Court grants interim guardianship to respondent and extends access while ordering CFA investigation.

DISTRICT COURT DISTRICT COURT AREA OF BRAY DISTRICT NO. 16 S.C.

APPLICANT

- AND - Q.B.

RESPONDENT Judgment delivered by Judge Brian O’Shea at Bray District Court on the 29th day of August 2018

1. The parties are the biological parents of LC, a 12 year old girl. About 4 years ago the applicant married MB. He had been her partner for about 7 years prior to the marriage.

LC has lived all her life with the applicant and MB. The applicant and MB have two younger children aged 6 and 2 years old. All 3 children have been brought up together and view each other as siblings. Custody and access arrangements have for the most part been amicable between the parties. In reality the applicant has had primary care and control and the respondent has enjoyed extensive access. This included weekends and extended access during holiday periods. A number of years ago the respondent was afflicted with a drug addiction and served a sentence of 2 years imprisonment. His access was understandably curtailed during this period. In order to regularise matters a written agreement was entered by the parties dated 4 April 2018. However, contrary to the agreement, LC began to overstay her visits with the respondent and eventually did not return to the applicant at all. In those circumstances the applicant seeks directions from the court pursuant to section 11 of the Guardianship of Infants Act 1964 as inserted by section 9 of the Children and Family Relationships Act 2015 (“the 1964 Act”).

2. This case has a very limited history before the court with the respondent previously applying for guardianship. On 4 July 2018 guardianship was granted on an interim basis and the matter was adjourned until 5 September 2018. There was a conflict on the evidence regarding whether or not the applicant was aware of the application for guardianship. She testified that she was not. It would be highly unlikely that the applicant would not attend court as a respondent to such application, yet a certificate that she signed for the receipt of the notice of application was produced to the court. She denied that the signature was hers and could offer no explanation as to who else may have signed. On the evidence, as a matter of probability, the court has concluded that the notice of application was received at her home, although perhaps not by her. For the avoidance of doubt, the court has not made any determination regarding the credibility of either party on that basis of such finding.

3. This court has heard a significant amount of testimony from the parties. To the credit of the solicitors for both parties, they concentrated their questions in such a manner as to focus on the real issues in the case. Significantly, it emerged from the evidence that both parents encourage the involvement and continued involvement of the other parent in LC’s upbringing. Further both parents agree that the other parent should have substantial access for the purpose of the continued maintenance of the current bond that LC has with each parent.

4. The function of the court in this matter is governed by law. Subsections 3(1) and 3(2) of the 1964 Act dictate that in a case of this nature the best interests of the child must be the paramount consideration. Section 31 of the 1964 Act dictates 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.

5. The court is satisfied, having heard the evidence, that the relevant matters in this case are: (1) the benefit to the child of having a meaningful relationship with each parent and of having sufficient contact with them to maintain same; (2) the views of the child; (3)

her psychological and emotional needs; (4) the history of her upbringing; (5) the child’s social, intellectual and educational upbringing and needs; (6) any harm she has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being; (7) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent; and (8) the capacity of each parent to care for and meet the needs of the child and to communicate and co-operate on issues relating to her.

6. Further, subsection 31(3) obliges the court to have regard to household violence that has occurred or is likely to occur in the household of the child, or a household in which the child has been or is likely to be present, including the impact or likely impact of such violence on, amongst other things, the safety of the child and other members of the household concerned, together with the child’s personal well-being, including the child’s psychological and emotional well-being.

7. Having regard to the age and level of understanding of the child, the court determined that her voice should be heard in the proceedings. The court considered that the most appropriate approach in this particular case was to speak directly to the child in an ageappropriate 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 the child did not require a guardian ad litem for the purpose of the particular application before the court, at least at the interim stage.

8. Bearing in mind the provisions of section 31(6) of the 1964 Act, having spoken to the child the court is satisfied that no attempt was made to influence or coach her in terms of her views as expressed to the court. She was however in a position to comment on the issue of her mother signing for the notice of application for guardianship. She stated that her aunt had told her that this was an issue in the case. This should not have occurred, and while the court is not at all impressed that it did, it was not such as had any material bearing on the veracity of the child’s evidence.

9. In the event, the court met with the child 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. The child was very well presented and neatly dressed. She was comfortable in her surroundings, although she became upset when recounting certain matters. She was very respectful and most willing to discuss all of the matters that were raised by the court. She is an intelligent girl and was able to articulate her views and opinions without any want of vocabulary. She expressed her views freely. She was entirely honest with the court throughout the entire process.

