High Court dismisses committal application due to late service of order and finds no breach warranting adverse orders.

[2019] IEHC 15

THE HIGH COURT

FAMILY LAW

[2013/40FJ]

IN THE MATTER OF THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACT 1998 COUNCIL REGULATION (EC)

NO. 44/2001

BETWEEN

C. G.

APPLICANT

AND

B. G.

RESPONDENT

JUDGMENT of Mr. Justice Binchy delivered on the 16th day of January, 2019

1. This judgment relates to two motions. The first in time was issued by C. G. (the “applicant”), the former husband of B. G. (the

“respondent”), and which he issued on 11th July, 2018 (the “Applicant’s Motion”). The second motion in time was issued by the

respondent on 25th October, 2018 (the “Respondent’s Motion”). The motions were heard by the Court on 19th and 20th December,

2018. Both motions, taken together, constitute the latest development in a saga of litigation that began soon after the birth of their

daughter, A., in 2008. A. was born in that year in another European country which I shall hereafter refer to as “EUC”. In November,

2008, the respondent issued divorce proceedings in EUC. Since then, there have been three court rulings in EUC concerning the

parental authority, access and accommodation rights relating to A., a ruling of this Court on 13th August, 2013, pursuant to an

application made by the applicant under the Hague Convention and Council Regulation (EC) No 2201/2003 (“Brussels II Bis”), an

appeal from the decision of this Court to the Supreme Court, which in turn referred three questions to the European Court of Justice

(the “ECJ”) which delivered its decision on the questions referred to it on 9th October, 2014. Following upon that decision, the

Supreme Court delivered its judgment in the appeal of the applicant against the decision of this Court on 6th February, 2015, whereby

it upheld the decision of this Court, (G v. G [2015] IESC 12). The decision of the Supreme Court sets out in some considerable detail

the history of the litigation leading up to the date of that decision, and it is not necessary to do so again for the purposes of these

motions. The effect of this decision was that the removal by the respondent of A. to this jurisdiction on 12th July, 2012, was found to

be lawful and further that A. had been habitually resident in this country from 12th July, 2012, and accordingly the application of the

applicant to return A. to EUC was refused. The effect of this decision was to put an end to any possibility that the courts in this

jurisdiction would order the return of A. to EUC and on 31st July, 2017, the parties entered into a settlement which was made on

order of this Court ( the “Consent Order”). One might have hoped that after so much litigation, over such a protracted period that

that settlement would have put an end to the matters in dispute between the parties, at least insofar as A. is concerned, but

regrettably the dispute between the parties over access to A. has erupted again, although the context is now very different.

2. The applicant is a practising lawyer in EUC. Previously he had representation in this jurisdiction, but having incurred considerable

expense here (€25,000) he chose to represent himself in relation to these motions. Notwithstanding that the applicant has an

excellent command of English, this gave rise to some procedural irregularities and a degree of procedural confusion, but nonetheless

the principal issues raised by the applicant were clear. In his motion, the applicant claims that the respondent refuses to obey the

terms of the Consent Order by preventing the applicant from having access to A. in EUC, and the applicant seeks an order for the

committal of the respondent on the basis that she has acted in breach of the Consent Order. In his grounding affidavit dated 23rd

July, 2017, the applicant states the following as regards non-compliance by the respondent with the Consent Order:-

“First, [the respondent] said she lost [A.’s] passport, which is a [EUC] passport, and at the same time wrote to the [EUC]

embassy that she refuses another [EUC] passport be delivered to A.

Second, last Christmas I went to the garda station for my access to A.: a policeman phoned to [the respondent] to ask

her this access.

[The respondent] refused this access and the policeman made a report (pulse no. 14653356).

Third, [the respondent] and [A.] emailed to me and my sister that [A.] does not want and will not go to [EUC] during

these August holidays.

I served to [the respondent] the true copy of the Order with penal endorsement of 31st July, 2017.

So I request:

- For a committal order for the execution of the High Court Order dated 31st July, 2017 (2013/40/FJ),

- for an order dispensing with the consent of [the respondent] to the issue of a [EUC] passport for A.;

- for an order vacating the High Court Order dated 31st day of July, 2017, and dismissing [the respondent] of her

appeal against the High Court judgment dated 18th day of December, 2013 (2013/40/FJ).”

3. In a separate affidavit of service dated 11th day of July, 2018, the applicant avers that he served a true copy of the Consent

Order, with penal endorsement endorsed, on the respondent on 26th June, 2018.

