Private Client and Family Law Update September 2013

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1 Private Client and Family Law Update September 2013 High Court rules child should attend private school Beauchamps successfully represent appellant in private school case The recent decision by the High Court to order a 12 year old boy to attend a private school has been the subject of great discourse in the media for its implications. The fee paying versus free school debate is one that touches a nerve with many people. In BB V AA, the judge made the unusual decision to make the judgement available in Open Court, lifting the usual in camera restrictions. This indicated that the judge considered the question in this case to be of considerable public importance. Implications of ruling In BB V AA, the judge was clearly acknowledging that the State, in the form of its judicial arm, should only be brought in to the picture when the parents are unable to reach a decision. Citing Article 42.1 of the Constitution the State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious, physical and social education of their children, the judge was at pains to point out that this was a situation where there was an unbridgeable conflict of opinion between conscientious parents. While this was not a case where either parent had failed in their duty, nevertheless because of the parents inability to reach a decision the principles in Article 42.5 of the Irish Constitution came in to play the State, as guardian of the common good by appropriate means, shall endeavour to supply the place of the parents, but always with due regard to the natural and imprescriptable rights of the child. In his ruling, the judge gave weight to the fact that the child in question was academically gifted and should be given the best opportunity possible, bearing in mind his particular gifts. Weighing up the financial question, the judge concluded that the family could afford the school, especially given that the school had agreed a reduction in fees of 50 per cent. He emphasised that if this reduction in fees was withdrawn at any time, then his attendance at the school could and should be reviewed. The judge s decision not to interview the child was based on the parents wishes not to involve him in court proceedings. The judge stated that since there were no other reasons for the child to be interviewed, then he was not required to take part in proceedings. The views of the child were brought to the attention of the court by way of a letter addressed to the judge and written by the child himself.

2 Insolvency Service of Ireland now open to applications The new Insolvency Service of Ireland (ISI) opened its doors this month. The ISI will be responsible for helping people restructure their personal debt. Personal debt has become an increasing problem for many people in Ireland since the onset of the economic crisis. The new personal insolvency arrangements fall into three categories Debt Relief Notices (DRN), Debt Settlement Arrangement (DSA) and Personal Insolvency Arrangement (PIA), which are detailed in the table below. Which insolvency arrangement you are eligible for will be determined by: how much you owe; the type of debt you have; your income; and what assets you have. A DRN arrangement is aimed at giving relief from debt to people who are in debt and have little or no disposable income or assets which they could use to repay what they owe. A DSA arrangement is between a debtor and his/her unsecured creditors. For this solution, only unsecured debts are included and there is no limit on the amount of debt. But certain unsecured debts cannot be included and for some other unsecured debts the consent of the creditor must be sought before it can be included. A PIA arrangement is between a debtor and one or more of his/her creditors. Unlike a DSA, a PIA can include both secured and unsecured debts. Permission must be sought from a creditor to include certain debts, while certain debt cannot be included at all under a PIA. Bankruptcy arrangements will continue to remain the same. Later in 2013, the ISI will be taking over some of the court service s functions relating to bankruptcy and there will be a change in the duration of bankruptcy for certain levels of debt. Family law issues dominate legal help calls Family law issues remain the top issue raised at Free Legal Advice Centres and on the FLAC helpline, according to their annual report released last month per cent of queries at FLAC centres related to a family law issue, while 35 per cent of callers to their national telephone information and referral line needed to discuss some aspect of family law. Separation and divorce advice were concerns for almost half of these callers, while over 30 per cent were looking for information on custody, access and guardianship of children. The data revealed that there was a significant increase in queries relating to housing/landlord and tenant issues in 2012, with an increase of almost 70 per cent compared to the previous year. An increase of accidental landlords was also noted in the report, with more people renting out their houses to meet mortgage expenses, instead of making a living from their investment. If you have a family law query, please feel free to get in touch with us: k.irwin@beauchamps.ie.

