RECENTLY Kieran McGrath, editor of the Irish Social Worker, wrote to The Irish Times about a mother who contacted him after being sentenced to a month in prison for contempt of court, arising from a very emotional custody and access dispute. "She was not legally represented in court nor was the probation service involved. While the judge was perfectly entitled to do as he did, the question must be asked if this is the sort of person who should be behind bars?" he asked.
He wasn't the only one to be concerned. "The sentence did not fit the crime," believes Amanda McLoughlin development worker in the Parents Alone Resource Centre, Coolock, Dublin. You have to ask if it is in the interest of the child to see a parent just disappearing - especially a mother who has been with the child 24 hours a day since birth."
Those working in the family law area agree that it is unusual for a mother to be sent to prison over an access dispute; fathers are more regularly imprisoned for failure to pay maintenance. "In general the court will not do something which will ultimately be a loss to the child," says Anne Dunne, SC, who has dealt with many family law cases.
"Always do what is best for the children" is the philosophy of the courts, but the phrase seems to have lost its meaning for some parents. "Many parents are using their children as bludgeons to beat each other with", says Ms Dunne. "Very often the parents lose sight of the fact that they have a duty to put their children's needs first and their own second. They do not or will not recognise that this permanently damages the child."
In her daily work, Ms McLoughlin hears the pain of children with torn loyalties who say, "I don't see my Dad enough or my Mum enough. I want to see them more, but how do I tell one parent I want to see the other without hurting them?"
These intensely emotional dramas over access have lead to the rate of child abduction in the Republic increasing by 38 per cent between 1993 and 1995. There were two child abduction cases a week in the Republic last year. A total of 184 children were involved in 101 cases in which warring parents took their children from one jurisdiction to another in an attempt to thwart the other parents' rights of access.
The feeling within the Central Authority for Child Abduction in the Department of Equality and Law Reform, which handles the cases, is that these cases are most often about parents' egos and rarely about what is best for the children, said a spokesman.
Abduction may seem extreme, but in the heat of an access battle, some parents seem to lose their objectivity. Even the most superficially civilised parents can become crude psychological manipulators who willingly use their children to score points off each other. Their children often lie sleepless in bed at night, says Ms Dunne, and may overhear their warring parents spout damaging lines like, "I'll take the children and the judge will give them to me. You're a hopeless parent. They'll call the men in white coats to get you.
Such accusations of mental instability are more common among the middle classes, says Ms Dunne. Among the less well off physical violence tends to be the weapon of choice.
Money is another bludgeon, whatever the social class. Veronica Black, information officer with Cherish knows of cases where fathers have deliberately lost their jobs in order to avoid having to pay court ordered maintenance through attachment orders on their earnings.
The human misery of the courts may be difficult to grasp for general public, who have no clear picture of what goes on there, but as you listen to accounts of certain judgments the picture may appear somewhat chaotic. "There have been some exceptional cases where mothers have been ordered by the court to put children on buses going into town and the spouse is not there to meet them," says Ms McLoughlin. "There have been nine and 10 year old children put on buses to come home in the evening to places like Darndale and Coolock, which are high crime areas.
FAMILY Law cases are held in camera and most of these come before the district court, where very large numbers are not legally represented, Ms Dunne points out. Parents in crisis try to negotiate their own way through the district court system, issuing their own summonses.
"Parents should seek advice because custody and access are so important," says Ms Dunne. "But civil legal aid is frightfully inadequate and it is difficult to get represented. Children are suffering as a result of inadequate resources."
Parents may become overly emotional in court and feel that their needs are not being listened to. "Some of the judges, barristers and solicitors do not have the counselling skills to mediate in families," says Ms McLoughlin. "The attitude is: `you are going to do this or that and that's it' . . . If you refuse to agree to access, they think that you are being a hitch or a sod because you just don't want the other parent to have access."
In other cases, the child's access to both its parents - which is what access is really all about - is not the issue at all. Fathers may apply for access out of revenge and then lose interest. Mothers may play the system by being awarded maintenance from the father plus lone parents' allowance, which is possible because there is no co ordination between the courts and the social welfare system, says Ms Dunne. Alternatively mothers may apply for maintenance and then drop it when the child's father applies for access.
