Resolving Access and Custody Problems – The Role of Prison

The Children & Family Relationships Act of 2015 has been passed and its provision will come into effect very shortly. Under this Act, a spouse or civil partner or a co-habitant of not less than three years duration can apply for custody where they have shared parenting of a child for at least two years. If a person has parented the child for over a year and there is no parent or guardian willing or able to exercise custody, then that person can apply for custody.

The main issue I want to address here is an ongoing problem for many of my clients over very many years and that is in relation to access. Where one parent, usually the father, has been refused access despite the existence of a court order, what can he do? I was looking forward to this new Act in the hope that new rules would be introduced to more effectively persuade parents to obey access orders. Unfortunately in my view the Act will do little or nothing to prevent current abuses.

The scenario I come across most often is where a mother simply says that she will not compel her son/daughter to see the father because the child does not want to see the father.

The new Act introduces new enforcement measures and the gardai can become more involved in the enforcement of these orders and ancillary orders concerning mediation or counselling can be made.

What we need however is for the judiciary to take a far more proactive stance in relation to these cases involving vulnerable children. In my view it should be a very serious crime to abuse a child by deliberately refusing to comply with an access order. It appears to me that many parents appear to be of the view that all court orders must be obeyed and enforced except access orders. There appears to be a view that if a judge makes an order that access take place, it should only take place provided mother agrees. I am sorry to single out mothers but in my experience that tends to be the case.

We need judges who are strong enough and have the resources to ensure that access orders are complied with.  Pending the Government providing finance to ensure those additional resources are available to judges (which, being realistic, is not going to happen in the short term at least), the only effective remedy I see is prison, or at least the realistic prospect of prison.

If you would like any further information in relation to this or any related matter, please do not hesitate to contact me on (01) 6797930 or email kevin[at]brophysolicitors.ie and I will be happy to assist you.

Kevin Brophy

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