Child Welfare Criteria
Cases
O’D. v O’D.
1976 No. 77 Sp
High Court
17 June 1976
[1976-7] I.L.R.M. 142
(Hamilton J)
This is an application brought by the plaintiff M.J. O’D. for an order that he be granted sole custody of the infants named in the title of the proceedings namely K. O’D. and M. O’D.
The plaintiff and the defendant, both Catholics, were married in the Catholic Church of S. on 6 August 1968.
The infant K. was born on 6 January 1970 and the infant M. on 14 July 1973.
The application is unusual in that both parties are presently residing in the same house at B. in the County of D. It appears however that the marriage has irretrievably broken down in that the plaintiff in these proceedings has instituted proceedings in the ecclesiastical courts for an annulment of the marriage and the defendant has instituted proceedings in this Court for a divorce a mensa et thoro.
In these proceedings I am not concerned with the allocation of blame for the break-up of the marriage save in so far as it may reflect on the suitability of either parent to have custody of the children.
When considering this matter I am obliged by the terms of s. 3 of the Guardianship of Infants Act 1964 to regard the welfare of the infants as the first and paramount consideration and ‘welfare’, in relation to the infants is defined in the said Act as comprising the religious and moral, intellectual, physical and social welfare of the infants.
To determine the course to be followed in the interests of the childrens’ welfare I must take into account all the relevant facts, relationships, claims and wishes of parents, choices and other circumstances.
The welfare of all children requires that they be raised and reared in a stable and secure family background with the assistance and love of both parents, each of whom contributes on a different plane. When a marriage breaks up this is no longer possible and irrespective of their personal differences, there is a duty on both parents to lessen in so far as possible the effect of the breakdown of their marriage on the children for whom they are both responsible.
With this in mind, the said Act provides that:
(1) Irrespective of who is awarded custody of the infants, both parents shall be guardians of the infants.
(2) The parent deprived of custody can continue to exercise the rights of a guardian and must be consulted on all matters affecting the welfare of the child.
(3) Any order as to the custody of an infant or any order affecting the welfare of an infant under s. 11 of the Act is only interlocutory in character because circumstances may change from time to time, whether due to the current position of the parents or the growing up of the child and the changes which the passage of time may bring about, not merely in the relationship of the parents to one another but in their relationship to the children and the change which may be brought about by the fortunes or health or opportunities or any of the parties concerned.
I mention this for the purpose of making it quite clear that any order made by me in this case does not enure for all time but it is purely interlocutory in nature.
I do not intend to review the evidence in this case save to say I reject as utterly unfounded any suggestion of impropriety in the relationship of the plaintiff with any of the ladies mentioned in the defendant’s affidavit on the course of the evidence.
As I indicated during the course of submissions made to me by counsel, I consider both these parents perfectly suitable to have custody of these two infant children and that the welfare of the children would be well served in the custody of either parent.
It seems to me to be generally accepted that where a husband and wife have parted but are equally suitable to have custody of a child or children, children of tender years should be left in the custody of the mother while they are of an age where they naturally turn to their mother for the care and attention which she naturally provides for them and which the father cannot so readily supply, and that the removal of children of a very young age from the custody of their mother is only justified when it has been found that the mother had been so greatly wanting in her duty to her children that the removal would be warranted.
While I am perfectly satisfied that the plaintiff is very attached to the children, is concerned about their welfare, is able with the assistance of his mother, an admirable woman in every way, to look after their ordinary needs, I can find nothing in the evidence to justify me in finding that the defendant has been so greatly wanting in her duty to her children that their removal from her would be so warranted.
Consequently because of their ages, and because I am satisfied that she is a suitable person, I award custody of the two infants to their mother, the defendant herein.
The plaintiff, as father, is entitled to access and I will hear submissions in this regard.
A.B. v C.D.
[2013] IEHC 638
JUDGMENT OF MR. JUSTICE MICHAEL WHITE DELIVERED THE 21ST OF JUNE 2013
1. This is an application pursuant to s. 11 of the Guardianship of Infants Act 1964, concerning the ongoing welfare of the two daughters of the parties. The duty of the court is to regard the welfare of the children as the first and paramount consideration.
2. The applicant is seeking a sole custody order and an order regulating access by the respondent.
3. The respondent seeks a sole custody order in respect of the children and also to have the applicant’s access to the children regulated.
4. The application was heard on the 14th, 15th, 16th, 17th and 21st January and continued on the 12th and 13th March when judgment was reserved. The Court has set out the list of witnesses in the schedule.
5. The applicant is Irish and works the family farm in partnership with his mother and is in employment working as an oil company driver. The respondent is English and has resided in Ireland for a number of years. She does not work outside the home at present. The parties married on the 12th November, 2005. There are two children of the marriage E.F. born in 2006, now just short of her 7th birthday and G.H. born in 2008, now aged 5.
6. The parties met in May 2005, the applicant moved into the respondent’s residence very shortly thereafter. They subsequently built a new family home on lands on the applicant’s family farm, and moved there in 2008.
7. Initially the parties had a good relationship. Unfortunately over a period of time difficulties arose in their marriage, the details of which are in dispute, and to which the court will return.
8. The irretrievable breakdown of the marriage occurred as a result of an incident in the family home on the evening of the 11th September 2010 and early the following morning the 12th September, 2010. On the 20th September, 2010 the respondent left the family home with the children and went to reside with her parents in the United Kingdom. The children of the marriage were removed from the Republic of Ireland without the consent of the applicant. In the United Kingdom a complaint was made by the respondent to the authorities, alleging sexual abuse by the applicant of his eldest daughter E.F. Certain investigations were carried out in the United Kingdom, evidence of which was heard by the court.
9. The applicant commenced Hague Convention proceedings in the United Kingdom. On the 1st February, 2011, the respondent undertook to return to Ireland with the children subject to certain conditions. She returned to Ireland on the 19th February, 2011. The applicant vacated the family home and the respondent has been living there with the children since that date.
10. The applicant did not have any access to the children from September 2010 to March 2011. The access was supervised from March 2011 to March 2012 when it became unsupervised. At present the applicant has access to the children on three periods a week but does not exercise overnight access.
Difficulties in the Marriage
11. Both parties agree their relationship started well but difficulties emerged. The applicant accepted in evidence that prior to his marriage he had used sex chat lines as a form of escapism. He accepted he had recommenced this activity during the marriage. The respondent had discovered this and was very upset leading to a lot of arguments.
12. The applicant accepted he watched adult pornography on occasion but did not have any addiction to it. He stated that both himself and the respondent watched it together on occasion. The respondent gave evidence that the applicant watched pornography frequently and she watched on only one occasion and did not approve of it.
13. Both parties accepted there were difficulties during the pregnancies. The respondent was not well at times and this led to tensions between them. Subsequent to the birth of the children the respondent required medical treatment which impinged on her ability to have further children.
14. The applicant denied he had been physically abusive to the respondent or that he had threatened her. The respondent alleged that he had been verbally abusive to her on a number of occasions. In her direct evidence she did not refer to physical abuse, but has referred to it in some of the reports, and in cross examination.
15. Difficulties emerged as a result of the respondent’s business. She ran a fashion boutique business which expanded to a second premises. Considerable debt arose which was of concern to the applicant. There were numerous arguments about the business which closed down with substantial debts. The applicant alleged the respondent would not face up to the financial difficulties. The respondent alleges the applicant forced her to close down the business prematurely.
16. There were personality clashes which ultimately led to the serious argument on the evening of the 11th September, 2010. The applicant considered the respondent to be outspoken and prone to discuss matters in public which he considered private. The respondent considered his criticism of her as controlling behaviour.
17. The respondent has alleged when the applicant drank to excess he was verbally abusive to her. In the parenting assessment of the applicant prepared by the HSE, he denied a drink problem but accepted on occasions he accidentally urinated on the couch as a result of intoxication.
18. There were escalating difficulties in their marriage. This court does not believe the applicant was physically violent to the respondent. The court accepts the respondent was not tolerant of the applicant watching adult pornography.
19. The respondent did not properly address the difficulties in her business which caused frustration on the part of the applicant.
20. The court readily understands the respondent’s shock and dismay on discovering the applicant’s use of sex chat lines. The applicant, while mainly social, was difficult on those occasions when he drank alcohol to excess.
The September 11tb, 2010 Incident
21. The parties went out for a meal and to a licensed premises on the evening of the 11th September 2010. A disagreement developed about the respondent informing a friend, she did not want to have any more children. The applicant claims the respondent had never discussed this with him. There was a heated argument between them. The respondent has described the incident in much more serious terms.
22. This court is satisfied the applicant has minimised the nature of his behaviour in the family home on that night and the following morning. The court regards the respondent’s mother as a credible witness. The applicant was loud, threatening and abusive to such an extent that the respondent was in fear and appropriately called An Garda Síochána. The court is satisfied he had taken alcohol to excess. The respondent and her parents were quite traumatised by this incident. His behaviour was unacceptable and the court does not accept the respondent or her father contributed to this behaviour.
The September 12th, 2010 incident
23. The respondent’s mother awoke at 7 a.m. on the 12th September, 2010. She was in a downstairs bedroom. Her husband was not present in the room. He subsequently came into the room and sought a camera. He said certain things to the respondent’s mother and left the room again. He came back into the bedroom with the camera, put it down and went into the toilet and she heard him getting sick. He then left the room again and, although she did not see him turn off the television, she heard E.F. say “I was watching that”. He then returned to the bedroom and asked the respondent’s mother to switch on the television again for cartoons for E.F.. At that time the applicant was in the lounge with E.F. The court is satisfied from the respondent’s mother’s evidence and the evidence of the respondent, that when the respondent came downstairs at approximately 8 am, the applicant was still present in the lounge and as soon as he saw the respondent he left the lounge and went upstairs. The court does not accept the applicant’s evidence that he went upstairs to bed before the children came down. The respondent’s father has not given evidence to this court nor has any photograph been produced. An incident occurred arising out of which the respondent’s mother became concerned that E.F. was watching inappropriate pornographic images on the television, and the applicant was present in the room when this was happening.
The respondent’s decision to leave the family home and leave the jurisdiction
24. The court accepts the evidence of the respondent that she was not told of this incident by her parents at that time but was subsequently telephoned a number of days later. From the date of receipt of the information and encouraged by her father, the respondent decided to plan to leave the family home and to go to the United Kingdom, with the children, to the home of her parents. This was done without the knowledge or consent of the applicant. This court believes it was a rash and inappropriate decision on the part of the respondent despite her concerns.
25. On arrival in the UK on the following day, the 21st September, 2010, the respondent made a complaint to the Police Service in the local area about the alleged incident in Ireland on the 12th September, 2010. The Police and Social Services were involved.
26. Two introductory meetings were organised where E.F. was asked some general questions to assess her ability to conduct an interview.
27. Both the respondent and her mother described an incident in the respondent’s family home in the UK, on the 28th September, 2010. The respondent’s mother told the court she was with the respondent in her living room when a video was played for E.F. She was pulling at her trousers and had a toy bunch of grapes. The respondent took her to the toilet and when she came back she called her mother. E.F. had her trousers off and she wanted to take off her underwear and the respondent was very upset.
28. The respondent stated she took E.F. to the toilet. She wanted to put a plastic bunch of grapes “up her bum and in her fanny”, which she tried to do but the respondent told her she could not do it. She wanted to take off her jeans and put the grapes down the front of her underwear, and to take her underwear off. Back in the living room she got the bunch of grapes and was using them in an “in and out motion” and said she was “servicing or bettering her fanny” and that “Daddy had done that to her up the hill”. She had put back on her underwear and jeans and then asked for water. She dipped the bunch of grapes in the water. She then pulled her underwear back down and dipped the grapes in the water and bent over and placed the grapes between her leg and her vagina. The respondent said she asked her what she was doing and she stated she was trying to service her fanny.
29. The first orientation meeting at the Police Station took place on Thursday, the 23rd September, 2010. The second meeting seems to have taken place after the alleged incident of the 28th September, 2010.
30. The Police and Social Services decided to conduct an interview with E.F. on the 6th October, 2010 and this interview was recorded. The introductory meetings were not recorded.
31. In the course of that interview after the grape toy was introduced E.F. did state that “Daddy said I’d have to better my fanny”. Later in this interview the respondent was permitted to come into the interview room and to ask E.F. some questions and to encourage her. A Social Service Social Worker and a Garda Detective Sergeant both gave evidence by video link in the course of these proceedings. The interview in the main was conducted by another Police Officer J.B. In the course of his direct examination and cross examination, the Detective Sergeant stated there was no indication of coaching and he had no concern at the time the child had been coached. At the date of the interview on the 6th October, 2010 E.F. was aged 4 years and 3 months.
32. The respondent also stated subsequently G.H. had disclosed certain matters to her which indicated she had been sexually assaulted also. The court does not regard that evidence as credible.
33. On her return from the UK with the children, and during the course of the period of supervised access, an issue has arisen as to the respondent’s alleged attempt to alienate the children from the applicant. The respondent has denied this in cross examination, blaming inaccuracies in the reports and her father. The court does not want to get into detail about the various incidents but from reports from Springboard staff and the various expert reports, the court has no doubt the respondent was engaged in alienating the children from the applicant.
34. The respondent also formed strong views about the applicant’s alleged involvement in a paedophile ring. Those views have no basis in fact.
35. The court has serious concerns about the reliability of the evidence of the respondent about a number of matters subsequent to her return to Ireland on the 19th February, 2011.