There has also been concern about sexual abuse cases where one parent's allegations against another have been proven. Sometimes, false accusations are used as particularly weapons in the battle, according to Dunne. Where false allegations of sexy abuse are made the court, in the interest of the child, must take these into account until the appropriate investigations have taken place.
But what happens when the allegations are well founded? Then, it is the parent's job to convince the court that their child is at risk when in the company of the other parent but, according to Parents Alone, many such parents' feel that they are fighting a losing battle. Of particular concern is the fact that many parents are not legally represented and cannot afford expert witnesses to argue on their behalf.
Whether a parent has legal representation or not, it is up to the court's subjective judgment to decide whether or not it is safe to grant a parent access to a child. Our society has become so acutely conscious of the psychological harm which can occur when a child is separated from a parent, that access to both parents is now seen as the best strategy and is applied virtually universally. Yet marriages break down often because one of the partners has serious problems. When such parents are given access, are children being put at risk for the sake of political correctness?
Will we have to wait until the next century for such children, even if they are only a tiny minority, to grow up and tell us what really happened to them, just as we are now listening to the testimony of children who grew up in some orphanages?
The tide may gradually be turning however.
Already, "joint custody" is being practised less and less. The idea that a would be split between two homes and two parents may have seemed "fair" to the parents when introduced, but is it fair to the child? Today, psychologists and judges - now accept that it is not fair and that children need one home in order to feel secure.
Perhaps it is time that we also question the value of the non custodial parent having "access" in all cases. At the very least, we should be assessing parents' ability to handle access in a psychologically constructive way for the child. But due to lack of resources, social workers and probation officers are generally not available to check out the backgrounds of parents who are being granted access or to supervise the access where this is necessary.
Parents Alone has supervised access in some cases, although it does not like doing so. "Unqualified people are supervising access situations which has the potential to be quite dangerous," says Ms McLoughlin.
PSYCHOLOGICAL treachery can be as harmful in the long term as the threat of physical violence. Ms Dunne sees four main types of parents in family law cases. "The Whingey Whimperer" is the mother who feels abandoned and inadequate and puts all her energy into negativity. "The Brazen Father" is arrogant and rude, an attitude which sometimes hides the tears. "The Glacier" is the very efficient, cold parent of either gender whose coldness sometimes hides caring and hurt. Most common, however, is probably "The Point Scorer" the parent of either gender who is only interested in scoring points off the other parent and doesn't care what effect this behaviour has on the children or anyone else including grandparents, uncles and aunts and others in the extended family.
All of these types usually cannot wait to get into the witness box to tell the world how terrible their partner is. Once they have vented their spleen, they may suddenly be able to settle the case.
After the court has decided on access arrangements, however, parents may use these court orders to continue the battle among themselves, further harming their children. Parents may deliberately sabotage access orders, forgetting that "access" is actually about the child's access to the parent, not the parent's rights over the child.
For example, a parent granted access on a Saturday, may fail to turn up at all, despite the fact that the children are dressed and waiting. Or the parent might show up two hours late to collect the children, destroying the plans of his or her former partner. Returning children late from access is a weapon quite often used by the non custodial parent.
Perhaps worst of all, is the way parents punish their children who refuse to take sides. A child who happily returns from an enjoyable day with a non custodial parent, may be punished by the other parent who refuses to let the child go to the cinema or to avail of some other treat which has already been promised. Fathers, who are usually the economically strong parent, may use the children in games of psychological manipulation, saying things like "I'd take you on holiday to Spain but your mother won't let me." Alternatively, one partner may show off to the other by taking the children on a once in a lifetime trip - Ms Dunne calls it "the exotic holiday syndrome".
HOW does one clear a sane path through all this pain? If we in the Republic can find a way to prevent parents from tearing their children apart in "tugs of love", we will be breaking new ground. However, one thing which the Government could do tomorrow to change the whole picture would be to provide adequate free legal aid for those who need it and to fund more social workers and probation officers to investigate circumstances in family law cases so that children are not unintentionally put at risk.