This seminar is designed to assist you to navigate the complexities in a number of key areas of family law. These include the all-important matters of co-habitation and domestic violence. The seminar will also highlight seminal case law in the area of child law and will alert you to the problems and pitfalls which you are likely to encounter in day-to-day practice.
This seminar is sponsored by Settify.
Co-Habitation: Traps for the Unwary
- The Civil Partnership and Certain Rights and Obligations of Co-Habitants Act, 2010/How the legislation differs from all previous family law legislation
- The differences between spouses and co-habitants
- Who is a “qualified cohabitant”? Who is an “economically dependent qualified co-habitant”?
- What will be regarded by a court as an “intimate and committed relationship”?
- Does a relationship cease to be an intimate relationship merely because it is no longer sexual in nature?
- Is a court likely to take the fact that the couple considered getting married into account in reaching a decision as to whether a relationship is a committed relationship? : DC v DR
- What is the appropriate test? Is it sufficient to establish that a reasonable person who knows the couple would regard them as living in a committed and intimate relationship? : DC v DR
- The qualifying period: How has the Court of Appeal interpreted section 172(5) of the legislation on the issue of whether the periods of co-habitation required under the Act can be aggregated, or must be continuous in nature? : MW v DC
- Will a court overlook periods of separation during the qualifying period? MW v DC
- What are the implications of this judgment for circumstances where there is a break in the relationship and a resumption of the relationship before it finally ends?
- Who is a financially dependent co-habitant? Is such a claimant entitled to “proper provision”?
- Claims out of the estate of a deceased co-habitant under section 194 of the legislation: Must the applicant prove financial dependence? DC v DR
- Time limits for seeking redress from the Court
- What property benefit reliefs can be sought?
- Is inherited property or property acquired before the relationship commenced and independently of any direct or indirect contribution from the other party, treated differently by the court? : DC v DR
- Pitfalls for practitioners
Child Law: A Review of Recent Developments
The constitution as originally enacted, subordinated the interests of children to that of the family. Article 42A can be seen as “re-stating the balance, acknowledging in explicit terms the individual rights of children” This section of the seminar will examine the seminal decision of the Supreme Court In the Matter of JJ. This is the first application to the Supreme Court under article 42A. It has been described as “the most important children’s rights decision of the Irish courts in the last fifteen years.” This session will examine how the court interpreted and applied article 42A. It will also examine, the constitutional standard for overriding parental decision making.
- Is parental failure to be judged by the motivation or reasoning of the parents or by the impact on the child?
- Can the threshold for state intervention be reached in respect of a single decision or must persistent parental failure be proved?
- Does the best interests principle permit the state or the court to decide what it considers to be in the best interests of the child and to substitute its decision for that of the parents?
- What implications flow from the dicta of the Court that the rights of the child are “separate and individual and that the best interests of the child are capable of independent determination”?
- Does the test for state intervention require proof of “exceptionality”?
- The point at which state intervention is required: What does “prejudicially affect safety and welfare” mean? Is it sufficient to prove that the child would be better off if a different decision were made?
- In cases where an individual decision is sought to be overridden, is the likely impact on the functioning and operation of the family a relevant consideration?
- How did the Supreme Court distinguish cases involving consent to medical treatment on behalf of a child from the position in relation to education and other decisions made by parents as primary constitutional decision makers?
- Consent to medical treatment: is this considered to be a decision in the exercise of family authority or deemed to be a decision for the child in which the rights of the child weigh heavily?
- How relevant is the question of medical consensus? What is the position in relation to a parent who follows medical advice which is in a minority but is nonetheless respectable among experts?
- The best interests test in respect of a ward who is a minor: Must the court consider “what a loving and considerate parent would do once apprised of the relevant information”? Is the “character, personality and history of the child” relevant?
- Where the failure of the parents is in respect of a “single decision” rather than a “general failure of care” does the admission to wardship result in the removal of all parental autonomy in decision making?
Domestic Violence is pervasive in all sections of Irish society. However, the advent of Covid 19 has seen a sharp increase in the number of such cases coming before our courts. This section of the seminar will refresh your knowledge of the legislation and analyse how it is working in practice. It will also examine some recent case law in this area.
The matters to be addressed include the following:
- The factors which a court is obliged to consider when deciding whether to grant or refuse a domestic violence order,
- Protection orders and safety orders: who can apply and what is the test?
- How was the category of applicant extended by the 2018 Act? Are all parties in an intimate relationship now eligible for safety and protection orders? Is there a necessity to prove that it was also a committed relationship?
- Eligibility for barring orders and interim barring orders: Is any minimum period of co-habitation required for co-habitant couples?
- Must the applicant prove that he/ she was in an intimate relationship and satisfy the requisite property test?
- Is the Court bound to make an interim barring order once the two elements of the statutory test have been satisfied? How did the court interpret this test in X v Y? What are the implications of this decision for proofs and evidentiary issues?
- Can an applicant who cannot satisfy the relevant property test apply for an emergency barring order?
- Behaviour prohibited by orders: Does the judge have the power to prohibit a respondent from following and/or communicating electronically with the applicant or dependent person/child?
- Protection against cross-examination conducted by the applicant/respondent in person: how does this work in practice?
- Can the court seek the views of the child for whom an order is sought?
- Is the court obliged to give reasons for its decision to grant or refuse an order under the legislation?
The seminar includes a short presentation by Settify.