36. The challenge for this court is to weigh, the evidence of the respondent some of which was corroborated by the respondent’s mother about the alleged disclosure of E.F. on the 28th September, 2010. I am satisfied the respondent witnessed unusual behaviour by E.F. on the 28th September 2010, which would give any parent cause for concern. In the interview of the 6th October, 2010 E.F. did make unusual disclosures which this court would not expect from a child of that age.
37. The entrance of the respondent to the interview on the 6th October, 2010, and her participation in it, compromised the interview process.
38. Subsequent to her return to Ireland, while E.F. was not interviewed again or reassessed again about the disclosures, the court notes she and G.H. bonded well with the applicant again.
39. Because of the evidence of the respondent’s mother, the evidence of the Detective Sergeant and aspects of the interview of the 6th October 2010, this court is satisfied this was not a conspiracy as alleged by the applicant of the respondent and her father to deprive him of custody of the children by removal to England and the use of false allegations of sexual abuse to further that aim.
40. There were objective grounds for concern in this case, however the evidence falls way short of what the court would consider an appropriate standard of Proof. This court does not consider it in the interests of the children to leave any uncertainty on the issue.
41. In view of the detailed assessments carried out since the return of the children to Ireland including the Parental Assessment Reports by the HSE, the Psychiatric Assessments and the s. 47 Report, the court is of the view there should be an attempt at a fresh start.
42. The respondent is a very attentive parent to the children and has their best interests at heart. She has engaged in destructive behaviour in undermining the applicant to the children and that has to cease.
43. The applicant should acknowledge the destructive role he played in the breakdown of his relationship with the respondent. His use of sex chat lines, watching pornography and on occasion anti social drinking are matters which he is personally responsible for and which undermined their relationship. His behaviour on the night of the 11th and morning of the 12th September, 2010 was unacceptable. This court does not consider it appropriate to vest sole custody in him.
44. The appropriate order is joint custody with access developed in accordance with a parenting programme. This court has no objection to overnight access by the applicant, but it should be phased in over a period of time with the assistance of expert help.
45. The court suggests the parties move as soon as practical to a custody and access arrangement where the applicant has custody every alternative weekend from Saturday morning to Sunday night together with regular visitation during the week, and on the other weekend visitation on either a Saturday or Sunday with the option to the applicant to have a number of weekends in the year where he has exclusive custody.
F.N. v B.O’B
[2019] IEHC 413 JUDGMENT of Mr. Justice Meenan delivered on the 8th day of March, 2019
Background
1. The applicant was lawfully married to the respondent on 24 August 2007, she was granted a decree of judicial separation on 6 December 2010 and obtained a decree of divorce in the High Court on 15 April 2016.
2. There were three children of the marriage, A (born 2001), B (born 2004) and C (born 2008). Following a conviction for theft and deception, the respondent was given a prison sentence of seven and half years in 2014 and was released under licence in 2018.
3. In the course of the family law proceedings in the High Court a number of orders were made. Firstly, by order of 7 February 2014, the High Court ordered that the respondent would have access to two of the children on certain terms. It was further ordered that Professor Sheehan would meet with A to assist both the respondent and A re-establish a relationship so as to provide for access appropriate to A’s stage of life.
4. By further order of the High Court, dated 6 October 2014, it was ordered, inter alia , that the respondent’s current access arrangements in respect of the children continue pending further court order without prejudice to any order which may be made in respect of the respondent’s access in the District Court and an order remitting any issues relating to access rights to the Dublin Metropolitan District Court.
5. Prior to his release from prison, the respondent brought an application pursuant to s. 11 of the Guardianship of Infants Act (the Act of 1964) in respect of the children’s schooling and education. An order was made in respect of this by the District Court on 9 January 2018.
6. The respondent brought a further application to the District Court pursuant to s. 18A(1) of the Act of 1964 seeking an enforcement order in respect of the orders of the High Court as regards access. This application came on for hearing on 13 July 2017 and the District Judge made an order striking out the respondent’s application as “the District Court did not have jurisdiction to deal with the matter.” The respondent appealed this order of the District Court.
7. The appeal came before the Dublin Circuit Family Court on 6 February 2018 wherein counsel on behalf of the applicant informed the Circuit Court Judge that the court did not have jurisdiction to deal with the appeal. The Circuit Court Judge, however, refused to accept this. Further, the Circuit Court Judge made an order under s. 47 of the Family Law Act 1995 (the Act of 1995) appointing Ms. Caoimhe Ní Domhnaill to carry out a s. 47 report. The matter was adjourned for mention to 23 February 2018.
8. On 23 February 2018 the Circuit Judge indicated that the court had been informed that Ms. Ní Domhnaill did not have the capacity to deal with the preparation of a s. 47 report. The court did, however, make an order appointing Professor Jim Sheehan to prepare the report.
Judicial review proceedings
9. On 11 June 2018 the applicant was granted leave to apply by way of an application for judicial review for certain reliefs. These reliefs were: –
“(a) An order of certiorari quashing the entire of the order of the Dublin Circuit Family Court made on 23rd February, 2018 pursuant to s. 47 of the Family Act, 1995.
(b) If necessary, an order extending the time for the institution of the judicial review proceedings.”
Relevant statutory provisions
10. Order 84, rule 21(3) of the Rules of the Superior Court (“the Rules”) provides:-
“Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that: —
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either –
(i) were outside the control of,
(ii) could not reasonable have been anticipated by the applicant for such extension.”
11. Section 18A (1) of the Act of 1964 provides: –
“(1) A guardian or parent of a child who has been —
(a) granted, by order of the court made under this Act, custody of, or access to, that child, and
(b) unreasonably denied such custody or access by another guardian or parent of that child,
may apply to the court for an order (“enforcement order”) under this section.
12. Section 47 of the Act of 1995 provides: –
“(1) In proceedings to which this section applies, the court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from—
…
(6) Subsection (1) applies to proceedings—
(a) under the Act of 1964”
Consideration of issues
13. The application for judicial review was made some two and half weeks outside the three-month time limit provided for by the Rules. The Court, however, has the jurisdiction to extend time for the making of this application, as per Order 84, rule 21(3) of the Rules. The circumstances which gave rise to the delays are set out in an affidavit of the applicant dated 19 December 2018. At that time the applicant was represented by a different firm of solicitors than are currently representing her. The applicant informed her then solicitors of her concerns about a report to be prepared by Professor Sheehan and asked them what options were available to her. The applicant also asked them to consider getting advice from a specialist family law barrister. Notwithstanding this request, the applicant’s former solicitors did not come back to her with the necessary information.
14. The applicant states that she was entirely unaware that it was possible for her to challenge the making of the order of 23 February 2018, directing preparation of a s. 47 report, by way of judicial review application. The applicant, not having received a response from her former solicitors, contacted her current solicitors on 5 June 2018 who informed her of the possibility to bring an application for judicial review. In the interim, the applicant met with Professor Sheehan in circumstances where she was anxious not to be in breach of a court order.
15. Seeking an extension of time Mr. Mark de Blacam S.C., on behalf of the applicant, submitted that the delay, short as it was, was due to circumstances outside the control of the applicant. She had, correctly, sought legal advice as to what her options were following the order of the Circuit Court on 23 February 2018 but had received no response. He further submitted that an extension of time would not cause any prejudice to the respondent.
16. The respondent, who appeared in person, submitted that by meeting Professor Sheehan on 29 May 2018 the applicant was, in effect, estopped from seeking to judicially review the order of the Circuit Court to direct the preparation of a s. 47 report.
17. I am satisfied that the applicant has shown “good and sufficient reason” to extend time. The failure to make the application within the time allowed by the Rules arose out of a failure on the part of the applicant’s previous solicitors to give the advice which she had sought. The applicant, presumably, would only have sought this advice if she were minded to contest the order for a s. 47 report. In this context, I do not believe that meeting Professor Sheehan on 29 May 2018, whilst awaiting legal advice, constitutes an estoppel as against the applicant. Further, having sought legal advice without response from her former solicitors, the applicant made contact with her current solicitors on 5 June 2018. These facts, to my mind, constitute circumstances “outside the control” of the applicant. Further, I cannot see that any prejudice would accrue to the respondent by extending time for the purposes of making this application.
18. The second issue is the respondent’s application under s. 18 of the Act of 1964 to seek enforcement of an order “of the court made under this Act”. The orders which the respondent claims were breached were orders not of the District Court but of the High Court. Thus any proceedings in respect of an alleged breach of those orders should have been taken in the High Court not the District Court. Though it is correct that the orders of the High Court did remit to the Dublin Metropolitan District Court “any issues relating to access rights” I am not satisfied that this covered a breach of the order as alleged by the respondent.
19. It is the case that a court can be given jurisdiction to provide for methods of enforcement of the orders of another court, for example making an instalment order where a judgment has been granted. Such, however, are expressly provided for by statute. This is not the case here. Therefore, in my view, the District Court was correct in declining to hear the respondent’s application under s. 18A(1) of the Act of 1964 due to the lack of jurisdiction. The Circuit Court ought to have refused the appeal of the respondent.
20. As the respondent’s application was not properly before the District Court the appeal that followed was not properly before the Circuit Court and it follows, to my mind, that the Circuit Court Judge did not have jurisdiction to direct a report under s. 47 of the Act of 1995.
Conclusion
21. By reason of the foregoing, I will grant the reliefs sought by the applicant.
LK v MM
[2015] IEHC 840
JUDGMENT of Mr. Justice Abbott delivered on the 6th day of November, 2015
1. This judgment relates to a notice of appeal served by the respondent of an order of the Circuit Court dated the 31st July, 2014. The first named applicant issued a notice of motion directing that an updated report, under s.47 of the Family Law Act, 1995 [hereinafter referred to as a “s.47 report”], be prepared by Ms. N.D. The respondent/appellant opposed this, and submits that a new report should be made by an independent assessor, as the assessor used in the Circuit Court was biased against him.
2. The applicants/respondents in this case are the testamentary guardians of a child who was born in 2003. The second named applicant/respondent, however, has stated that she intends to have no further involvement in the matter. The respondent/appellant, Mr. M., is the child’s natural father. He was in a relationship with the child’s mother that ended soon after his birth. The child’s mother then began a relationship with the first named respondent, Mr. K., in 2006. The child was 3 at this time and formed an attachment to Mr. K.. The child lived primarily with his mother and the first named applicant/respondent from 2006 until the time of his mothers death in 2012. The child’s mother appointed her own mother Mrs. C., the second named applicant/respondent, and Mr. K., as testamentary guardians of the child.
3. Following the sad passing of the child’s mother, a dispute arose in relation to custody, access and guardianship. This dispute resulted in the Circuit Court, in 2012, directing that a s. 47 report be prepared in relation to the child E., by Dr. B., to assist the Court in deciding what living arrangements were in the child’s best interests. The parties entered a settlement agreement on foot of the recommendations made in this report in relation to custody, access and guardianship on the 13th November, 2012. This agreement set out that Mr. K would have sole custody of the child E. with the second named applicant and the respondent/appellant (natural father) having regular access with the child. Recently however the situation between the parties has become strained and the respondent/appellant brought an application on the 17th December, 2013, for directions regarding the welfare of the child, in particular he sought greater access with the child. The Circuit Court directed that a s. 47 report be prepared, this was done by Ms. N.D. and the report was furnished to the Circuit Court on the 13th June, 2014. On the 17th June, 2014, the respondent/appellant (natural father) issued a motion seeking sole custody of the child. This motion was heard in the Circuit Court in June, 2014. The parties and Ms. N.D. (the s. 47 assessor) gave evidence.
4. Her Honour Judge Murphy provided a full written judgment in the Circuit Court, in relation to the application made by the respondent/appellant for full custody of the child. She awarded custody of the child to the first named applicant/respondent and provided the natural father and second named applicant/respondent with access rights in relation to the child. Importantly in this judgment, Judge Murphy assessed the allegation of bias submitted by counsel for the respondent/appellant, in relation to the author of the s. 47 report. She found that there was no such bias, and considered the report favourable to both parties and fair in its assessment.
5. The respondent/appellant (natural father) served a notice of appeal in relation to the decision of the Circuit Court. In light of this, difficulties have arisen in relation to the access arrangement currently in place. The applicant/respondent’s solicitors wrote to the respondent/appellant in relation to Ms. N.D. preparing an updated s. 47 report. However, the respondent/appellant is not agreeable to this, as he outlined that Ms. N.D. was biased against him in formulating the original report. The respondent/appellant submits that Ms. N.D. stated in her evidence that “even if the M. family were perfect in all respects, I still would not have recommended that Mr. M. be granted sole custody of [the child]”. He further submits that she that acknowledged she was incorrect in this assessment, and outlines the reason for this to be that she got emotional in the court setting. The solicitor for the applicants denies that Ms. N.D. made a statement in relation to becoming emotional in the court setting. Additionally, it is submitted that the respondent ignores the lengthy explanation provided by Ms. N.D., in this assessment encompassing many factors including the child’s own view. He further submits that it is unfair to subject the child to have a further full s. 47 report, as this will be the third he will have had to engage with in the past 4 years. It is submitted by the applicants that Ms. N.D. is best placed to carry out the updated report, as she has significant previous knowledge of the case. It is therefore submitted that Ms. N.D. carrying out the report would save the strain on the child of another full report, carried out by a further expert.
The Hearing
6. The hearing proceeded on the basis of the affidavits, filed on behalf of both parties, being opened. These dealt with the respondent/appellant’s allegations of bias and his claims that the applicants/respondent’s (Mr. K’s.) claim for an updated s. 47 report, should be refused.
