Proposals to expand the use of ex parte hearings in child custody proceedings could be challenged as unconstitutional, the government has been told.
The Department of Childhood, Equality, Handicap, Integration and Youth has just published the answers to its 2020 consultation on the reform of the Child Care Act 1991.
While supportive of the reform in principle, a number of submissions – from the Family Lawyers Association (FLA), the Bar Council and individual law firms – raised concerns that specific proposals in the consultation could conflict with the constitutional rights of parents.
The consultation paper notes that care order hearings can be hampered by the “repeated absence of any party,” among other actions, and proposes that courts may “hold ex parte hearings where circumstances warrant. “.
It also proposes that, where a voluntary custody agreement is already in place, a custody order could be made ex parte “where the court is satisfied that the relevant threshold has been met and there is acceptable parental consent so that parents can avoid the system court if they so wish and agree to receive care out of court”.
However, the Bar Council said it was “very concerned that an order such as a care order… could ever be granted on an ex parte basis”.
Its brief continues: “It is noted that one of the concerns raised in the consultation document is ‘repeated absence of a party’. It should be emphasized that a party’s non-appearance is entirely separate and distinct from an ex parte application.
“An ex parte request is made without notice to the other party, which is therefore not in a position to oppose the request. This is quite different from circumstances where a party or parties fail to show up.
“If this happens, then it is for the presiding judge to consider whether service is proper and whether it is appropriate for the hearing to continue in the absence of a party or parties (which is not the same as an ex parte hearing).”
The FLA’s Child Custody Law Reform Subgroup has argued that the proposal for ex parte hearings is “extremely problematic”.
“The rights of parents and children under the Constitution and the ECHR require that sufficient weight be given to the rights of children to their parents, parents to their children and all parties to due process in any decision affecting these rights,” he said.
“Interfering with these important rights on an ex parte basis would likely give rise to significant issues and be subject to litigation.”
Dublin-based Mulligans Solicitors, who specialize in family and custody law, said the proposal “does not address the power imbalance identified between parents and [Child and Family Agency]”.
“Furthermore, we are concerned that the proposal that custody orders can be made ex parte will result in further underrepresentation of parents throughout the process,” the firm said.
Children’s Minister Roderic O’Gorman previously said the reforms would make the 1991 law ‘more child-centred’ and take account of constitutional changes made in the 2015 child rights referendum .