District Court orders immediate custody and access hearings to prioritize children's best interests over procedural delay.

DISTRICT COURT DISTRICT COURT AREA OF BRAY DISTRICT NO. 16 N.W.

APPLICANT

- AND - D.C.

RESPONDENT Judgment delivered by Judge Brian O’Shea at Bray District Court on the 8th day of August 2018

1. The parties are married. They have two children of that marriage, D who is their 13- year-old son and M who is their 11-year-old daughter. The applicant seeks access to her son. The respondent seeks access to his daughter. Having regard to the general principle that unreasonable delay in determining the proceedings may be contrary to the best interests of the children the court determined that custody hearings relating the children that stood adjourned to a later date should be brought forward and heard and determined with the corresponding access applications.

2. This is a case that has a considerable history before the court with both parties making applications and counter-applications. For the sake of clarity, irrespective of who the applicant and respondent has been in previous proceedings and counter-proceedings this court will refer to NW as the applicant and to DC the respondent as set out in the title to these proceedings. Both parties have been informed of all of the various alternatives to custody and access proceedings including counselling, mediation, and reaching a written agreement. They engaged in negotiations and mediation, both of which failed. Between the conclusion of those processes and the commencement of the hearing in this matter the proceedings were adjourned to assist the parties, who were urged to try to reach agreement before the court was obliged to intervene. The parties have failed or refused to engage in a meaningful way with any of the suggested alternative routes and their differences are irreconcilable.

3. The parties are living separately within about 50 metres of each other. By operation of law they are joint guardians of both children. D currently resides with the respondent and M lives with the applicant.

4. The testimony consisted of allegations, counter allegations and denials. Both parties have allowed themselves to become enveloped in a bitter dispute. Their motivations for their individual behaviours have very little to do with the best interests of their children. This is because they are now incapable of looking at their family unit other than from the perspective of their own self-interests. While both parties reluctantly agree that both children must have access to both parents, the court has heard no evidence from either party regarding what they could do to encourage or promote the relationship between them and their children and/or to properly foster a relationship between those children and the other parent. For those reasons the testimony of the parties has been of no real assistance to the court in terms of the information that the court requires in order to reach a determination in accordance with the law. At this stage the sibling children are becoming more and more estranged and neither parent is doing anything to rectify this catastrophe. The family unit has broken down. In such circumstances this court is obliged to intervene. The manner of that intervention is governed by law.

5. Section 3(1) of the Guardianship of Infants Act 1964 as inserted by section 9 of the Children and Family Relationships Act 2015 (“the 1964 Act”) provides that: “Where, in any proceedings before any court, the … guardianship, custody or upbringing of, or access to, a child … is in question, the court, in deciding that question, shall regard the best interests of the child as the paramount consideration.” Subsection 3(2) goes on to state that in such proceedings “the court shall determine the best interests of the child concerned in accordance with Part V.” Part V provides, at section 31, that in determining what is in the best interests of a child, the court “shall have regard to all of the factors or circumstances that it regards as relevant to the child concerned and his or her family.”

These include, but are not limited to, a significant number of matters set out at paragraphs (a) to (k) of subsection 31(2) of the 1964 Act.

6. The court is satisfied, having heard the evidence, that several of the matters enumerated at section 31(2)(a) to (k) have no application to this case. The relevant matters in this case are: (1) the benefit to the children of having a meaningful relationship with each parent and of having sufficient contact with them to maintain same; (2) the views of the children; (3) their psychological and emotional needs; (4) the history of their upbringing;

(5) any harm they have suffered or are at risk of suffering; (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent; (7) the capacity of each parent to care for and meet the needs of the children and to communicate and co-operate on issues relating to them.

7. Given the level of disharmony evident in the case from the outset, the court decided that it would not be in the children’s best interest to be present for the testimony of the parties. Having regard however to the age and level of understanding of the children, the court also determined that their voice should be heard in the proceedings. There are many modes by which this may be achieved. The court considered that the most appropriate approach in this particular case was to speak to each of the children separately and in an age-appropriate manner. This was done in the presence of a neutral responsible female adult, and in the absence of either parents or solicitors, but with their agreement to do so. It very quickly became evident that neither child required a guardian ad litem for the purpose of the particular proceedings before the court.