7. Counsel for the applicant/respondent submitted that the position in relation to alleged bias by the s.47 expert ought to be considered in the light of the parallel jurisprudence of which the leading case was Ryanair v . Limited v Terravision London Finance Limited [2011] IEHC 244, (unreported 30th June, 2011). The judgement, of Fennelly J., in that case related to the criteria for establishing objective bias on the part of a judge sought to be prevented from hearing a case. She submitted that the suggested bias of the s. 47 expert fell far short of meeting these criteria, and, in any event, the position of the s. 47 expert should be considered in the light of the Supreme Court judgement analysing the role of s. 47 experts in G.McD. v. P. L. and B.M. [2010] 2 IR 199.
8. Counsel for the respondent/appellant submitted that the offending statement of the s. 47 report reporter clearly indicated bias, such that the respondent/appellant could have no confidence in her, and that furthermore the Court could not be justified in continuing her appointment as an independent expert under s. 47. He cited the practice of this Court and of the Circuit Court in relation to the replacement of s. 47 reporters, and stated that the approach should be to pose the question (asked by one Circuit Court judge experienced in family law) as to whether the parties “could have confidence in the procedure going ahead”.
The Facts
9. The statement of evidence which is claimed to give rise to bias on the part of the s. 47 expert is as follows:-
“even if the M. family were perfect in all respects I would not have recommended that Mr. M. be granted sole custody of E.”
10. The Court is of the view that this statement is a means of indicating the weight which the witness attached to the factors relied upon by her, to come to the opinion that the respondent/appellant should not be granted sole custody of the child. It represents, in verbal terms, a summary of a hypothetical situation being an improvement on the picture presented in the evidence of the respondent/appellant’s situation, and an indication that these hypothetical improvements would not change her opinion. In doing so, the s. 47 reporter engages in nothing more than a literary exercise used by the courts in judgements to outline, by way of comparisons, the weight to be attached to various criteria directed by statute or regulation to be considered by the Court when making a decision.
The Law
11. Section 16 to of the Act of 1995 provides in paragraphs a-l matters which require consideration by the Court when making provision in judicial separation. Sometimes to indicate the relative weight given to the various factors, the judgment may state the parameters over which they operate. If the Court is inclined to impute earning power to a provider who has refused to work or to provide an account vouching of his earnings the Court might indicate parameters over which such an imputation could, realistically, be made. The offending statement of evidence by the reporter, while couched in extreme terms, is nothing more than an expression of the weight to be attached to the opinion of the s. 47 reporter, when tested against other,- and better outcomes for the respondent/appellant. The fact that the statement represented the extreme end of such weighting or comparison was suggestive of hyperbole, is only a means of adding emphasis to the opinion of the expert. The fact that the s. 47 reporter qualified her statement, and thus explained the context of her statement the reasons for her statement therefore shows that far from being a biased witness, she was prepared to consider queries and criticism and respond honestly and in a way that sought to clarify her independence from the conflict of the parties. This Court considers that it was not necessary for her to do so, bearing in mind the Courts understanding of her weighting technique described above.
12. The role of the expert psychiatrist in custody proceedings was considered by the Supreme Court in L.(D). v. T.(D). [1998] IESC 40 (9th November, 1998). In that case one of the grounds of appeal was that in the preparation of the report, the psychiatrist had gathered evidence from the father which had not been put to the mother and that the mother had not been afforded the opportunity to give evidence in relation thereto. Murphy J. pointed out that while the psychiatrist was involved in some extent in the gathering of facts and opinions of relevant persons, he was in no sense determining those matters. He said that the procedures adopted by such a person are not comparable to those of the Court and are not reviewed in accordance with criteria appropriate for the courts. The purpose of the report was to show the manner in which the judge went on to make helpful comments in relation to the assessment of the evidence of the expert in the circumstances, in which substantial failings of the expert, in his professional discipline could lead the Court to rejecting the opinion, of the expert or seeking the expert to make further investigation, or further considered opinion in the light of the court experience. The role of the s.47 reporter and their reports was considered by the Supreme Court again in G.McD. v. P.L. and B.M. at p. 466. The applicant in this case was a homosexual man who had donated sperm under agreement with the first named respondent to have a child by means of artificial insemination so that she and her female partner (the second named respondent) could have a family. The first and second named respondents proposed to move to Australia and I heard the interim and interlocutory application to restrain them from bringing the child to Australia. I made an order restraining the respondents from removing the child from the jurisdiction and ordered that a s.47 report be prepared. The plenary hearing of the matter took place before Hedigan J., he placed considerable weight on the s.47 report and held after lengthy discussion that the Court should depart from the recommendations of the s.47 report only for “grave reasons” which should be clearly set out. Hedigan J. thus set a very high standard for deviating from the terms of a s.47 report. The order of Hedigan J., permitting the child to be removed to Australia without any order for access being made in favour of the applicant, was appealed to the Supreme Court. The approach of the Supreme Court was that undue weight was given by the trial judge to the s.47 report, Murray C.J. stated:-
“I agree that the ordinary rules of evidence concerning such a report should apply. A trial judge must be free, for stated reasons, to depart in his or her findings from evidence contained in such a report either because there is other more persuasive evidence or because he or she is not sufficiently persuaded by the report as to the correctness of a particular fact or conclusion in it”.
Denham J. stressed that the Court was not obliged to accept a s.47 report, and added that any such application would erode the courts decision making role:-
“The person writing the report remains an expert giving his or her opinion to the court. The report is produced to assist the Court while it is a matter to be weighed in all the circumstances or case, it should not as a mandatory matter be accorded great weight. A court is neither obliged to accept the report, nor is it required to expressly specify its reasons for non acceptance of the report. The report should be considered carefully, by the trial judge, together with all the factors and circumstances of the case, and it may assist the trial judge in determining what is the best interests of the child, whose welfare is the paramount consideration.
In this case the learned trial judge erred in determining that a s.47 report should be given great weight. Further, the learned trial judge erred in determining the [s.]47 report should be accepted, as a mandatory matter, save for grave reasons, which the court should set out clearly. Such an approach is erroneous and would alter the role of the court, the court is the decision maker. The court is required to consider all the circumstances and evidence. The s.47 report is part of the evidence to be considered by the court. It is for the court to determine, in accordance with the law, what is in the best interest of the child, the paramount consideration being the welfare of the child in determining issues such as access and guardianship.”
13. In the case A.B. v. C.D. [2011] IEHC 543 (unreported, 26th July, 2011), I took the view that the disqualification of the first six experts appointed by the Court at the instigation of the mother was wrongful, following the principles of the judgment of Murphy J. in L.D. v. T.D. although not specifically referring to that decision. During the course of the hearing which commenced in 2008, it is noted (in the end of the judgment referred to as the “reflection”) paras. 107-111 on pp. 92-956 inclusive and further on in relation to suggested standards for the monitoring and use of s.47 reports arising form the extensive enquiries and experience made by the Court in that case under paras. 1-19 pp.94-103 of that report, I also followed and made use of the judgment of Murphy J. in deciding I. v. I. [2011] IEHC 411 (unreported, 8th July, 2011). In that case custody issues arose, and in particular a question arose whether the child would attend a particular school and whether he would mainly reside with his mother. The hearing spanned the closing days of July to January, 2011, and involved an interlocutory order allowing the child to go to school with his father subject to a review at the full hearing. It is instructive to repeat para. 9 of the judgment which related to a cross examination of the s.47 reporter Ms. N.D.
“Ms. [N.D.] was cross examined by Mr. Kavanagh S.C., who appeared for the mother, and by whom the approach taken was to seek to challenge the credibility of Ms. [N.D.] This approach had occurred in the Circuit Court and was reinforced by an application to have Ms. [N.D.] disqualified as a s.47 expert in this case. This application had been refused in the Circuit Court and that order was not appealed. The tactic was to establish complaints of the mother against the father to be true, and complaints by the father against the mother to be untrue. In relation to the latter, sample “allegations” by the father were first that the mother had post-natal depression giving rise to problems after the birth of D.N., and second that she had suffered sexual abuse when young. The latter allegation consisted only of the fact that father had said (in Ms. [N.D’s.] account of her interviews with the parties) that the mother had told him so. Ms. N.D. readily conceded that if her opinion on the strategy for care of D.N., were based on wrong conclusions in relation to the facts upon which such opinions were based, then her opinion was incorrect and should be reviewed. It was then sought to link the incorrectness of the various allegations, (for instance the post natal depression (P.N.D.) and sexual abuse (S.A.)) into this framework and it was suggested that if Ms. [N.D.] was wrong about these facts, then her opinion was wrong. This approach to cross examination did not cease notwithstanding that at an early stage I protested as trial judge that Ms. [N.D.] had set out the status of many of the “allegations” made by each of the parties in the preliminary interviews as irrelevant to her opinion for the reason set out in her conclusions as described above in this judgment. The Court also drew to the attention of mother’s representatives the judgment of Murphy J. in L.D. v. T.D. (unreported 9th November, 1998) where it was held that an expert such as a psychologist or psychiatrist preparing a social report should not act as a judge in resolving conflict of fact – a function which is the sole prerogative of the court. Notwithstanding these admonitions the representatives of the mother continued on with this style of cross examination in what became and attritional process, not only in relation to Ms. [N.D.], but the other s.47 reporter Dr. McQuaid, and father when he gave evidence. I found that Ms. N.D. gave credible evidence and where it was shown she may have been inaccurate in noting facts or incorrect in her conclusion she was prepared to alter her opinion and I found that there was no reason to be other than convinced that she was perfectly competent and highly expert in dealing with the case.”
14. I have had the benefit of considering an article by Claire Hogan B.L. and Sinead Kelly, solicitor, titled “Section 47 reports in family law proceedings: Purpose, evidential weight and proposals for reform”, [2011] 2 IJFL at p.27, in which the two Supreme Court decisions, dealing with this issue, are discussed. I note that the paper was produced having had discussions with the Honourable Judge Margaret Heneghan (as she then was), and both Dr. Houlahan and Prof. Sheehan, persons with enormous experience in producing s.47 reports and giving evidence in court. At p. 34 of the learned authors observe the following:-
“Both Dr. Houlahan and Professor Sheehan acknowledge that in general, the Irish courts place ‘huge weight’ on the recommendations contained in [s.]47 reports. Professor Sheehan suggests that in circumstances were the court has experience of and trust particular expert appointed, it is more likely that it will endorse the recommendations contained in his/her report. However, he cautions that this ‘may not be a good thing’. He advises that in the High Court, where cases are afforded more time, judges tend to be able to tease apart the report more. However, in light of the volume of applications of cases in the Circuit Court, he notes that it is inevitable that the reports are sometimes dealt with in a more cursory manner. Overall, Professor Sheehan is of the opinion that judges accord ‘great weight’ to [s.]47 report. He hypothesises that such weight is accorded as a way of saving time in an over-stressed court system. For example, were a judge has the assistance of a detailed and useful report, he may naturally be more inclined to accept the recommendations contained therein, and to indicate to legal representatives the direction of his/or thinking and support the assessor’s view, as a way of curtailing what might otherwise be a very time consuming hearing of all the issues. ”
15. These practical observations go a long way to explain that in the Circuit Court the stressed dynamic of hearings may probably still give rise to an often uncritical acceptance of a s.47 report in certain quarters. In taking this approach Circuit Court judges maybe more amenable to disqualifying s.47 reporters, or to order second s.47 reports, on the basis that counsel for the respondent/appellant described, by saying that the judge felt that the “parties should have confidence in the system”. An examination of the reflective parts of the judgement in A.B. v. C.D. and of the entire judgment in I. v. I., has caused (certainly in so far as I would be concerned with the list in the High Court since these judgments) very few s.47 experts to be removed by reason of bias or inadequacy. I can refer to one case G. v. K. [2013] IEHC 650, in which a child proposed to be removed back from Ireland to Germany, had been examined by a s.47 reporter who heard certain complaints by the child against their mother in relation to violence. The s.47 reporter immediately referred the matter to the appropriate authorities under the “children first” principles. This approached was approved by the Circuit Court judge hearing the case, and there was much delay in having the matter processed by the Irish childcare authorities. The German authorities who referred the matter on to the German authorities who ultimately reported that the complaint was unfounded, thus considerable time was wasted. The particular s.47 reporter was not available to give evidence on a continuity basis, but, in any event, I acceded to a further application on behalf of the mother to have a further child expert appointed, and allowed a further child expert (not appointed under s.47 but retained unilaterally by the father), to give evidence.
16. Generally, as a matter of practice in running the High Court Family Law list I and the other family law judge in the High Court, follow the general guidelines suggested by the judgments of A.B. v. C.D. and I. v. I. in dealing with s.47 reports. This practice is now also generally followed by the Circuit Court, especially in Dublin. The approaches of the various judges to this task vary in detail. The experience generally seems to me that, while the courts are disposed to take care with the preparation of terms of reference for s.47 expert reports, and the protection of such experts as witnesses from abusive and vexatious cross examination, and objections including applications for removal by reason of “bias”, the approach may vary. This varied approach has to be explained by the fact that judges in their courts must be conscious of the needs of fair procedures dictated by constitutional and natural justice, as applied to the particular facts of a case. However, having witnessed the approach of the courts towards a more disciplined use of s.47 reports, to the benefit of the children and families concerned, I must concede that the reality of counsel and solicitors following the instructions of their clients is such that the broadest possible terms of reference and freedom of movement in dealing with s.47 reports is required from the outset, by both parties. The position of legal representations must be respected in this regard, leaving an ever present duty on the judiciary to be watchful to ensure that the natural dynamic for the extension of litigation does not act to hamper the true purpose of a s.47 expert, or, for that matter, unduly run up costs and conflict for the families concerned.
