In the eye of a divorce storm: examining the modern challenge for Irish schools educating children of divorced and separated families

Abstract

The rising divorce rate in Irish society has consequences which are resonating beyond the family, and schools can find themselves caught in the eye of the storm, having to communicate with parents in conflict over the custody of their children. This article considers the obligations on schools in such a situation, in the context Irish family law, the education rights of parents and the ‘partnership’ approach now central in Irish education law and policy. It also explores the potential liability of schools with respect to the issue of parental child abduction.

Keywords:

• school
• divorce
• communication
• abduction
• liability

Notes

1. For the purposes of this article, any reference to ‘school’ or ‘schools’ refers to primary schools.

2. Numerous judicial decisions have found that once a separation agreement is in place, the parties cannot apply for ancillary reliefs normally available pursuant to the Judicial Separation and Family Law Reform Act 1989: Courtney v. Courtney [1923] 2 IR 31; K. v. K. [1988] IR 161; F. v. F. [1985] 2 IR 354; PO'D v. AO'D [1998] 1 ILRM 543.

3. See TF v. Ireland [1995] 1 IR 321, at 342.

4. Collaborative law is a form of negotiation using creative problem solving to bring about a settlement between the parties. This is distinguishable from standard negotiation in that the advising solicitors are not permitted to act in any ensuing litigation in the matter should the collaborative process fail.

5. ‘Proper provision’ for a spouse and child is required to be met before a decree of divorce can be granted by the court, pursuant to Article 41.3.2(iii) of the Constitution.

6. See ss. 5 and 6 of the Family Law Act 1995, and ss. 6 and 7 of the Family Law (Divorce) Act 1996.

7. Judge Finlay held, in Kent County Council v. CS [1985] 4 ILRM 292 at 296, that where a child is a member of a family which has broken up, it is not possible any longer for the courts ‘to provide a unified right to the family to educate and bring up the child as a close united family unit’.

8. [1951] IR 1 (SC).

9. [1980] IR 32.

10. Unreported High Court, 16 April 2008.

11. [1975] IR 54.

12. High Court, unreported, 17 December 2002.

13. Burke v. Burke [1951] IR 216.

14. Re Blake decd [1955] IR 89.

15. The State (Nicolau) v. An Board Uchtala [1966] IR 567.

16. MacGiolla Phádraig's research in 2003 revealed that parental experiences of access to a class teacher were reported as 2.9 or 2.8, where measurement of accessibility was based on a 5-point scale ranging from 5 (any time) to 1 (never). Similarly, principal accessibility was reported as 2.6-2.8.

17. A standard Separation and Divorce Policy widely in use in primary schools is available at www.bunclodyns.com/pages/custody_separation.htm.

18. [2005] EWHC 2769 (Fam) Sumner J.

19. High Court, unreported, 22 October 2004.

20. [1982] 80 LGR 481.

21. Circuit Court, 20 January 2000.

22. [2004] 1 IR 497.

23. As outlined by Kilkelly (2008, 481), according to the legislation, the board of management is the body responsible in the event of a failure on the part of the school. S. 15(1) of the Education Act 1988 provides that boards of management have body corporate status, with the power to sue and be sued in their own name.