8. Bearing in mind the provisions of section 31(6) of the 1964 Act, when the matter was being set down for hearing both parents were required to undertake not to speak to the children about their prospective evidence or to try to influence them in terms of what they might say to the court regarding their preferences. The court required both parents to give a sworn undertaking not to attempt to influence what the children might say. They were warned that a breach of such undertaking could amount to contempt of court, with imprisonment as a potential sanction. It appeared to the court that both parents took the undertaking and the warning seriously. Having spoken to the children the court is satisfied that the undertakings given were not breached.

9. Accordingly, the court met with both children separately in chambers. This was conducted in an informal way, but nonetheless in a manner that allowed the court to glean information that was relevant to its decision-making process. Both children were well presented and neatly dressed. They were both comfortable in their surroundings, chatty but respectful, and very willing to discuss all of the matters that were raised by the court. They are evidently intelligent beyond their years and were able to articulate their views and opinions without any want of vocabulary. They expressed their views freely. D gave a number of answers to the court that indicated that he was trying to please rather than being entirely truthful but he had understandable and forgivable reasons for doing so that became evident to the court as time went on. M was entirely honest with the court throughout the entire process. The court is satisfied that the views expressed by the children were done so without any undue influence. The left appearing pleased and content having taken the entire process in their stride.

10. Both children are happy in school. They both had favourite subjects and teachers. They both like horse-riding, and while D is no longer involved in this sport to the same extent as his sister, he speaks fondly of horse-riding as a younger child at the horse-riding school. Both children love both parents very much. Both children consider that it is important that they have a meaningful relationship with both parents and that they spend time with them for that purpose. Both children really love their sibling very much and both miss the company of the other. Both children are willing to make sacrifices in order that their siblings current needs are met. In particular M speaks very fondly of D and sees him as a catalyst for having fun within the family. Both children find the pressure of being the medium of communication between their parents very burdensome, D more so than M. They feel they are “stuck in the middle”. D confesses that there are times when she finds the relationship between her parents very confusing.

11. Subjectively M feels that the respondent keeps D with him and will only leave him visit in exchange for her visiting her father. D, on the other hand, states that the reason he is not staying with the applicant is because she went on a weekend away with her boyfriend having promised she would spend that time with D. D confessed that he was lying to the applicant when he told her that he could not visit her until M visited her father. He used his father rather than himself as the excuse for him not visiting, when in fact he was annoyed with her. Ironically this caused the applicant to think less of the respondent.

The version of events that D gave to the court is not entirely consistent with the text messages that were handed in to court. However, all of this behaviour is completely understandable from a child’s perspective. It illustrates that the children are having to develop tactics to survive in the hostile world that their parents have now created for them. This is only one of many instances that were relayed to the court. It is also notable that the confusion, chaos, disruption and anxiety to D’s life at home has unfortunately made its way into his schooling, with his principal and teachers noting his talents and abilities, but also noting that he cannot achieve his full potential because of poor organisational skills, arriving to school without essential items, and presenting incomplete homework. Both children find their father intimidating at times. They also find their mother “needy” and constantly seeking explanations for their behaviour or actions, including not attending at her home with the frequency that she might desire.

These are all matters that could be put right with minimal effort by the parties.

12. The court has already expressed its views regarding the testimony of the parties. The views of the children was somewhat different. They have a much greater insight into their parents circumstances than perhaps their parents realise. They admit being able to take advantage of disagreements between the parties. Those disagreements have become so frequent and predictable that the children experience periods during which they feel in control of the family unit. This perspective is not at all far from the truth. It arises from the “red mist” that has caused each parent to focus almost exclusively on their own needs rather than those of the children, and certainly not those of the family unit, and in particular not those of the other parent.

13. Any reasonable person would conclude that D and M are two confident, intelligent and beautiful children. However when one probes their circumstances with them it quickly becomes evident that they are anxious, D more so that M, and that their emotional and psychological needs are not being met. At present the emotional and psychological harm that they have suffered is mild but this is likely to become worse in the event of things continuing along the same vein.