17. While the Supreme Court judgments clearly indicate that the s.47 reporter is not the person who is determinative of any finding in a family law proceeding and may be treated during the course of the hearing like any other witness, the experience of the courts is that in other respects s.47 reporters are not like any other witness. Normally expert witnesses in “non family law” cases prepare their reports from willing witnesses and clients only from one side whereas the s.47 reporter prepares his reports from witnesses and parties who ultimately may be compelled by court order to cooperate and hence answer their questions. While the Supreme Court have clearly stated that the s.47 reporter is not carrying out an inquisition, nevertheless the first appearances for many parties and witnesses not familiar with this fundamental analysis may be quite the opposite. These first appearances give rise to the tensions and misunderstandings conveyed to practitioners, which might erroneously (but understandably) give rise to instructions to practitioners, such as were received by counsel for the respondent/appellant in this case, and many other instances.
18. The learned authors Hogan and Kelly, in the article referred to, have at para. 5.3 called for clear guidance for judges, practitioners and experts in relation to s.47 reports and state:-
“It is submitted that a number of the problems with the system might be alleviated by formulation of clear guidelines for judges, practitioners and experts themselves. Such guidance could deal with issues such as letters of instruction, matters to be addressed by the experts, the manner of assessments, the recommended timeframe for conducting assessments, and the parties who should be assessed. Collaborative guidelines could be formulated and agreed by members of the judiciary, family law practitioners (both solicitors and barristers) and bodies representing experts (eg. the Psychological Society of Ireland and/or the Medical Legal Society of Ireland ). The above-mentioned U.K. practice direction on ‘experts and family law proceedings relating to children’ might provide a useful point of reference for reform in this jurisdiction.”
19. As yet such guidelines have not emerged, although the experience of following the practice arising from the Supreme Court decisions, and the A.B. v. C.D. and I. v. I. decisions, in addition to similar decisions, is indicative of the likely benefit of and success of such guidelines. The need for such guidelines is evident from the need to get somewhat more consensus in relation to the approaches to be taken by judges, so that counsel do not have to resort to the varied reported decisions pointing towards some managed system of s.47 reporting, and also to protect practitioners from the centrifugal force away from proper case management, arising from the primacy of their clients instructions.
20. The formulation of such guidelines should however protect the individual independence and discretion of each trial judge, and, above all, ensure the right to a fair trial in accordance with constitutional and natural justice. In A.B. v. C.D., I dealt with the tentative proposals in the reflection at the end of the judgment regarding treatment of s.47 experts to ensure efficiency and fairness for all concerned, stating at para. 17 as follows:-
“This process of control should only be exercised sparingly having regard to the right of a fair trial in accordance with constitutional and natural justice of the parties involved, but under no circumstances would I accept that in appropriate cases is contrary to the right of a fair trial in accordance with the Constitution especially when it is realised that in modern times legislative restrictions have been placed on the right of the accused in relation to cross examination of compliance in sexual cases about their previous history and, in more recent times, in relation to restrictions in relation to the challenge of experts proposed to give evidence”.
Conclusion
21. On the issue of bias, having regard to my conclusion on the facts I find that there was nothing untoward about the exchange between Ms. N.D. and counsel for the respondent/appellant (natural father), (never mind any suggestion of bias). In so far as the law is concerned, the experts role is not that of an arbiter of the differences between the parties, but merely a person who may give an opinion, and if they qualify this opinion this does not leave them any less qualified to give the opinion nor does it show any cause for disqualification by the judge. The judge alone is the arbiter of fact and law and is free to make conclusions in the case having heard the evidence of the s.47 expert in all its frailties, (if any), and the other evidence, together with the submissions and discussions at the hearing.
Notification of s.47 Expert
22. The question arises whether the parties and the Court would be under an obligation to notify the witness proposed to be disqualified by reason of bias in accordance with the principles set out in Re Haughey [1971] 1 I.R. 217. It is an indication of the desultory way in which these applications have been dealt with in the past that this does not seem to be the practice. Nevertheless, a holding against such a witness could be sought to be multiplied and aggravated by a complaint to their professional disciplinary body which might be then found to be unfounded, or (even without such complaint) be circulated among networks in certain quarters which, in breach of the in camera rule, have the information ready for recycling before another court, in an attempt to disparage the expert witness, or even achieve the same result of exclusion for bias. In view of the decision of the Court the question of notification of the expert witness does not arise in this case.
Section 47 Report
23. The Court accepts the submissions made on behalf of the respondent/appellant that the s.47 report, if ordered would be the third, and that the same would constitute a burden on all concerned especially the child. Nevertheless, all parties recognised that the child was at a very crucial period of his development, and that his present circumstances and views would be relevant, given the lapse of time since they were last heard. Accordingly, the court ordered that the same s.47 reporter would speak to the child for the purpose of reporting his up to date circumstances and, his views.
DE v CD
[2015] IEHC 496
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 10th day of July, 2015.
Background to the current application
1. The current application arises from proceedings that are extant before the Circuit Court, where D.E. (the applicant/respondent) is seeking numerous reliefs pursuant to the Guardianship of Infants Act 1964 in respect of the parties’ child, L.D. In the Circuit Court proceedings, D.E. seeks the following reliefs:
(a). An order pursuant to section 6A of the Act of 1964, granting him guardianship of L.D.
(b). An order pursuant to section 11 of the Act of 1964, granting him access to L.D.
(c). If necessary and appropriate, an order pursuant to section 11 of the Act of 1964, granting the applicant custody of L.D.
2. During the course of the aforementioned proceedings, his Honour Judge Keenan Johnson of the Circuit Court heard evidence of allegations of sexual abuse perpetrated by D.E. upon L.D. These allegations formed C.D’s (the respondent/appellant) substantive objection to D.E. having access to L.D. However, D.E. denies these allegations categorically.
3. In the Circuit Court, it was agreed that a social report, pursuant to s.47 of the Family Law Act 1995, be conducted so that the voice of the child could be ascertained and relayed to the Court on the issue of prospective access between the applicant/respondent and the child. However, the learned Circuit Court Judge decided to adjudicate on whether the sexual abuse as alleged occurred prior to appointing an appropriate expert to conduct the s.47 report. It seems that the learned Circuit Court Judge choose this course of action so as to ensure that any prospective s.47 report, carried out for the purposes of the Circuit Court proceedings, would be informed by the Court’s adjudication on whether the alleged sexual abuse occurred.
4. On the 18th March, 2015, his Honour Judge Keenan Johnson, in a detailed and nuanced judgment, found that the aforementioned allegations of sexual abuse were untrue. In turn, the learned Circuit Court Judge directed the preparation of a s.47 report premised on the finding that the allegations of sexual abuse were untrue, and his observations on this point are noteworthy (at para.73 of the Circuit Court judgment):
“73. Accordingly, I am adjourning this matter to allow for the preparation of a s.47 report which will advise on the resumption of access. Such report is to be predicated on the basis that the allegations of abuse are not true. The author of the report must then look at access in terms of what is in the best interests of L.D. The court will look for guidance from the author of the report as to what steps need to be taken by L.D. and D.E. to re-establish access. The primary guiding principle behind the s.47 report should be that its recommendations reflect what is in the best interests of L.D., even if such recommendations are that access should not take place for the present.”
5. On the 27th March, 2015, the respondent/appellant filed a notice of appeal seeking to appeal the judgment of the Circuit Court delivered on the 18th March, 2015.On foot of this judgment, the Circuit Court issued an order directing the appointment of Mr. Robert Foley to conduct a s.47 assessment in respect of L.D. for the purposes of preparing a social report for the Court. This order is dated the 18th May, 2015.
6. On the 18th May, 2015, the respondent/appellant applied for a stay on the aforesaid order pending the appeal of the Circuit Court judgment. However, the Circuit Court refused the respondent/appellant’s application for a stay.
7. On the 22nd May, 2015, the respondent/appellant filed a notice of appeal outlining her intention to appeal the decision of the Circuit Court to decline a stay on its order appointing Mr. Robert Foley to produce a social report on L.D pursuant to s.47 of the Family Law Act 1995.
The Current Application.
8. The current application arises from the respondent/appellant’s notice of motion dated the 22nd May, 2015, seeking a stay on the order of Circuit Court dated the 18th May, 2015, pending the substantive appeal of the Circuit Court judgment. This Court heard this motion on the 26th June, 2015 and on the 3rd July, 2015. The Court requested written submissions from both parties, and it has considered these submissions extensively.
9. Two issues arise from the current application. The first issue pertains to whether this Court has jurisdiction to grant a stay on the aforementioned Circuit Court order where the substantive proceedings are extant before the Circuit Court. In summation, the applicant/respondent adopts the position that this Court does not have jurisdiction to hear that substantive appeal of the Circuit Court judgment and in turn, this Court does not have jurisdiction to impose a stay on the Circuit Court order pending that substantive appeal. The respondent/appellant counters this proposition. If this Court is to decide that it has jurisdiction in regard to the first issue, the Court must decide the second issue of whether a stay should be imposed on the Circuit Court order dated the 18th May, 2015 pending the substantive appeal of the Circuit Court judgment.
10. From the outset, it is important to note that the respondent/appellant does not object to a s.47 report being conducted. Rather, the respondent/appellant objects to the premise upon which the report is to be conducted.
The Position of the Respondent/Appellant.
11. On the issue of whether this Court has jurisdiction to hear the substantive appeal of the Circuit Court judgment of the 18th March, 2015, and in turn grant a stay on the Circuit Court order, counsel for the respondent/appellant directed the Court to s.38 of the Courts of Justice Act 1936 which states;
“38. An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action or matter—
(a) where such judgment or order is given or made by a judge of the Circuit Court for the time being assigned to and sitting in the Dublin Circuit, to the High Court sitting in Dublin, and
(b) in every other case, to the High Court on Circuit sitting in the appeal town for the county or county borough in which the action or matter resulting in such judgment or order was heard and determined.
(2) Every appeal under the section shall be heard and determined by one judge of the High Court and shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made.
(3) The judge hearing an appeal under this section may, if he so thinks proper on the application of any party to such appeal, refer any question of law arising in such appeal to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order on such appeal pending the determination of such case stated and, in particular, may so adjourn such pronouncement to Dublin and there pronounce his said judgment or order at any time after such determination.”
12. Counsel for the respondent/appellant referred to s.38(1) of the Courts of Justice Act 1936 and that the order of words contained in the statutory provision should be given their ordinary and natural meaning. In turn, the respondent/appellant submits that if the Court is to accede to interpreting s.38(1) of the Act of 1936 in a manner that gives the words contained therein their natural and ordinary meaning, it is axiomatic that every judgment or order (except for specific judgments and orders stipulated within part IV of the Act of 1936, of which no such judgment or orders arise in the current proceedings) of the Circuit Court is amenable to appeal. Moreover, counsel for the respondent/appellant highlights that there is no provision contained within the Act of 1936 that stipulates that only judgments or orders of the Circuit Court that dispose of the substantive Circuit Court proceedings can be appealed to the High Court.
13. The respondent/appellant submits that there is legal authority that supports the proposition that an appeal can lie from preliminary matters. In this case, counsel for the respondent/appellant claims that the Circuit Court determination on whether the alleged sexual abuse of “L.D.” occurred is a preliminary matter amenable to appeal. The Court was referred to the decision of Denham J. in Dublin Wellwoman Centre Ltd v. Ireland [1995] 1 ILRM 408. In Dublin Wellwoman Centre, the Supreme Court had to determine whether a trial judge’s preliminary determination, refusing to recuse herself from the substantive High Court proceedings, could be classified as a “decision” for the purposes of Article 34.4.3º of the Irish Constitution 1937. Article 34.4.3º of the Constitution stipulates that the Supreme Court shall, subject to exceptions and regulations prescribed by law, have appellate jurisdiction from all decisions of the High Court. Thus, the Supreme Court had to adjudicate on whether it had jurisdiction to hear an appeal on the trial judge’s preliminary determination under Article 34.4.3º of the Constitution. Denham J. held that the preliminary determination by the High Court Judge was a “decision” for the purposes of Article 34.4.3 of the Constitution, and the determination was amenable to appeal to the Supreme Court (at pg.417):
“In this case there were formal words — the order and a reserved judgment. There was a determination by a High Court judge of an issue. The determination affecting the interest of one of the parties. Carroll J in refusing to discharge herself from the case between the parties on the basis that there was no bias made a decision, against the application of one party, on constitutional justice. The issue of bias goes to the root of constitutional justice—to the constitutional right to a fair and impartial hearing. The issue is one to be determined in accordance with Irish law and the Constitution.
The determination had all the characteristics of a decision. The preliminary issue had been raised before the High Court, arguments were submitted on behalf of opposing parties, the law and the Constitution were referred to, the judge reserved her decision, and then delivered a written judgment in which she gave her determination and the reasons therefor. Thereafter a High Court order on the issue, and regulating the appeal, was drawn up.
The fact that it is an issue preliminary to a trial does not divest it of the status of a ‘decision’ under Article 34.4.3º. Preliminary matters, such as for example a request for an adjournment, are not infrequently appealed to this Court. It has been the practice of this Court, quiet rightly in my view, to treat such a decision from which an appeal may lie. Such a decision is analogous to the decision in this case.”
It is appropriate that the issue be tried now rather than after a full hearing of the substantive action in the High Court. It is a decision on an interlocutory matter in the course of an action.
I am satisfied that in substance and in form, the judgment and order of the High Court in this case are a ‘decision’ pursuant to Article 34.4.3º of the Constitution. Consequently, an appeal lies therefrom to the Supreme Court.”