The Consent Order

4. The principal terms of the Consent Order are as follows:-

1. That the primary residence of A. shall be with the respondent in Ireland;

2. that the applicant shall have access to A., in EUC, in August each year on such dates as are agreed between the

parties, with the respondent to collect A. at the end of the access and return with her to Ireland;

3. that the applicant have access with A. in EUC from 27th December to 5th January each year;

4. that the applicant have access to A. in EUC from 17th March to 25th March each year;

5. that A. be returned to this jurisdiction, into the custody of the respondent, no later than the dates above mentioned…;

6. the parties to make application in EUC, to the relevant courts, vacating orders previously made in EUC in respect of A.

and making orders in the same terms as to residence and access as are provided in the Consent Order;

7. that the parties will make application to the courts in EUC discontinuing all enforcement proceedings, and to the extent

legally possible, all criminal proceedings, if any, between the applicant and the respondent in respect of A. in that

jurisdiction and, to the extent legally possibly, vacating all orders previously made in EUC in those proceedings.

Respondent’s Application

5. By her application, the respondent seeks to vary the Consent Order, in particular the terms of that order providing for access by

the applicant to A., to the extent that access should be restricted to electronic access through Skype and/or Facetime calls and also

through email and letters. The reasons for such stringent curtailment as to access are set forth in the grounding affidavit of the

respondent of 24th October, 2018, and may be summarised as follows:-

(i) The respondent claims that the applicant has failed to take the steps necessary to vacate existing orders in EUC, and

to replace those orders with mirror orders to those provided for in the Consent Order. The respondent says that she

herself took steps to do this through her lawyers in EUC, but was unable to do so owing to the requirement to obtain an

“Article 39” Certificate, being the Certificate required by Article 39 of Brussels II Bis. On the other hand, she had

discovered (and exhibited) a letter sent by a judge in EUC to the applicant inquiring as to the intentions of the applicant

in light of the settlement between the parties as reflected in the Consent Order, and the respondent was concerned that

orders within EUC remain extant, thereby preventing the respondent from returning to EUC with A., in case those orders

might require A. to remain in EUC. As we will see later in this judgment, those fears were well-grounded because it

appears that the investigating judge in EUC was willing to discontinue the investigation and, in effect, close the file

because of the settlement between the parties, but the applicant would not give him authority to do so.

(ii) The respondent relies on events that she claims that occurred in the month following the Consent Order when A.

travelled to EUC to visit the applicant, as provided for in that Order, and the impact of those events upon A. The

respondent was present for some of this access at the request of the applicant, owing to business commitments of the

applicant. According to the respondent, the behaviour of the applicant deteriorated during her time in EUC, to the point

that on one afternoon “he lost all control and screamed and shouted” at both the respondent and A. The respondent also

said that the applicant left the respondent and A. for three days, stranded on an isolated holiday camp with no transport

and inadequate provisions.

(iii) The respondent further relies on events that she claims occurred in November 2017. She relates how she made an

application to the District Court in this jurisdiction in relation to maintenance, which was scheduled for hearing on 15th

November, 2017. She says that the applicant did not avail of midterm break access the previous month, as provided for in

the Consent Order. For his part however the applicant says that this was by arrangement with the respondent, since he

was required to attend the District Court the following month, in connection with the respondent’s application for

maintenance and he could not take additional time out of work so as to be in this jurisdiction in both months. He says

therefore that he agreed with the respondent that he would exercise what was to be his midterm access to A. (in

October, 2017) in November, 2017 instead. In her grounding affidavit however, the respondent says that when exercising

this access, she and A. were subjected to violent and abusive behaviour on the part of the applicant on the street, as a

result of which the respondent applied for and obtained a protection order (ex parte) on 21st November, 2018. The

respondent avers in her grounding affidavit that this protection order “continued until July, 2018 and this deponent is

making inquiries as to the current status of the protection order and the application before the District Court.” However,

at the hearing of these motions, the applicant said that he returned to Ireland in June, 2018 for the full inter partes

hearing of the respondent’s application for a protection order, and that the application was dismissed by the District

Judge. This was not disputed by the applicant at the hearing of these motions and it is difficult to understand how she

could have averred in October, 2018 that she was making inquiries as to the status of the protection order.

(iv) The respondent avers that in November, 2017, she and A. were subjected to violent and abusive behaviour from the

applicant on the street in the town where she resides, and that it was this behaviour that caused her to apply for a

protection order. During the course of her evidence at the hearing of these motions the applicant expanded on these

events and I will address that evidence and that of the applicant in regard to the same, presently. She also avers that

following those events, the applicant was parked for two to three hours outside the respondent’s home, but remained in

the car. She then concludes this part of her affidavit evidence by stating that due to the general conduct of the

applicant, and in particular his conduct in EUC in August, 2017, and in Ireland in November, 2017, she and A. are in fear of

the applicant.

