Over the last 20 years, international family law has come to play an increasing part in Irish law, writes URSULA KILKELLY
NOT LONG ago, family law was a typically national affair. Lawyers who understood the Irish legal framework, even with its dozens of enactments, were competent to represent clients in family law disputes.
Over the last two decades, however, the influence of international law has crept into, or in some cases been directly transplanted, the national legal system, meaning that a family lawyer’s brief now requires knowledge of an increasing number of regional and international instruments.
The law-making institutions that are increasingly active in this field include the United Nations, the Council of Europe, the Hague Convention on Private International Law and most recently, the European Union.
Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.
Increasingly, the emphasis is on the rights of individual family members – notably the children.
In this regard, the principles at the heart of the Convention on the Rights of the Child, now 20 years old, have come to be reiterated in numerous other international and European treaties. The rights- based approach to children’s issues has truly taken hold and is having a transforming effect on the way children are treated in the national laws of many countries, if not yet in Ireland.
The most recent addition to this collection of treaties is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. No one knows what impact the charter will have in our courts, but the fact that its provisions include article 24 on the rights of the child and article 30 on the family means there is potential here for a reconsideration of Irish law in these areas.
In particular, the charter requires that the best interest of the child is a primary consideration in all actions concerning children and that children’s views are taken into account in matters that concern them, in accordance with their age and maturity.
Based on the Convention on the Rights of the Child, the charter represents an important consolidation of these standards at European level, one that is likely to be influential on the Irish legal system.
Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms.
Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.
The convention, as a universal blueprint for the treatment of children in family law and other areas, has also influenced the European Court of Human Rights in its interpretation of the court in a range of areas.
In this way, the court has asserted child-specific standards where purely adult-oriented approaches previously prevailed.
The influence of the convention will ultimately mean that children’s rights – including their right to have decisions made that genuinely take their interests and views into account – will have to be taken seriously in Irish law.
Influences from the European level are not new to Irish family lawyers. The European Convention on Human Rights, which has bound Ireland for decades, was given effect in Irish law in 2003.
The case law of the European Court of Human Rights on adoption, alternative care and abduction is extensive and adds both procedural and substantive layers to family law in this and in other jurisdictions.
Especially important from our perspective is that the convention takes a much broader view of the family than the Irish Constitution. This will eventually bring changes to our traditional concept of the family to include cohabiting families, same-sex relationships and step and adoptive families.
In fact, this has already happened with the High Court judgments in McD on the lesbian family (pending before the Supreme Court) and Re G, about the rights of an unmarried father.
The latter case was decided on the basis of the EU Brussels regulation 2201/2003 (concerning jurisdiction in family law matters), highlighting that the “horizontal” conversation between all the European instruments, as well as between the Irish and the European, is already under way.
It is vital that this dialogue between the national and the international is two-way, given what Irish law can contribute. To this end, the Irish courts should actively interpret and apply the European Convention on Human Rights in the Irish context.
In 2008, the House of Lords adopted this approach in the case of Re P and in doing so struck down the Northern Ireland law that excluded an unmarried couple from adoption (even though the European court had not reached this conclusion), suggesting there is plenty for Irish lawyers to learn here as seeds sown in London are carried across the Irish Sea.
So the complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.
It also brings opportunities for lawyers keen to provide quality advocacy to their clients.
For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.
Dr Ursula Kilkelly, senior lecturer in law in University College Cork, will address the Four Jurisdictions Family Law Conference in Enniskerry on January 29th and 30th. Booking to sotoole@arcadia marketing.ie