14. Counsel for the respondent/appellant submits that the current application is analogous to the Supreme Court’s ruling in Dublin Wellwoman Centre Ltd v. Ireland, as:
(a) There was a hearing on whether the alleged sexual abuse occurred in the Circuit Court. During this hearing, both parties made submissions.
(b) The learned Circuit Court Judge reserved judgment.
(c) On the 18th March, 2015, the learned Circuit Court Judge delivered a written judgment, upon which, an order dated the 18th May, 2015, was made appointing Mr. Brian Foley.
(d) The determination affected the interest of one of the parties, namely, the respondent/appellant and the subject of the proceedings, L.D. The Circuit Court judgment directed that that a s.47 report be conducted on the premise that the sexual abuse as alleged did not occur. Both the respondent/appellant and L.D. continue to assert that the applicant/respondent perpetrated the sexual abuse, and submit that a report conducted on the premise that the abuse did not occur compromises their position and in turn, their interests.
15. Counsel for the respondent/appellant also referred to the decision of the English Court of Appeal in In re B. (A Minor) (Split Hearings; Jurisdiction) 1 W.L.R. 790, in support of the proposition that this Court has jurisdiction to hear the substantive appeal and in turn, impose a stay on the Circuit Court order dated the 18th May, 2015. In re B. (A Minor), the minor had suffered eleven fractures within a three month period before being admitted to hospital. The minor was taken into interim care with the substantive care proceedings heard by way of split trial before the County Court. The County Court judge envisaged that the first part of the proceedings would determine causation of the injuries, and on that determination, the second part of the proceedings would determine where the child should reside. The case came before the English Court of Appeal, on whether the County Court judge was correct in disregarding expert medical evidence in preference for the testimony of lay witnesses. In the initial proceedings, the County Court judge made findings of fact, but did not issue any order or declarations upon those findings. On appeal, the issue arose as to whether the Court of Appeal had jurisdiction to deal with the matter, as its function was to adjudication upon orders or judgments of the court of first instance as opposed to adjudicating upon mere findings of the court of first instance. On this issue, counsel for the respondent/appellant directed this Court to the judgment of Dame Butler-Sloss P. where she stated (at pg. 793):
“I am satisfied for my part that the way in which this case was presented to the court was by way of a hearing of a preliminary issue. The preliminary issue was that of causation. The decision, which was very much dependent upon the medical evidence, was crucial to the final decision of the court as to where this child should live and with whom. The determination of the preliminary issues was crucial to the disposal of the care proceedings. Without it, it would be impossible for the local authority and guardian to put forward the appropriate proposal to the judge, or indeed for the mother and grandparents to be able to meet those proposals. I can see why, in this particular case, there was a split hearing. Whether such a hearing presents other difficulties is another matter.
Mr. Ames, representing the grandparents, who had not had an opportunity to argue this below, in his excellent submissions to us has cited the obvious example of a preliminary issue, an issue such as a defence in limitation or in civil personal injury cases of liability. But preliminary issues are not limited to such obvious examples. There are other examples, which we have canvassed with counsel during argument upon which findings are made which are of enormous importance, although not necessarily entirely determinative of the second part of the hearing. But such issues which are determined as a preliminary part of the case, which are crucial to the final determination, can be treated, if appropriate, as a determination for the purpose of allowing the Court of Appeal to hear it without waiting for the second part of the hearing. In this case, in the unusual circumstances which prevail, I am satisfied that the court does have jurisdiction to deal with the issues which were determined by the judge and that those are issues determined in accordance with section 77 of the County Court Act 1984.”
16. It was submitted by the respondent/appellant that the current proceedings are analogous to the procedural circumstances of In re B. (A Minor). Consequently, it is proposed that this Court has jurisdiction to hear an appeal of the Circuit Court judgment dated the 18th March, 2015, and pending that appeal, this Court has jurisdiction to impose a stay on the order of the Circuit Court dated the 18th May, 2015.
17. If this Court is to hold that it has jurisdiction to grant a stay on the aforementioned Circuit Court order directing a s.47 assessment and report, counsel for the respondent/appellant submits that a stay should be granted for two reasons. Firstly, the Circuit Court order stipulates that the s.47 assessment and report be conducted on the premise that the allegations of sexual abuse are untrue. Moreover, counsel for the respondent/appellants highlights that if this Court refuses a stay on the aforementioned order, the assessment will be conducted in circumstances where Circuit Court judgment requires the respondent/appellant and her family to praise the applicant/respondent’s fatherly characteristics: (at para. 70 of the Circuit Court judgment):
“I am acutely conscious of the dilemma faced by CD in this case and have nothing but sympathy for her position. As I have said already, she is clearly a loving and concerned parent who wants to do the best for her daughter. She adores her little girl and cannot envisage her concocting the allegations of abuse, which she has levelled against her father. We may never establish the source of the allegations, but at this stage it is important that we move on and start rebuilding trust between DE and LD. CD and her family have an important role to play in providing reassurance to LD as she embarks on the re-establishment of a relationship with her father. This involved CD’s family speaking well of DE in the presence of LD and praising his fatherly characteristics. In this respect I would like to wish all of the parties, especially LD, well.”
Counsel for the respondent/appellant claims that this caveat contained in the Circuit Court order requires the respondent/appellant to embark upon an assessment process whereby she will have to praise the respondent/appellant’s parental characteristics to the child while simultaneously maintaining that the child was subject to sexual abuse. The respondent/appellant submitted that adopting such a position could have a drastic impact on the mother-daughter relationship. Secondly, counsel for the respondent/appellant claims that the s.47 assessment process, as stipulated by the Circuit Court Judge, could pervert any prospective evidence the child may provide on the allegations of sexual abuse at the substantive appeal. The respondent/appellant substantiates this proposition by claiming a s.47 assessment process, which is premised on the basis that the allegation of sexual abuse are untrue, would undermine the child’s consistent position that she was sexually abused by the applicant/respondent. Counsel for the respondent/appellant claims that such a prospect could have a damaging effect on the welfare of LD.
The Position of the Applicant/Respondent.
18. On the issue of jurisdiction to grant a stay on the order of the Circuit Court, the applicant/respondent submits that this Court can only impose a stay on the aforesaid order if the respondent/appellant has a right of appeal. Counsel for the respondent/appellant directed the Court to s.38(2) of the Courts of Justice Act 1936, which states;
“Every appeal under the section shall be heard and determined by one judge of the High Court and shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made.”
19. It was submitted by the applicant/respondent that, as a matter of statutory interpretation, s.38(2) of the Act of 1936 precludes an appeal from a “part-heard” case. Moreover, the applicant/respondent claims that an appeal pursuant to s.38 of the Act of 1936 only lies when the action or the matter can be reheard in its entirety on appeal. To hold otherwise would endorse a practice where the Court could rehear part of the action or matter in which the judgment or order, the subject of such appeal, was given or made.
20. Counsel for the applicant/respondent also referred to the decision of the English Court of Appeal in In re B. (A Minor) (Split Hearings; Jurisdiction) 1 W.L.R. 790, and submitted that this Court, in deciding whether it has jurisdiction to hear an appeal and in turn a stay on the Circuit Court order pending the appeal, should not follow the dicta of the English Court. It was submitted that this Court should be cautious in following foreign authorities especially in circumstances where there is no procedural parallels between this jurisdiction and the jurisdiction which the foreign authority originates. In particular, counsel for the applicant/respondent claims that there is statutory authority within the jurisdiction of England and Wales that permits the Courts of Justice to engage in split hearings at first instance, and if so arising, an appeal of the preliminary determination prior to the commencement of the second stage of the split hearing. Counsel for the applicant/respondent submits that there is no statutory authority within this jurisdiction that permits the Courts of Ireland to engage in such a procedure.
21. Counsel for the applicant/respondent highlights that the substantive proceedings were before the Circuit Court for thirteen days. Moreover, the applicant/respondent estimated that the substantive appeal in the High Court would require at least twenty hearing dates. In turn, this would result in a significant delay of the Circuit Court proceedings and exacerbate prejudice to the applicant/respondent and the revival of his relationship with L.D. Counsel for the applicant/respondent explained to the Court that the applicant/respondent has not had access with “L.D” since July 2013. Thus, any further delay of the Circuit Court proceedings advancing could render any prospect of reviving the father-daughter relationship futile. In addition, the applicant/respondent claims that if the respondent/appellant has concerns regarding the caveat contained in the Circuit Court order, she can petition the Circuit Court to vary its order pursuant to s.12 of the Guardianship of Infants Act 1964. Counsel for the respondent/appellant disagrees with the proposition that an application for variation can be made to the Circuit Court. Rather, counsel for the respondent/appellant claims that the Circuit Court judge, on issuing the aforementioned judgment and order, is functus officio on the issue of whether the allegations of sexual abuse occurred, and in turn, is bound by the principle of res judicata.
22. The applicant/respondent claims that the respondent/appellant’s appeal is inconsistent with their agreement, that was facilitated with the leave of the Circuit Court, that the Circuit Court hearing would deal first with the contested matter of fact, namely, the issue of whether the applicant/respondent had abused the parties’ daughter, before turning to the preliminary issue of access between the applicant/respondent and “L.D”. Counsel for respondent/appellant highlighted that the parties never entered any substantive agreement that waived her right to appeal the Circuit Court determination as to whether L.D was sexually abused by the applicant/respondent.
23. If this Court is to accept that it has jurisdiction to impose a stay on the Circuit Court order dated the 18th May, 2015, the applicant/respondent submits that the Court should consider four factors. Firstly, this Court, in determining whether a stay should be granted, should not embark upon the substantive appeal as per Redmond v Ireland [1992] 2 IR 362. Secondly, the Court must determine whether the bringing of an appeal could damage the applicant/respondent and “L.D”, and the parent-child relationship. Thirdly, the Court must consider the length of time between the “part-heard” Circuit Court proceedings and the hearing of an appeal in the High Court, which would, according to the applicant/respondent, be substantial. Fourthly, the respondent/appellant submits that the Circuit Court Judge delivered a careful and nuanced judgment, and that this Court ought to give appropriate deference to the Circuit Court Judge who exercised due consideration in making the order dated the 18th May, 2015.
Conclusion.
24. The respondent/appellant’s application for a stay comes before this Court in unconventional circumstances. These proceedings came before the Circuit Court where the applicant/respondent was seeking numerous reliefs under the Guardianship of Infants Act 1964. These proceedings remain extant before the Circuit Court. The Circuit Court adopted a course of action whereby it decided to determine a preliminary factual dispute, namely, whether L.D was the subject of sexual abuse by the applicant/respondent, which was answered in the negative by the Circuit Court Judge in a detailed and nuanced judgment. On foot of the judgment, the Circuit Court issued an order directing that the s.47 assessment be conducted on the premise that the allegations of sex abuse were untrue. The respondent/appellant has lodged an appeal of the Circuit Court judgment to the High Court. Pending the appeal, the respondent/appellant comes before this Court seeking a stay on the Circuit Court order directing a s.47 assessment of L.D.
25. One component of the applicant/respondent’s objection to a stay being imposed on the Circuit Court order is that the High Court does not have jurisdiction to hear an appeal of a “part-heard” case and in turn, this Court has no jurisdiction to grant a stay pending an appeal that cannot, in effect, be heard. However, if this is the applicant/respondent’s position, this Court finds it peculiar that there have been no positive steps to strike out the appeal prior to opposing the respondent/appellant’s application for a stay.
26. Firstly, in unusual circumstances, this Court must determine whether it would have jurisdiction to hear the substantive appeal pursuant to s.38 of the Courts of Justice Act 1936. Section 38(1) of the 1936 Act states that:
“An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action”
27. Section 38(1) of the 1936 stipulates that an appeal shall lie from every judgment or order of the Circuit Court to the High Court. In this case, it is clear that there was a sole hearing on the issue of whether L.D was sexually abused by the applicant/respondent. Evidence and submissions were heard by the Circuit Court to that end. In turn, the Circuit Court delivered judgment exclusive to the issue of whether L.D. was sexually abused. On foot of that judgment, the Circuit Court issued the order dated the 18th May, 2015. Thus, it clear that there was a judgment and order of the Circuit Court within the meaning of s.38(1) of the Act of 1936.
28. It was contended in this application, that s.38(2) of the Act of 1936 precludes an appeal of a “part-heard” case. It is the view of this Court that the correct interpretation of s.38(2) of the 1936 Act is that an appeal prescribed by the Act shall be heard and determined by one judge of the High Court and that such appeal is de novo in that the evidence must be reheard and tested. Thus, an appeal under s.38 of the 1936 Act can be distinguished from an appeal from the High Court to the Court of Appeal where such appeal can only address issues of law. This Court rejects the proposition that the words, “shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made” as contained in s.38(2) of the Act prohibits an appeal of the Circuit Court judgment or order until the substantive Circuit Court proceedings are concluded. Moreover, this Court is of the view that s.38 of the 1936 Act is not exclusive to Circuit Court judgments or orders that dispose of the proceedings in the Circuit Court.
29. Thus, it is clear from the wording of s.38(1) of the 1936 Act that an appeal shall lie from every Circuit Court judgment or order of the Circuit Court except for particular judgments or orders excluded by the Act. To hold otherwise would be to subvert the intention of the Oireachtas. In addition, the Circuit Court order in this case is not precluded from the exceptions as referred to in s.38(1) of the Act of 1936. Thus, this Court finds that it would have jurisdiction to hear an appeal and on that basis, this Court does have jurisdiction to determine whether a stay on the Circuit Court order is necessitated.