10. Up until recently LC had a strong academic record. This has deteriorated rapidly in recent times, with the applicant being summoned to the school for the purpose of discussing same. LC is particularly strong in sport and plays at a level beyond her years. She loves both of her parents very much. She also dearly loves her siblings. She became very upset on every occasion where she mentioned her father having been incarcerated. She found the whole experience of his imprisonment hugely traumatic.

11. LC has alleged that MB has occasionally assaulted her; not in a serious way, but in circumstances that would nonetheless amount to assault. She also alleges that she witnessed assaults by MB on her siblings on numerous occasions. She relays this in a manner that makes it likely to be true. She says that he has “dragged them up the stairs” and “always slaps them.” She alleges that MB hits the older sibling “hard” and “it looks really sore.” It is possible that she is lying but not likely. The applicant and MB deny the allegation. Indeed the applicant testified that LC “gets on great” with MB. MB testified that he occasionally “gives out” to LC but never struck her. The applicant did however confess that on occasion MB may have “smacked” the children. LC also reports that MB shouts at the applicant and this makes her feel very unsafe. LC informed the court that she never felt brave enough to announce this until now. She does not feel safe in the presence of MB. She does however feel safe living with the respondent because that impugned acrimony and violence is not present. While the court is in no doubt that both parties love LC very much, subjectively she only feels loved, wanted and safe with the respondent. Finally, LC draws no real distinction between the different schools suggested by both parents, although she is aware that the applicant does not wish her to go to [School A]. She is aware that she may have to forfeit her place on the various teams for which she plays at her current school if she was to move to the one closer to respondent.

12. Having assessed the evidence in this case, coupled with the views or the child, and bearing in mind her best interests as defined in part by law, the court is satisfied that: (1)

the parties agree that it is to LC’s benefit to have a meaningful relationship with each parent and to have sufficient contact with them to maintain same; (2) LC’s views have been ascertained free from influence; (3) LC’s psychological and emotional needs are not being met in the environment at the applicant’s home; (4) the history of her upbringing is now in question in light of her assertions, which are probably true; (5) LC’s social, intellectual and educational needs could be met at either of the schools suggested by the parties; (6) as a matter of probability LC has suffered, and is at risk of suffering, some psychological harm as a result of household violence; (7) both parties are willing and able to facilitate and encourage a close and continuing relationship between LC and the other party; (8) both parties have the capacity to care for and meet the needs of LC and to communicate and co-operate on issues relating to her.

13. It appears to the court that it may be appropriate for a supervision order to be made with respect to LC and/or her siblings and therefore the court will adjourn the proceedings and direct the Child and Family Agency to undertake an investigation of the children’s circumstances.

14. In the interim the court makes the following orders:

a) Extend the interim appointment of the respondent as a guardian to LC.

b) LC will reside with the Respondent who will have day-to-day control.

c) LC will attend at [School A]. In the event that the court subsequently orders that LC should reside with the applicant then LC may, at the applicant’s discretion, be transferred to [School B].

d) Maintenance payments are suspended until further order.

e) LC will have access to the applicant on 3 days per week to be agreed between the parties. The duration of the access on each occasion will be for 4 hours. LC’s siblings should be present at such access in so far as is reasonably possible. The days and times should be agreed having regard to LC’s schooling. Liberty to apply.

f) MB will have no direct or indirect contact with LC until further order.

g) Any day upon which LC is absent from or late for school must be recorded by the respondent 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.

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

i) Neither party, or their family members, including in particular the respondent’s sister, will speak to 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 the procurement of LC.

15. This hearing date on 5 September 2018 is hereby vacated and the matter will stand adjourned until 3 October 2018. At that stage the Child and Family Agency should be in a position to indicate the likely duration of its investigation. Consideration to the appointment of a guardian ad litem may arise during or upon the completion of the investigation. The matter may be re-entered at any stage for that purpose. If a potential conflict of interest arises in relation to the various children then it may become necessary to appoint more than one guardian. Again, the matter may be re-entered for this purpose. It is appropriate to seek a short updated report from LC’s teacher or the school principal regarding her progress.

16. LC should be informed the outcome of the case but not the evidence that led to it, and certainly nothing about what the future holds as the current orders are interim in nature.