As I’m sure I’ve said before, family law may vary from one jurisdiction to the next, but the situations facing family law judges around the world are often very similar. It can therefore often be just as instructive to read family case judgments from other jurisdictions as it is to read our own judgments.
Take, for example, the Irish Court of Appeal judgment in M.M. v G.M. This contains lessons for separating parents everywhere.
The scenario in M.M. v G.M. is depressingly familiar to all family lawyers. The parents (of two young children) separated and in 2010 both commenced matrimonial proceedings, since when they “have expended huge amounts of time, effort and money in litigating practically every issue that one could think of in a matrimonial dispute”. The original trial lasted an incredible fourteen days and there have been numerous applications on many occasions since. In April 2013 a judgment was delivered that ran to an eye-watering 259 paragraphs (plus nine schedules). That judgment ‘dealt comprehensively with the matters in dispute’, which included issues relating to custody of, and access to, the children. Yet a further judgment in March 2014 dealt with custody and access, amongst other matters. Meanwhile the parties had litigated financial matters right up to the Irish Supreme Court.
Not satisfied with that, the parties were back before the Irish High Court in December 2014, arguing once again over custody and access issues. The judge then made orders suspending overnight contact between the children and their father, and directing that no further application was to be made to the High Court in respect of the two children, either by way of enforcement or review, before the 26th of March 2015. The father appealed against these orders, and the Court of Appeal gave its judgment on the 23rd of February.
The Court of Appeal refused to interfere with the decision regarding overnight contact, as the evidence before the judge was that the two children were in a distressed condition, and any form of forced overnight access would not have been for their benefit. However, whilst the Court of Appeal understood why the judge made the ‘no further application’ order and had some sympathy for him, it allowed the appeal on that matter, as it considered that the order constituted a denial of access to the courts, which was unconstitutional. It seems that Irish children law may not have the equivalent of section 91(14) of our Children Act, which empowers our family court to make an order preventing a person making an application with respect to a child, usually for a specified period, without the leave of the court.
However, it is not the decision of the Court of Appeal that is the real focus of this post. Instead, it is the words of the Irish judges regarding the behaviour of the parents in this case. Here are some examples.
From the High Court judge:
“The only thing I can say to Mr. M in relation to the issue if his belligerence continues, if he is still offensive to Mrs. M there will be consequences in the relationship with his children. I have no doubt about that. I know it is definitely affecting the children.”
From Mr Justice Kelly in the Court of Appeal:
“The parties are conducting a litigation war against each other. They are each, in their respective ways, extremely difficult people and I entirely agree with the High Court judge when he said that the court is ‘challenged to the very limit to try and deal with them’.”
And, most tellingly:
“As to the children the Professor [an expert assisting in the case] described the elder child as being “really weighed down by the conflict between her parents”. … The Professor took the view that the children are terrified, but went on to say in very specific terms that they are not terrified of their father. He said they were “clearly not frightened of father” but were terrified of the conflict and that it (the conflict) had mounted. He then spoke of the responsibility on the parents to do something about the environment between them, so as to reduce the conflict for their children, because it was on the way to becoming an intolerable burden for them. As a result of all of this, the elder child was now saying negative things about [her father]. The elder child was demonstrating sleeplessness and was missing school. The younger child was also fearful. He actually said to the Professor at the conclusion of a meeting with him, “I want the war to end. I want peace”. That was said spontaneously by the child. It is a poignant commentary on what the unfortunate children have been experiencing.”
And lastly from Mr Justice Hogan, the other Court of Appeal judge to give a judgment:
“It is a matter of the deepest and most profound regret that the bitter and internecine battle which has been fought relentlessly and in an uncompromising fashion by both parents has so deeply affected the children. It is, regrettably, impossible to avoid the conclusion that the happiness and general welfare of the children has been grievously affected by sustained parental conflict.”
It is unfortunate that parents involved in such conflict only get to hear such words long after the conflict began, rather than at the outset or, better still, before it began. Then, perhaps they would see how damaging it can be before any real harm is done to the people they care about most, their children. They might also realise that, as Mr Justice Hogan also said, choosing conflict over compromise and thereby handing over decision-making regarding arrangements for children to the State is nearly always unsatisfactory.
Read the judgment here.