14. One of the most worrying aspects of this case is the fact that both children express a desire to have a close relationship between each other and both parents, yet neither parent has expressed any real willingness to facilitate and encourage a close and continuing relationship between the children and the other parent. The ability of either parent to do so appears to lessen with the passage of time. At present neither parent had displayed any real capacity to care for and meet the needs of the children as siblings.

All communication and cooperation on issues relating to the children, and indeed everything else has completely broken down. It is obvious to any objective bystander that this situation cannot continue.

15. Having assessed the evidence in this case, coupled with the views or the children, and bearing in mind their best interests as defined in part by law, the court orders as follows:

a) Both parents will have joint custody of both children.

b) D will reside with the respondent who shall have primary care and control of him.

c) D will stay with the applicant from 5pm on each Monday until Tuesday at 10am or until the commencement of school.

d) D will visit the applicant from 5pm until 8pm on each Thursday.

e) M will reside with the applicant who shall have primary care and control of her.

f) M will visit the respondent on Tuesday and Friday from 5pm until 8pm. D will be present during such visits.

g) Each parent should try to ensure that when the child who does not reside with them is visiting they should provide a meal at which they can spend time together, or engage in some other activity for the same purpose.

h) Each parent will take full responsibility for each child attending school on time with all of their school equipment on any day that the child is residing or staying with them.

i) Any day upon which either child is absent from school must be recorded in a diary together with an explanation for such absence and a medical certificate if appropriate. This diary must be brought to and made available to the court for inspection on any date upon which the matter is before the court.

j) School holidays, bank holidays, Christmas and Easter holidays shall not affect the circumstances of residency or visits, save with the express written agreement of both parties.

k) Neither party will speak in a manner or make any communication or publication by any means that is disparaging of the other party in the presence or hearing, or within procurement of either child.

l) Neither party will ask either of the children to communicate anything to the other party that is inappropriate or burdensome having regard to the age and level of understanding of that child.

16. During the course of these proceedings the respondent informed the court that he will not force D to do anything that he does not want to do. This was said in reply to the court’s suggestion that D should visit the applicant during the week of the adjournment of the case pending a determination. There is no suggestion of any child being forced to do something that they do not wish but the court must have regard to the requirements of section 31 of the 1964 Act. Both parents must be willing to promote and encourage a positive relationship between the children and the other parent. There is no legitimate reason not to do so. Both parties should be supportive of the visits that have been ordered with the other parents. Surely it is not beyond their respective abilities to convince the child that resides with them that it is beneficial to visit the other parent and sibling. If the parties refuse to do this then the court has a range of powers available to it in that regard. While these powers have not been utilised to date the court will not resile from invoking such powers as are necessary to ensure that the intent of the legislation is met and the orders of the court are complied with.

17. This court will not tolerate any further the best interests of the children being side-lined in the manner in which they have in recent times. These children must not and will not be used as devices between the parties to win arguments against each other. The court has made a number of orders designed to rectify the concerns that arise in this case. The level of acrimony between the parties is currently so significant that the psychological wellbeing of the children is being eroded. The most worrying aspect this case is that the children have little or no access to each other as siblings. If this continues, or if there is any breach of any of the court orders, it may well become necessary for this court, of its own motion, to order the involvement of the Child and Family Agency with a view towards determining whether a supervision order may be necessary. If the parties are not able to raise all their children in a manner that has regard to those children’s best interests then it is the duty of the court to intervene.

18. Any attempt by either parent to discuss or confront either child about any view that they may have expressed to the court will be deemed to be contemptuous. The only reason the parties have been informed about some of what the children stated to the court is so that they could understand the court’s reasoning in terms of the orders it has made. The children should be told the outcome of the case but not the evidence that led to it.

19. This case will be listed for review on 7 November 2018. For the avoidance of doubt, the purpose of the review is not to rehear the matter but rather to monitor compliance with the orders of the court and to iron out any unforeseen problems that may arise owing to those court orders.