30. At this point, it is imperative to emphasis that it is not the role of this Court to determine the substantive appeal, which is to determine whether the allegations of sexual abuse are true. Rather, this Court must determine whether a stay should be imposed upon the Circuit Court order, which directed that a s.47 report be conducted on the premise that no sexual abuse was perpetrated by the applicant/respondent upon L.D.
31. In Dankse Bank A/S trading as National Irish Bank v. Mc Fadden (Unreported, High Court, Clarke J, 27th April 2010), Clarke J. outlined the applicable principles that should be considered by the trial judge before an application for a stay is granted (at pg 2, paragraphs 2.1- 2.2):
“It is clear from both Redmond v. Ireland & Anor [1992] 2 I.R. 362 and Irish Press Plc v. Ingersoll Irish Publications Limited [1995] 1 I.L.R.M. 117 that, in general terms, two broad issues will ordinarily arise for consideration in relation to whether a stay should be placed on an order of this Court pending appeal to the Supreme Court. The first issue is that, in order that a stay might be considered, any such appeal must be bona fide. For example, McCarthy J. in Redmond noted that a heavy responsibility lay on the legal advisers of those seeking a stay to assist the court on the reality of an appeal and also noted that appeals have been known in the past to have been brought for tactical rather than bona fide reasons”.
Clarke J. continues (at pg 3, paragraphs 2.4-2.5):
“Where the appeal is genuine, it seems clear from Ingersoll that the court should conduct a process analogous to the balance of convenience test which the court is required to apply in determining whether to grant an interlocutory injunction. It is obvious that a successful party in this Court may lose out to a greater or lesser extent and with a greater or lesser degree of permanency as a result of having a stay placed on any order obtained. Likewise, it is equally clear that an unsuccessful party who fails to obtain a stay, but who ultimately succeeds on appeal, may suffer, again to a greater or lesser degree of permanency, as a result of the fact that a court order has been effective against them in the intervening period. In the words of McCarthy J. in Redmond the court is, in those circumstances, required to “maintain a balance so that justice will not be denied to either party””.
“To those considerations, I would add one further matter. In the context of the interlocutory injunction jurisprudence, I expressed the view in Evans v. I.R.F.B Services (Ireland) Limited [2005] IEHC 107, that, in a case, where there was significant potential detriment on both sides, it seemed to me “that it is necessary to consider whether there is any form of injunction which might meet, to the greatest possible extent, the legitimate concerns as to detriment of both parties”. It seems to me that an analogous principle applies in the context of a stay. It may be that a stay on terms or the imposition of terms without a stay can ameliorate the potential detriment to both sides in the event that either a stay is granted and the appeal fails or a stay is not granted and the appeal succeeds”.
32. In determining the necessity for a stay in the present proceedings, it is clear from the above dicta of Clarke J., that this Court must adopt a two-stemmed test. Firstly, the Court must assess whether the prospective appeal is bona fides. If the Court finds the prospective appeal brought by the respondent/appellant is for bona fide reasons, the Court must assess whether the balance of convenience lies in granting or refusing a stay.
33. Firstly, this Court must consider whether the appeal is bona fides. In this case, as the Circuit Court judgment and order are intertwined, this Court must consider whether the substantive appeal of the Circuit Court judgment is bona fides in determining whether a stay should be granted on the Circuit Court order. In assessing whether the substantive appeal is bona fide, this Court is not determining the prospective success of the substantive appeal. Rather, the Court is assessing whether the appeal is stateable, and whether the appeal is being pursued for genuine rather than tactical reasons. This Court concludes that the respondent/appellant’s appeal is bona fides in that she continues to maintain that the applicant/respondent abused their daughter. It seems that the respondent/appellant bases her position on the findings of St. Clare’s Unit of Temple Street Hospital that L.D.’s allegations of sexual abuse were credible.
34. As this Court has concluded that the respondent/appellant’s appeal is being pursued for bona fide reasons, this Court must consider whether the balance of convenience warrants the imposition of a stay on the Circuit Court order dated the 18th May, 2015. This case concerns the welfare of a child, which is now a formal constitutional imperative under Article 42A of the Irish Constitution 1937. Thus, the best welfare interests of L.D is the paramount factor that should guide this Court as to the necessity of a stay on the Circuit Court order. In assessing what is in the best welfare interests of L.D., this Court must balance two conflicting perspectives. Should this Court refuse a stay, resulting in the production of s.47 assessment of L.D, which may be a positive step to the revival of the father-daughter relationship? Conversely, should this Court grant a stay preventing L.D., who maintains that she was the subject of sexual abuse, from engaging in an assessment process that is premised on the finding that she was not sexually abused by the applicant/respondent?
35. It should be noted that the Circuit Court’s direction that the s.47 assessment be premised on the basis that the allegations are untrue would not automatically result in a report that recommends the resumption of access. This was acknowledged by the Circuit Court judge in his judgment (at para. 73 of the Circuit Court judgment:
“73. Accordingly, I am adjourning this matter to allow for the preparation of a s.47 report which will advise on the resumption of access. Such report is to be predicated on the basis that the allegations of abuse are not true. The author of the report must then look at access in terms of what is in the best interests of L.D. The court will look for guidance from the author of the report as to what steps need to be taken by L.D. and D.E. to re-establish access. The primary guiding principle behind the s.47 report should be that its recommendations reflect what is in the best interests of L.D., even if such recommendations are that access should not take place for the present.”
36. Although, the Circuit Court determination is the subject of appeal, at this point in time, the applicant/respondent has been vindicated with regard the allegations of sexual abuse. The Circuit Court directed Mr. Brian Foley to carry out a s.47 assessment of the child on the premise that the allegations of abuse were untrue. It is experience of this Court that the psychologist appointed conducts social assessments with the highest integrity and professionalism. L.D. could benefit from Mr. Foley’s therapeutic expertise.
37. Although, the Circuit Court directed that the s.47 assessment should be conducted on the premise that the allegations of sexual abuse are untrue, this Court is of the view that Mr. Foley will apply the highest standards of professionalism and carry out his assessment with sensitivity with regard the fragile circumstances of this case.
38. As a s.47 assessor, Mr. Foley’s role is to determine the wishes and best welfare interests of the child, and whether there is a suitable pathway for resuming access between father and daughter, if he concludes that same is in her best welfare interests. It is not the role of the s.47 assessor to confront L.D with regard to the allegations of sexual abuse. Rather, the s.47 assessor must be cognisant of the child’s concerns in formulating his ultimate recommendations to the Court, which must also be tempered by the Circuit Court’s determination that the allegations of sexual abuse are untrue. In summation, Mr. Foley must use his professional judgment and expertise in approaching the various strands in this case.
39. There is nothing to prevent Mr. Foley from being notified that the Circuit Court determination is under appeal. This information may also inform his ultimate recommendation to the Circuit Court. It would be best practice for Mr. Foley to be provided with a copy of the pleadings, the Circuit Court judgment and order and a copy of this judgment. In addition, Mr. Foley could seek such further directions as he deems necessary from the Circuit Court as to how to conduct his assessment in the most appropriate manner leading to the best possible outcome for the child.
40. The applicant/respondent has not seen his daughter since July 2013. It is vital that positive steps are taken to revive the relationship between father and daughter. A s.47 assessment of L.D is the first step in a delicate process. If this Court was to grant a stay pending the substantive appeal, it would be subverting the efforts of reviving the father-daughter relationship. As a result of the foregoing reasons, this Court refuses the respondent/appellant’s application for a stay and directs that the Circuit Court order be effected.
FH v Staunton
[2013] IEHC 533
JUDGMENT of Mr. Justice Hogan delivered on 27th November, 2013
1. In these judicial review proceedings the first and second applicants (whom I shall describe as either “the parents” or “the H. parents”) challenge the validity of certain orders made by Judge Kevin Staunton under the provisions of the Child Care Act 1991 (“the 1991 Act”) in respect of two of their children, I., and J. Although these proceedings were held in open court, at the outset I made an order pursuant to s. 45(1) of the Courts (Supplemental Provisions) Act 1961, preventing the identification of I. and J.. It is for these reasons that the identity of the applicants, their location in the State and anything which might identify them (or the identity of any of their other children) has been redacted for the purpose of this judgment.
2. I. and J. are two young boys who are now aged 5 and 4 years of age respectively. Ms. H. is also the mother of two older girls, M. (who is aged 14) and N. (who is aged 13), but Mr. H. is not the father of these girls. (Both Ms. H. and Mr. H. were previously married and then re-married following a divorce).
3. There a rather complex background history to these proceedings. The family first came to the attention of the HSE when M. presented at a local Garda station in September, 2012 alleging that she had been physically beaten by her step-father in the presence of her mother. The Gardaí involved the provisions of s. 12 of the 1991 Act and arranged to have M. examined by a consultant paediatrician. The paediatrician concluded that M. had bruising and linear marks on her body which she thought were consistent with M. having been struck with an instrument.
4. Following a succession of applications to the District Court, that Court ultimately made an order under s. 18 of the 1991 Act on 18th June, 2013, whereby the two elder girls were taken into care until they attain their majority. This order has been appealed by the parents to the Circuit Court and I have been informed that this appeal is likely to be heard in January, 2014. Nothing in this judgment should be taken as expressing any view as to how that particular appeal should be disposed of.
5. In the light of these events the HSE were naturally concerned about the welfare of the two younger children. An emergency care order was thereafter made by the District Court in respect of the two boys for an eight day period. On 3rd October, 2012, the District Court made a supervision order in respect of the two boys under s. 19 of the 1991 Act. While the boys were returned to their parents, they were subject to the supervision of the HSE. In the light of certain comments made by M. to her foster-family the HSE then applied afresh to the District Court for interim care orders in respect of the two boys. The orders were duly granted and the boys remained in care from late January, 2013 until 16th May, 2013.
6. I should pause at this point to say that the parents made an application to me for an inquiry under Article 40.4.2 of the Constitution in respect of the custody of their children. I directed that such an inquiry should commence and after several days hearing in April, 2013, I was informed that the inquiry need not continue any further.
7. On the 16th May 2013 the HSE made a further application to the District Court for the continuation of care orders on the basis that the young boys remained at risk if they remained in the care of their parents. Evidence was given by the court-appointed guardian ad litem, Ms. D., to the effect that the boys remained at risk if they remained in the care of their parents. The District Court nevertheless refused to make the care orders sought, but instead made supervision orders under s. 19 of the 1991 Act. While the conditions attached to these orders are the subject of a challenge in separate judicial review proceedings (2013 No. 688JR), it will nevertheless be necessary to re-visit the issue of the validity of these conditions at a later stage in this judgment.
8. On 11th September, 2013, the HSE applied again to the District Court for interim care orders pursuant to s. 17 of the 1991 Act in respect of the two boys. That application was heard in full on 20th September, 2013, with Ms. D. (as guardian ad litem) and Ms. R. (a HSE social worker) giving evidence in support of the application. Following legal argument on the subsequent days, judgment was reserved by District Judge Staunton until 21st October, 2013. On that day the Court made an interim care order pursuant to s. 17(1) of the 1991 Act in respect of the two boys and this order was originally due to expire on 14th November, 2013. On Friday, 25th October, 2013, this Court (Butler J.) granted the applicants leave to apply for judicial review and the effect of the order was stayed by Butler J. pursuant to the terms of O. 84, 20(7). These judicial review proceedings were then heard on an expedited basis by this Court and by agreement the potential operation of the care order was postponed to today, 27th November, 2013, in order to facilitate the preparation of this reserved judgment.
The constitutional jurisdiction to take children into care
9. The entire jurisdiction to take children into care derives from Article 42.5 of the Constitution which provides that:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, 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 for the natural and imprescriptible rights of the child.”
10. It is true that the right and duty of the parents to provide for the education and upbringing of their children is described by Article 42.1 as “inalienable”. Yet it is also obvious from the express terms of Article 42.5 that these parental rights can be lost in the case of objective failure on the part of the parents themselves. While terms such as “inalienable”, “imprescriptible” and “inviolable” are liberally employed throughout the Fundamental Rights provisions of the Constitution, it must be recalled that these terms draw their provenance from the use of the very same or similar terminology in the continental constitutions of the 19th and 20th century. Neither the drafters of those constitutions nor the drafters of our Constitution intended that terms such as “inalienable” or “inviolable” should be read absolutely literally: see e.g., by analogy my own comments to this effect in Wicklow County Council v. Fortune (No.1) [2013] IEHC 406. These terms were rather used to signify and to emphasise the importance of these rights and to convey their importance so that, as I put it (in the context of the meaning of the word “inviolability” in Article 40.5 in Fortune) such rights would enjoy “the highest possible level of legal protection which might realistically be afforded in a modern society”. Rather these terms were used to signify and to emphasise the importance of these rights and to convey their importance. The use of language of this kind further conveys an important signal as how necessary it was considered that these rights should be safeguarded against encroachment.
11. Indeed, the close similarity in both language, structure and thinking between the provisions of Article 41 and Article on the one hand and some of the constitutions of other continental jurisdictions on the other can only be described as striking. Thus, for example, Article 6(2) of the German Basic Law provides that the “care and upbringing of children are a natural right of parents and a duty primarily incumbent upon them”. Article 6(3) then provides – in language, it might be thought, which is uncannily redolent of the language actually used in Article 42.5 itself – that:
“Children may not be separated from their families against the will of their parents or guardians save in accordance with a law in cases where they fail in their duty or there is danger of the children being seriously neglected for other reasons.”
