custody and access proceedings. The views of children are ascertained in a minority of cases at present, with considerable variation in practices from District to District. Costs associated with commissioning expert reports are extremely high, and there is a shortage of experts available to prepare reports. Concerns exist regarding the regulation of professionals charged with preparing reports; the level of training provided to all professionals involved in private family law proceedings; and the level of support and information provided to children to assist them to express their views. Recent recommendations made by the Department of Justice Review of the Role of Expert Reports in the Family Law Process are necessary, but not sufficient. Legislative reform, additional support and training for judges and child-friendly court environments are also necessary if the constitutional obligation to ascertain the views of all children capable of forming their own views is to be fully discharged.