3 To smack or not to smack? Calls for ban on smacking children in Ireland It is probably one of the most sensitive issues in Irish society and in recent weeks there has been a resurgence of calls from children s rights groups to ban parents from smacking their children as a form of correction in the home. Corporal punishment in schools is prohibited in all European countries, but in many jurisdictions smacking as a form of correction by parents is still legal, including in Ireland. Ireland has been under pressure from children s rights advocates and the European Union for well over a decade. Physical punishment was banned in Irish schools by the Minister for Education in the 1980s, but due to a legal loophole, there is currently no law in Ireland which specifically bans corporal punishment in the home. Debates around a potential ban are intense, with a strong focus on the red line between discipline and abuse. Those in favour of a ban argue that the law needs to be changed in order to protect children from all forms of physical violence. Opposition to a legally enforceable ban is still strong in this jurisdiction, with some people questioning how a ban would work in practice. There have been further concerns about whether it is justifiable to make corporal punishment in the home a criminal offence, as it is in schools and care giving settings. Where is smacking a child at home prohibited? Sweden was one of the first jurisdictions to ban corporal punishment as a form of correction in the home, back in Chapter 6, Section 1 of the Swedish Children and Parents Code now reads: Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment. In practice, the ban has been largely successful, with only a small percentage of Swedish parents saying they would use a physical punishment as a form of correction for their child. The law is mainly enforced by Swedish social services, which are quick to investigate any allegations of the use of corporal punishment in the home. Criminal sanctions are reserved for only the most serious cases, with education in other forms of discipline being the preferred sanction. Public opinion has also changed since before the ban was put in place, with only 11 per cent of parents now believing smacking is part of child rearing. New Zealand s Anti-Smacking law has existed since 2007.The country s Crimes Act 1961 was amended to remove the legal defence of reasonable force for parents prosecuted for assault on their children. The law also lays down certain justifications for using force against a child.

4 Under Section 59 of the Act, where there is no justification or special circumstance for using force, the police must charge the adult with assault on the child and prosecution proceedings must be started. Critics of the Anti-Smacking law have said that good parents are being criminalised because of the ban. A survey conducted last year in New Zealand found that 44 per cent of parents contacted reported not smacking their children since the 2007 ban was introduced. Enacting legislation in Ireland Will we see a ban in Ireland in the near future? Well, that is the question on everyone s lips. Minister for Children, Frances Fitzgerald has previously said that a balance needs to be found between discouraging corporal punishment in the home and criminalising parents who smack their children. The family has a special place in the Irish Constitution. Articles 41 and 42 of the Constitution recognise the family as a moral institution with inalienable and imprescriptible rights. Potentially these rights could be violated should an Irish government attempt to introduce such a ban. Adopting a child from abroad This is the first part in our inter-country adoption series, where we will look at the key developments in this fast changing area. Families are made in many ways and increasingly in Ireland people are going down different avenues to shape their family. Inter-country adoption is just one of these avenues that Irish would-be parents may consider. While inter-country adoptions into Ireland have dropped from 307 in 2009 to 117 in 2012, these numbers are expected to rise with the finalisation of new adoption arrangements with the United States, Vietnam and Bulgaria in recent months. Negotiations are also underway to make similar arrangements with the government in Russia. Minister for Children, Frances Fitzgerald has said she is considering legislative changes to ease restrictions on Irish couples adopting children from countries that are not party to the Hague Convention. The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption was set up to establish protections to ensure that inter-country adoptions happen with the best interests of the child and with respect for a child s fundamental human rights. The Convention established minimum standards for inter-country adoption, but it was not intended to serve as law on these arrangements. As of March 2013, the Convention has been ratified in 90 countries. In our next issue we will look at the 5 key steps everyone considering inter-country adoption should be aware of.

5 Katherine Irwin is new head of Private Client and Family Law John White, Managing Partner, with Katherine Irwin. Beauchamps has a long history of servicing the needs of the individual and takes great pride in this tradition. I want to ensure Beauchamps private client and family law group is accessible and approachable in an era where so much of our business is done online, remembering that all business is personal. Katherine Irwin, partner and head of Private Client and Family Law Contact us: To obtain more information or advice on any private client or family law matters, please get in touch with us: Katherine Irwin & Owen Burke Beauchamps Solicitors Riverside Two, Sir John Rogerson s Quay, Dublin 2 Tel +353 (1) Fax +353 (1) k.irwin@beauchamps.ie web This ezine is for general information purposes only and does not comprise legal advice on any particular matter. You should not rely on any of the material in this ezine without appropriate legal or other professional advice. While every care has been taken in preparation of this ezine, we are not liable for any inaccuracies, errors, omissions or misleading information contained in it.