12. Whether by sheer coincidence or otherwise, the language used here by Article 6(3) of the German Basic Law pretty well sums up the philosophy of Article 41 and Article 42. Parents are given the right and duty to educate their children, but that right can be – and will be – lost where they objectively fail in their duty or where for other reasons there is a danger that the children will be seriously neglected.
13. There is no doubt but that the loss of parental rights – whether on a temporary or permanent basis – is, however, a serious matter which the organs of the State should not lightly undertake: see, e.g., the comments to this effect of Hardiman J. in N. v. Health Service Executive [2006] IESC 60. Yet Article 42.5 envisages that there will be cases where this step is objectively necessary to safeguard the child’s own constitutional rights. As O’Flaherty J. observed in Southern Health Board v. CH [1996] 1 I.R. 219, 238:
“…the child’s welfare must always be of far graver concern to the Court. We must, as judges, hearken to the constitutional command which mandates, as prime consideration, the interests of the child in any legal proceedings.”
14. It is accordingly impossible to catalogue ex ante the precise nature of the parental failure which might justify the removal of the child from the custody of its parents. It is sufficient to say that while weighty reasons for this step must always be established, yet as O’Flaherty J. observed in CH, such a step must also be taken in such circumstances of failure where it is clear that the best interests of the child so require.
15. Thus, physical abuse and sexual abuse of children naturally amount to an open attack on the “person” of the child within the meaning of Article 40.3.2 of the Constitution. The right to the protection of the person in Article 40.3.2 is clearly one of the “natural and imprescriptible rights of the child” for the purposes of Article 42.5. Such an infringement of these rights would unquestionably constitute “failure” in the Article 42.5 sense on the part of the parent concerned. It is important to stress that no such failure of this nature was identified by the District Court in the present proceedings so far as the boys were concerned.
16. In the present case, the District Court found that the parents were guilty of such failure in that (i) they failed to comply with the terms of the supervision order and (ii) they were guilty of emotional neglect. Indeed, the judge specifically acknowledged that there were ample grounds to have made a s. 18 care order, but he rather thought that the matter could be addressed in the first instance by the making of a supervision order under s. 19. This is what he directed at the May, 2013. It was only when he concluded that the H. parents had no intention of complying with the supervision order that the judge elected to make the interim care order under s. 17.
17. Can it be said that so far as the two boys are concerned that, viewed objectively, the parents have been guilty of such parental failure for the purposes of Article 42.5 as would justify the taking of the two boys into care? It is to this issue to which we may now turn.
Failure to comply with the terms of the supervision order
18. It is clear from the judge’s ruling that the failure on the part of the parents – and, specifically, Mr. H. – to comply with the earlier direction contained in the supervision order requiring them to attend for parental capacity assessments played an important part in his conclusion that a s. 17 interim care order should also be made. It is true that the judge also acknowledged that a s. 17 order could not be made simply the parents did not comply with the supervision order inasmuch as it would also have had to have been established that the s. 17 conditions also were satisfied. Yet it also seems manifest from the terms of the judge’s reasoning that one of the reasons why he made an interim care order for the duration of time which he did was that evidence was given before him at the hearing on 20th September, 2013, was that such an assessment could have been conducted within the three weeks or so originally specified in the s. 17 order.
19. As has been already noted, the validity of the original supervision order is under challenge in separate judicial review proceedings and it is, perhaps, unfortunate that the two sets of proceedings were not heard together. Be that as it may, it seems to me that I cannot nonetheless avoid pronouncing for present purposes on aspects of the supervision order in these proceedings as the steadfast refusal of the parents to submit to such an assessment certainly played a not insignificant role in the judge’s conclusion that an interim care order ought to be made.
The validity of the direction that the parents must submit to a parental capacity assessment
20. It may first be observed that although the supervision orders were made under s. 19(1) of the 1991 Act, yet several of the directions contained therein were directed towards the parents. Thus, for example, the parents were directed to have parenting assessments and psychometric testing and Ms. G. was directed to receive counselling and psychotherapy. It seems obvious that the H. family is a troubled family and there seems little doubt but that the parents in particular would benefit, for example, from parenting assessments and that they might obtain valuable guidance to cope with the stresses and strains of family life.
21. This, however, is not the precise issue which I have to determine. My task is rather to examine whether, irrespective of their merits in this particular case, there is a proper legal basis for such directions under s. 19(1) of the 1991 Act?
22. Section 19(1) of the 1991 Act empowers the District Court to make a supervision order in cases where the court is satisfied that there are reasonable grounds for believing that the child has been abused or neglected and that it is desirable that the “child be visited periodically by or on behalf of the HSE.” Section 19(2) then provides that a supervision order shall authorise the Health Service Executive:
“to have the child visited on such periodic occasions as the board may consider necessary in order to satisfy itself as to the welfare of the child and to give to his parents or a person acting in loco parentis any necessary advice as to the care of the child.”
23. While the HSE is plainly authorised to visit the child and to give advice to the parents of a child who is the subject of a supervision order, the sub-section does not envisage that parents can be the subject of positive obligations of the kind which were actually directed by the District Judge and embodied in the supervision order. It is true that the 1991 Act is a remedial statute which should be construed broadly and liberally where it is possible to do so (see, e.g., the comments to this effect of McGuinness J. in Western Health Board v. KM [2002] IESC 104, [2002] 2 IR 493,510), but this principle of interpretation has no really application insofar as the question of whether positive obligations are thereby imposed on the parents is under consideration.
24. This is perhaps especially true in respect of any requirement that one of the parents receive a particular form of therapy such as psychotherapy. It is fundamental to our legal order that medical treatment (or something akin to medical treatment, such as psychotherapy) represents a voluntary choice on the party of the prospective patient (or, as the case may be, prospective client): see, e.g., the comments of Laffoy J. in Fitzpatrick v. FK [2008] IEHC 104, [2009] 2 IR 7. Very clear and express language would be required before it could be assumed that the Oireachtas had given the District Court a power to impose a condition of this kind in respect of parents otherwise subject to a supervision order.
25. Indeed, it may be noted that s. 19(4) provides that the District Court is expressly empowered to require the parents of the child to cause the child “to attend for medical or psychiatric examination, treatment or assessment at a hospital, clinic or other place specified by the court.” This sub-section is perhaps significant in two respects. First, it appears to be the only provision of the section which imposes a positive obligation on the parents of the child in question, since the Court can positively require them to present the child for medical or psychiatric treatment. Second, if the Oireachtas envisaged that the Court might be empowered to require parents to attend a particular course or undergo a particular course of treatment, it surely would have expressly so provided in this sub-section. Its failure to do so must be regarded as telling.
26. Viewed against this background, it is all too obvious that s. 19 gives no such powers to the District Court to direct a parental capacity assessment of this kind or to direct that one of the parents partake in a course of psychotherapy. The directions to do so contained in the District Court order of 16th May, 2013, must accordingly be regarded as invalid on their face.
27. Nor do I accept that s. 47 of the 1991 Act could properly provide an appropriate legislative basis for such directions in respect of the parents had this section been invoked by the District Court for this purpose. Section 47 states:
“….where a child is in the care of a health board, the District Court may, of its own motion, or on the application of any person, give such directions and make such orders on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.”
28. It is true that s. 47 is, as McCracken J. pointed in Eastern Health Board v. McDonnell [1999] 1 IR 174, 184, “an all embracing and wide ranging provision.” But the section is designed to give the District Court full authority to give directions to the HSE in all matters pertaining to the welfare of the child who is in care. Thus, for example, as happened in McDonnell itself, the HSE could lawfully be directed by means of a s. 47 order to prepare a care plan for the child which was to be reviewed a child psychiatrist.
29. Yet the s. 47 order must relate directly to the welfare of the child. The Oireachtas did not envisage that this jurisdiction could be used to impose obligations on third parties (even such as parents) to do certain things. Of course, removed from the general statutory context, it might be said that, for example, the child’s welfare would be safeguarded if an abusive or neglectful parent were to be directed by court order to abstain from alcohol. As we in this jurisdiction sadly know all too well, there is plainly a clear link between excess alcohol consumption on the part of parents and the welfare of children in general and, as a succession of writers from Joyce to McCourt have shown, such excess consumption has historically been responsible for much childhood misery. Yet the Oireachtas cannot be taken as having conferred a power to impose personal obligations of this kind on third parties simply because there might be a link between the performance of such obligations and the child’s general welfare. The purely general language of both s. 19 and s. 47 provide altogether too slender a basis for that far reaching conclusion so far as third parties are concerned.
30. Accordingly, for all the reasons I have already set out with respect to the s. 19 jurisdiction, the generality of the language contained in s. 47 cannot be invoked as to justify positive obligations of this personal kind in respect of persons other than the child itself. If there were to be such a power to impose personal obligations of this kind on parents and others in the interests of the child, very clear and express language would be required for this purpose. To my mind, neither s. 19 nor s. 47 of the 1991 Act enable the District Court to impose conditions of this kind on third parties. If the law here is considered to be unsatisfactory, this would be a matter of policy properly committed by Article 15.2.1 of the Constitution to the exclusive judgment of the Oireachtas.
31. In these circumstances, neither parents can properly be faulted for failure to comply with directions contained in the supervision order which imposed a positive obligation of this nature upon them. It follows, therefore, that this part of the decision of the District Court cannot stand and must be quashed.
The basis on which the District Court concluded that there was emotional abuse
32. The judge acknowledged that there was no question of any physical abuse so far as the boys were concerned, but he nonetheless made the interim care order on the basis that there was “overwhelming” evidence of emotional abuse such as would justify the making of an interim care order. Section 17(1)(b) permits the District Court to make an emergency care order where:
“…there is reasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of s.18(1) exists or has existed with respect to the child and that it is necessary for the protection of the child’s health or welfare that he be placed or maintained in the care of the HSE pending the determination of the care order…”
33. The conditions specified in s. 18 are as follows:
“Where, on the application of the HSE with respect to a child, the court is satisfied that:-
(a) the child has been is being assaulted, ill-treated, neglected or sexually abused, or
(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or
(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected,
and that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section, the court may make an order…in respect of the child.”
34. At the close of his ruling, Judge Staunton clarified that he had been satisfied that the conditions in both s. 18(1)(b) and s. 18(1)(c) had been established.
35. The use of the term “satisfied” in the context of legislation conferring discretionary powers on decision makers (including judges) is, of course, by now a very familiar one. It generally vests the decision-maker with power to do certain things contingent on specific pre-conditions to the exercise of jurisdiction having been “satisfied”. Used in this manner and in this sense the term envisages that the impugned decision can be shown to have been taken bona fide, in a manner which is factually sustainable and which is not unreasonable: see, e.g., The State (Lynch) v. Cooney [1982] I.R. 337,361, per O’Higgins C.J. and Mallak v. Minister for Justice [2012] IESC 59 per Fennelly J.
36. A key part of the evidence of emotional abuse was the judge’s finding that the parents had invented an allegation that the younger boy, J., had been sexually interfered with by his elder sister, N.. In July, 2013 social workers received a telephone call from a local general practitioner who informed them that Ms. H. had complained that during the course of a HSE supervised access visit to the elder girls in the previous week that one of the girls had kicked him in his genital area, pulled down his pants and then pulled his penis. The general practitioner noted that she had visually inspected J.’s genitals, but saw no evidence of bruising or redness.
37. The social worker in question then interviewed N. regarding this allegation and found her to be very distressed as a result. Judge Staunton found that this allegation was unfounded and that it had been concocted by the parents as part of an endeavour to present the HSE in a bad light. In this respect, this finding was also consistent with the finding which he also made that the boys were being coached by the parents not to co-operate with the HSE social workers.
38. One may accept that the circumstances presented here do not fit into the standard categories of emotional abuse (such as, for example, persistent sarcasm and hostility towards the child) which are identified in paragraph 2.3 of Children First: National Guidelines for the Protection and Welfare of Children (Dublin, 2011) published by the Minister for Children and Youth Affairs. It is nonetheless clear that, on any view, such conduct was gravely wrong and amounts to an improper exploitation of the two children concerned. A parent who makes a false allegation of this kind involving their children is plainly guilty of an objective failure of duty towards those children such as would trigger the potential application of Article 42.5. It is, if anything, worse when one child is deliberately pitted by the parents against another child by the making of false allegations of this very serious kind.
Conclusions
39. By reason of effluxion of time, the interim care order has lapsed in the period taken for the preparation of this judgment. When the matters returns to the District Court, it will be matter for that judge to evaluate what, if any steps, he should take with regard to the two boys in view of the terms of this judgment.
40. It is important to recall, however, that any removal of a child from its parents can only be in compliance with the requirements of Article 42.5 itself. A positive failure on the part of the parents, measured objectively, must always be established and the children cannot be removed from the home environment save for weighty reasons. Yet where such failure has been established and the best interests of the child so require, Article 42.5 expressly requires the courts to act in the manner which will best safeguard the constitutional rights of the child.
41. For the reasons I have just stated, the District Court has no authority to embody conditions imposing personal obligations on third parties (such as parents), such as those directing that they attend parental assessment courses or submit to a course of psychotherapy. Insofar as the interim care order was premised on the fact that the parents had shown that they had no intention to complying with such directions, then the order was to that extent invalid and cannot stand.
42. There remains the fact that the District Court found that at least one of the parents had quite improperly exploited the children by making a false allegation that an older girl had sexually interfered with one of the younger boys and that she had done this with a view to embarrassing the HSE and its social workers. It seems implicit in the judge’s findings that Mr. H. had stood over the conduct of his wife in this regard.
