Submission to the Law Reform Commission 1

Submission to the Law Reform Commission 26 March, 2007, NUI Galway.

Former Supreme Court Justice Mrs Catherine McGuinness in chair

My name is Sam Butt and I am a Father. I am also a director of ‘Fathers for Equality and Justice, a charity dealing with family issues and especially father’s rights. My involvement in this charity stems from my experiences of the vagaries of the family law system over the past seventeen years.

I have managed to table over fifty questions in Dail Eireann relevant to the welfare of the family and would like to draw your attention to two answers received from the Minister for Justice and Equality, Mr Michael McDowell. The questions asked were as to what steps he is taking to reform family law and ensure equality for all parties in the family law process.

Dail Eireann. Q & A’s. no. 213. 28/11/2006.

The constitution requires that people who appear before our Courts in essentially the same circumstances should be dealt with in essentially the same manner. It follows that in the exercise of its judicial functions under various enactments, including those on family law, it is the duty of the courts to see that this principle of equality is observed.

Dail Eireann. Q & A’s. no.388. 31/01/2007

• The Equal status acts 2000 to 2004 specify nine grounds on which direct and indirect discrimination in the provision of goods and services is prohibited. The specified grounds include gender, marital status and family status and are defined as follows:
• Gender ground – that one is male and the other is female
• The marital status ground – that they are of different marital status The family status ground – that one has family status and the other does not or that one has a different family status from the other

Eminent US Geophysicist Dr Charles E Corry states that “under current laws a man has to be functionally insane to marry and a drooling idiot to sire a child”.

Every day many loving and caring fathers are being dehumanised. The title primary carer is firmly affixed to the mother irrespective of proof available to the contrary. My personal experience is the same despite the fact that not only was I the provider but also the primary carer, most of the time. Documented proof, medical and otherwise is there for anyone to see but the Judge in the District court would not hear of it and till the divorce hearing it was neither admitted nor applied. Even then the Circuit court judge cited time constraints.

The same story is repeated from all corners of the country, not only by fathers, but law practitioners, social workers, psychologists, politicians, retired court clerks and sundry. These people were ill served and yet their stories are never told due to the in camera rule. Especially in District family court where there are no records of the hearing, hence no possibility of scrutiny taking into consideration that this is where most of the harm to the family is done. Even better no public hysteria. It may as well never have happened.

Over 200,000 hits on my website, fifteen hundred emails and more, 2,000 plus phone calls and close to a thousand personal visits to my office in the past twelve months and numerous questions tabled on my behalf in Dail Eireann gives me an insight to the workings of the family law.

The in camera rule serves to protect the inconsistency, prejudice and dysfunctionality of the judicial proceedings rather than the family’s interests and should be removed as the anonymity can still be maintained as in the juvenile hearings and cases of rape, incest etc.

Lies from start to finish, allegations of physical, verbal or sexual abuse, inconsistent maintenance orders, lack of will to enforce court orders for access, protection/ barring orders issued without proof, making of prejudicial and inflammatory statements by judges while making judgements on presumption rather than onus on proof of evidence.

Submission of evidence from professionals should be encouraged and liaison between the courts and government agencies responsible for the welfare of the family needs more competence and accountability. Just one example is the civil servants who try to overrule existing court maintenance orders without due process.

The ‘Paramount welfare of the child’ should be seen to be served.

The costs projected for appeals procedures in higher courts are out of reach for most ordinary citizens especially as they are often left destitute after their initial judicial proceedings. Provisions should be made for legal representation in judicial review cases where the plaintiff is of limited financial means. 

The unaccountability of the Judges has led to autocracy with prejudice, especially against many an innocent father. They also restrict the competence of lawyers in their representations and curb their right to legal argument to the detriment of their client, again fathers, blaming time constraints.

Especially in the matters of access and custody, perfectly capable and able fathers are denied their very basic rights to guardianship and access by district court judges on a mother’s say so. Vexatious proceedings are norm of the day without accountability for perjury and false allegations.

As of late the disparity in judgements in recent criminal court outcomes has created public furore. If such raised public awareness of the family court practices would there not be a bigger outcry when the anomalies of family justice become transparent?

As there is no provision in the district court of transcript preparation, the court orders must be accompanied by a summary ruling from the judge and the criteria used for the basis of the judgement thereby making it easier for appeal procedures if such were to follow. Due to the rotation of judges in the district courts it will enable the judge of the day to follow the case in an efficient manner.

No one takes responsibility for this debacle. Neither the Justice Minister, nor the public representatives and especially not the courts service.

Hence I dare state that most orders made by judges in District and Circuit courts and their interpretation of law in family courts, are in breach of the Irish Constitution and the current legislation?

Courts are burdened with caseloads they are unable to cope with. An average of 70 listings in a District Family court is not uncommon and between 30 and 35 cases are heard on the day. Time allowance for pleading one’s case is negligible.

Dedicated Family courts are required with specialist judges trained in applications of family law with humanity. All cases should be brought to an early closure with minimal distress to all concerned. This would require daily sittings of the family court as family breakdown is causing a social crisis and putting the welfare of our children and their future in peril.

Last week an acknowledgement was forthcoming from a Circuit court Judge as to the inadequacy of the family courts.

It’s long overdue but welcome news from the justice minister that the Judicial Council Bill is in front of the house and the appointment of an ombudsman to monitor and oversee the Bar Council and the Law Society on the issues of inadequate services, excessive fees and misconduct. Also the appointment of sixteen new judges is most welcome but much more needs to be done. As of late ‘welfare of the child’ and children’s rights are making news. More legislation and more bureaucracy in the hands of a plethora of civil servants whose competence and accountability is open to question, at the best of times.

In every recent scholarly research and independent study social workers openly state their bias against fathers in preparing reports for the courts. Then to pour salt on a gaping wound the suggestion of legal counsel for ‘the child’ in family courts. As I have previously questioned the functionality of current legal practices, now the legal battles will be three pronged in an already over burdened, incapable and highly dysfunctional family law system.

There is a clear danger of more harm being done to the emotional and psychological well being of a child. Also the question of what age does the child need representation, allowed to speak with the judge and how will the grounds be prepared for such litigation? What steps shall be taken to safeguard the child and how will the highly charged atmosphere of the court affect his well being? Another off the hoof piece of legislation without ever addressing the bigger picture! So many questions and yet, no answers.

The recent report collated and compiled by Dr Carol Coulter states that 90% of all cases in Family courts are settled outside of the courts. My experiences and observations reflect that majority of these cases are settled upon legal advice and bartering on the day of the hearing on the steps of the courts. This is wholly unacceptable, immoral and unfair to the litigants as such is achieved under conditions of extreme stress and duress.

Much more in resources needs to be made available for the institution of family justice to fulfil its obligations in the manner befitting a civilised society.

In 2005, 12 separated fathers took their own lives. Figure for 2006 are not yet available. Also, over 8% of admissions to the psychiatric wards in the west comprise of separated men.

On the 28 February 2007, Baroness Deech of Oxford in a letter to ‘The Times’ states, “In disregarding fault, maintenance law is unfair to good fathers and good husbands and benefits only wives fortunate enough to have married , even for the briefest of periods, wealthy men. It is even proposed to remove consideration of the child’s need for a father from the decision on whether or not to offer infertility treatment. What is needed in law is a renewed respect for the ‘Paternal’ role and education for teenagers about the benefits of marriage for children”

This compels me to state that current practices in family law are to the detriment of the family and the individual which the ‘Irish Constitution’ undertakes to protect