43. Viewed objectively, this was plainly conduct which amounted to a grave moral failure on the part of the parents within the meaning of Article 42.5. In these circumstances, it will be a matter for the District Court now to consider what steps are immediately required to safeguard the “natural and imprescriptible rights of the child” within the meaning of Article 42.5. Here the District Court may also wish to bear in mind that the principle of proportionality also comes into play, so that the fact that the parents have been found to be guilty of a grave moral failure within the meaning of Article 42.5 does not necessarily mean that in every case the children must be taken into some form of care, although it may, of course, do so. I stress, however, that this assessment is entirely a matter for the District Court.
44. It follows, therefore, that the interim care order must be quashed. I will accordingly remit the entire matter to the District Court in accordance with O. 84, r. 27(4).
P. v Q.
[2012] IEHC 593, White J.
UDGMENT of White Michael J. delivered on the 5th July, 2012
1. This is an appeal from an interim order of the Circuit Court of the 20th February, 2012, which directed the respondent to discover all e-mail accounts held by her and the mobile phone numbers xxxxxxxxx, (provider O2), UK sim card mobile number xxxxxxxx. US sim card mobile number xxxxxxxxx (provider T mobile), and in addition all text messages held in respect of the mobile phone accounts. The discovery period is six months prior to the order of the 20th February, 2012.
2. The parties were married on the 28th December, 1992. They have one child aged 14 who was born on the 5th March, 1998. The applicant is a German citizen and the respondent is a United States citizen. The applicant is an engineer; the respondent is a full time homemaker. The parties met in North Carolina, U.S.A and lived there for a number of years before moving to California where they lived for 6 years. The parties moved to Dublin in August 2007, when the applicant commenced a contract with a company based in Ireland.
3. The applicant issued proceedings in the Circuit Court on the 29th July, 2011, seeking a judicial separation and moved out of the family home in January 2012.
4. The background to the order of discovery is the disputed sexual activity of the respondent.
5. In his affidavit of the 30th January, 2012, grounding the application for discovery the applicant avers that he became concerned that the respondent was involved in a third party relationship prior to the breakdown of the marriage. On further investigation it became clear that the respondent had been accessing different websites with a sexual content. He commissioned an investigator to carry out surveillance on the respondent, who reported that she was meeting a male regularly at two hotels and booking into a room at the hotels.
6. Subsequently he retained the services of a computer expert, who accessed the sites the respondent was using.
7. The respondent alleges that the passwords for her laptop computer and the access codes for the sites were kept in a locked safe, which the applicant must have accessed illegally.
8. The applicant alleges that the respondent has been accessing gay, kink, fetish, bondage and swinger websites, having sexual intercourse with either one or a number of gay men, then photographing and videotaping this activity and putting it up on a website. He alleges that this has become an obsessive and addictive activity on the part of the respondent, which severely affects her ability to care for the child. He is also concerned that the child has or may come into contact with explicit sexual material involving his mother.
9. In the respondent’s affidavit sworn on the 20th February, 2012, she avers that she became involved in a loving relationship which commenced after the breakdown of her marriage in November 2011. She withheld this information from the applicant because she feared for her physical safety. She denies that she has been engaged in multiple affairs, and avers that she has accessed legal adult sexual content websites in the privacy of her own home, which is viewed also by her partner.
10. She accepts that her partner and herself have an exhibitionist streak and have posted explicit pictures and comments of their time together but neither of them has ever posted their names nor could they have been identified. The sites on which the photos were posted were subscription only websites, protected by personal codes and passwords. She further denies that she is engaged in risky sexual behaviour, and claims she has had only one partner, who loves and respects her.
11. She denies that the activity has interfered in any way with the child’s welfare and he has had no knowledge of this activity.
12. She is very upset about the allegation that the child is not her priority, as she avers his care has been the main focus of her life since his birth and the implication that she is a child abuser, has been deeply painful to her. She avers that she respects the applicant personally and as the father of her child, but that he has not reciprocated and believes that the application for sole custody is a desire on the applicant’s part to hurt her, and not based on the needs or welfare of the child.
13. By separate order of the 20th February, 2012, the Circuit Court pursuant to s. 47 of the Family Law Act 1995, appointed Professor Jim Sheehan to carry out an assessment. Professor Sheehan prepared a written report of the 8th May, 2012 and gave preliminary evidence before the Circuit Court on the 9th March, 2012.
14. Counsel on behalf of the respondent, has objected to the admissibility of this report, on the grounds that it was prepared subsequent to the order for discovery of the 20th February, 2012 and should not form part of the evidence considered on appeal.
15. There are conflicting allegations by the parties as to the motives for discovery. A court is entitled at it’s discretion to admit evidence not heard in the Circuit Court when the original order was made. It is a court ordered report permitted by statute and can be considered in the context of this appeal.
16. The respondent’s right to privacy is an unenumerated constitutional right and one respected by the European Convention of Human Rights.
17. The right to privacy received judicial recognition in Ireland in the case of Kennedy v. Ireland [1987] I.R. 587 when Hamilton P. stated at p. 592:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.”
18. Article 8 of the European convention on human rights states:-
“Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
19. The welfare of a child in custody and access proceedings is a paramount consideration of the court. This is set out in s. 3 the Guardianship of Infants Act 1964, as amended, which states:-
“Where in any proceedings before any court the custody, guardianship or upbringing of a child, or the administration of any property belonging to or held on trust for a child, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.”
20. In G. v. An Bord Uchtála [1980] I.R. 32, at p. 76, Walsh J. stated as follows:-
“The word ‘paramount’ by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had intended the welfare of the child to be the sole consideration it would have said so. The use of the word ‘paramount’ certainly indicates that the welfare of the child is to be the superior or the most important consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any given case.”
21. The court must respect the right of an adult whose marriage has irretrievably broken down, to engage in consensual sexual activity in private. Moral repugnance of certain types of sexual activity should not of itself be a ground for any restriction on custody or access to a child of the marriage, unless it is demonstrably shown that this activity affects the welfare of the child.
22. As distinct from the welfare of the child, the health and safety of the parent is also a consideration, as this can affect the welfare of the child, if anything untoward were to happen to the parent.
23. In respect of any sexual activity involving restraint or pain it has to be borne in mind that a person cannot consent to the infliction of harm. This is referred to in the Irish Current Law Statutes annotation of the Non Fatal Offences against the Person Act 1997 at page 26-05 which states:-
“The general rule, as confirmed by the House of Lords in R. v. Brown [1993] 2 All ER 75, appears to be that consent is not capable of constituting a defence to a charge of assault causing actual bodily harm, in Irish or English Law: other than in some exceptional circumstances, where the assault is deemed to be justified by the purpose of the act involving the risk. For example, a patient may lawfully consent to a surgical operation, although it would otherwise constitute a serious assault. It would appear that where an act has a social purpose which the law recognises to be valid, the degree of harm which may be caused by the act will be balanced against the value of that purpose.”
24. The court would be concerned for the health and safety of the respondent if she were involved in sexual activity with unfamiliar partners where restraint or the infliction of pain was part of the activity.
25. In respect of viewing websites with sexual content and posting photos or videos of sexual activity on websites it would be a cause for concern to any court that this material would be seen inadvertently by a child or that a child would learn about these matters.
26. Professor Sheehan has reported that the respondent because of her concerns that the applicant might tell the child, has told him that she and her partner look at sexual pictures of themselves put up on a website, and that the child on an air flight inadvertently saw a sexually explicit picture of her with her partner, which she immediately shut down.
Discovery in Family Law Cases
27. The issue of discovery has been addressed in family law proceedings in a number of cases. In M.O’R v. C.L. [1998] IESC 41 the High Court in a nullity case had permitted only limited discovery relating to any medical treatment the respondent had received over a period of seven years prior to the marriage. No medical records coming into existence after the marriage were to be discovered.
28. On appeal to the Supreme Court, O’Flaherty J. stated at p. 2 of the ex tempore judgment,
“I think that that really is to curtail the remedy of discovery, and while family law matters have to be treated with special care and decorum, nonetheless the rules of court apply in family law matters as they do elsewhere. The law is not in doubt. It is old law as laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co [1882] 11 QBD 55, which has been consistently followed by our courts. All documents relevant to matters in issue have to be disclosed. To quote from the judgment of Brett L.J. which is reproduced in the judgment of Kenny J. in Sterling-Winthrop Group Limited v. Farbenfabriken Bayer Aktiengesellschaft [1967] I.R. 97:-
‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contained information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly”, because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…’”
29. The general principles referred to by O’Flaherty J. in M.O’R v. C.L. were subsequently accepted and applied by O’Neill J. in F.P. v. S.P. (Unreported, High Court, 17th December 2002). In that case, the Circuit Court appointed a consultant psychiatrist to examine the parties and subsequently made an order for discovery but restricted sight of any relevant medical and psychiatric records in respect of the respondent to the consultant psychiatrist. The respondent appealed the order on the basis that it would enable the medical examiner to rely on hearsay evidence and that to allow the examiner to rely on the records of persons other than the parties to the proceedings was an extension of the role of the examiner which was permissible. Given that the applicant appeared content with the restriction, on the facts of the case, O’Neill J. did not interfere with the order and the restriction remained. However, O’Neill J, stated at p.11 of his judgment.
“I have no doubt that the Circuit Court judge imposed the restriction which he did in order to restrict to the minimum the intrusion into the privacy of the respondent, but in imposing that restriction he may very well have impermissibly cut down on the range of discovery to which the applicant was legitimately entitled”.
30. Referring to the judgment of O’Flaherty J. in M.O’R v. C.L., O’Neill J. stated:-
“Applying the principle thus stated to this case would seem to me to lead to a conclusion that the applicant/respondent was entitled to discovery of the material encompassed in the order of the Circuit Court judge, but without the kind of restriction imposed, so that he could himself use this material either to advance his own case or damage the case of the respondent”.
31. The family law jurisprudence referred to above is indicative of the general principle that the disclosure of material to a court in the administration of justice applies equally to in camera proceedings as in other proceedings. To permit otherwise could routinely deprive a court in matrimonial proceedings of proper disclosure were parties to be permitted to rely on privacy rights.
32. This general principle applies to the material ordered to be discovered by the Circuit Court in this case, as the material discovered could assist the applicant in advancing the case set out by him in the Family Law Civil Bill, and undermine the respondent’s case.
33. The issue for the court to determine is complicated by the allegation that the respondent’s privacy was breached illegally when the codes and passwords of her personal laptop were accessed, at a time subsequent to the commencement of family law proceedings Although disputed by the applicant, the evidence before this court heard on affidavit would indicate that the passwords and access codes to these particular websites were retained by the respondent in a locked safe. There are many occasions and opportunities in family law proceedings, where parties to the proceedings access information which the other party regards as private, but which has not been obtained illegally. In this case the acquisition of the codes is tainted by illegality.
34. I accept the submissions on behalf of the respondent, that there is a broad principle of constitutional law, that evidence which is obtained by invasion of a constitutional personal right such as a right of privacy must be excluded unless the Court is satisfied that the breach was committed unintentionally or accidentally (which could not be the case here) or is satisfied that there were extraordinary excusing circumstances which justify the admission of the evidence in its discretion”. It is respectfully submitted that there are no extraordinary excusing circumstances in this appeal. I would accept that principle as applying to a criminal prosecution, in order to protect the absolute right to a fair trial.
35. Where different constitutional rights have to be balanced, different principles apply.
36. A court should always be reluctant to admit evidence or approve discovery, which is tainted with illegality, but that is not to say that on all occasions where illegality is suspected or found, that the evidence so obtained is not admissible. This is particularly so when dealing with the welfare of a child.
37. If the court were only dealing with issues between the parties and not the welfare of the child, the court would have taken into consideration the sexual history of the marriage, and on balance would not make the order for discovery sought.
38. In this particular case, Professor Sheehan has stated in his report:-
“I have given some consideration to the question concerning the mother’s fitness for exercising ongoing custodianship of the child in the light of my critique of her judgment and its possible consequences. I would like the Court to request her to attend Caoimhe Ni Dhomhnaill over a couple of months to enable her to reflect on the meaning of all that is happening for the child. This request is in no way meant as a critique of her own choices about sexual positioning as an adult. It is intended, rather, as a place where she can reflect on the management of the boundary between herself and the child and between her adult world and his still-developing adolescent world. I would ask the Court to suspend judgment for a number of months on this matter of her fitness to exercise ongoing custodianship.”
39. The alleged sexual activity of the respondent has a direct bearing on the welfare of the child of the marriage.
40. The respondent has acknowledged in her affidavit and in her conversations with Professor Sheehan, that certain matters occurred which objectively in his opinion could have a bearing on the welfare of the child.
41. While the proceedings touching on the welfare of the child are adversarial in nature, there is an inquisitorial aspect to that portion of the proceedings dealing with his custody. Balancing the different constitutional rights and responsibilities the welfare of the child would take precedence over illegally gathered information touching on the child’s welfare.
42. In addition the constitutional right to privacy of the respondent is protected in “in camera” proceedings, as the information disclosed is confined to the parties, their legal representatives and the court. The respondent’s rights can be further protected by the addition of further conditions.
43. The court affirms the order of the Circuit Court with the following additional conditions:-
(1) The material furnished can only be used for the purposes of determining the welfare of the child of the marriage and not for the purposes of s. 16(2)(i) of the Act in respect of the behaviour of the respondent.
(2) Any material discovered which does not impinge on the child’s welfare, should be furnished but returned to the respondent, and not relied on by the court.
(3) In the event of any dispute the presiding judge of the Circuit Court should consider the material and decide on relevance.