(v) The respondent expresses one other concern in relation to the applicant’s conduct in her affidavit, and that is that

the applicant has sought to obtain an EUC passport for A. The applicant accepts that he made this application in light of

the fact he had been informed by A. (by email) that her passport had been lost.

6. The applicant delivered a second affidavit dated 17th October, 2018, in support of his application, as well as an affidavit of 14th

November, 2018, by way of replying affidavit to that of the respondent in respect of her application. In his affidavit of 17th October,

2018, he accuses the respondent of being motivated by a desire to deprive him (the applicant) and his family of A. He goes on to

make a number of accusations and allegations concerning the motivation and character of the respondent, and to exhibit certain

documentation which he considers is supportive of his opinions in this regard, but it serves no useful purpose to repeat these

allegations in this decision. The issue raised by the applicant in this affidavit that is of most concern to this Court is the allegation

that the respondent has deliberately engaged in a process of alienating A. from the society of her father, and specifically, in the

words of the applicant, has engaged in parental alienation syndrome. The applicant says that, in the best of interests of A., having

regard to the length of time which she had been living in Ireland with the respondent, he had agreed to the Consent Order in July,

2017, but in light of a number of matters that have since occurred he is now requesting this Court to set aside the Consent Order and

instead to award the applicant custody of A. from this point onwards. The matters upon which the applicant relies in support of this

application are:-

(i) The respondent has refused to allow the applicant access to A. since August, 2017;

(ii) since the loss of A.’s EUC passport, the respondent has prevented the issue of another replacement EUC passport to

A. and;

(iii) the respondent obtained a protection order, ex parte, which had the effect of prohibiting the applicant from exercising

his right of access to A.

(iv) The applicant also relies upon a number of historical events which are really not relevant for present purposes, save

insofar as they may support his contention that the respondent has engaged in conduct intended to alienate A. from the

applicant. The most significant complaint in this regard is the undisputed fact that on two occasions, firstly in EUC when

A. was aged three, and secondly in Ireland when A. was aged five, the respondent reported to the authorities in EUC and

in this jurisdiction that the applicant had sexually abused A. These allegations were investigated and dismissed in each

country, the authorities in each case having found no basis to support the same.

7. In his replying affidavit of 14th November, 2018, the applicant denied the allegations made by the respondent in relation to the

time spent by A. in EUC with the applicant in August, 2017. He claims that this holiday went very well. He explains that it was

necessary for him to call for the assistance of the respondent and the respondent came to stay. He claims that even then things

were going well until the respondent discovered that the applicant had a new life partner. He says the respondent then became

agitated and lost her temper when the applicant had to leave the holiday camp for a few days owing to urgent demands of work.

8. The applicant then goes on to deal with the incident that occurred when he attended in Ireland in November, 2017 to respond to

the maintenance application of the respondent in the District Court. His characterisation of these events is that the respondent would

not leave the applicant alone with A. and when he, the applicant insisted on this, the respondent attempted to leave with A. and

there then ensued a scene which resulted in the gardaí being called.

9. The applicant avers that he attended in the District Court for the inter partes application for a protection order on 20th June, 2018

and again on 18th July, 2018, when the application was dismissed. He claims that the District Judge expressed astonishment that the

respondent refused to allow A. to be present alone with the applicant when exercising his access in November, 2017.

10. In relation to A.’s passport, the applicant avers that he was first informed, by e mail of 9th October, 2017 from A. herself, that

she had lost her passport when using it as a prop in a school play. However, the applicant exhibits correspondence from the EUC

embassy in this jurisdiction dated 14th September, 2017, from which it is apparent that the respondent had previously had

correspondence with that embassy requesting that a new passport should not be issued to A. without her approval. On the basis of

this correspondence, the applicant, in effect, submits that the loss of A.’s passport is a contrivance designed to prevent from

travelling to EUC.

11. In relation to the proceedings in EUC about which an examining magistrate had made inquiries of the applicant, whereby he

effectively effectively asked the applicant to withdraw his complaint in light of the Consent Order, the applicant says that he did not

wish to do so because if he withdrew the complaint it would “nullify the criminal offences committed by [the respondent]”. Instead,

he wanted these complaints to expire. He says that the only reason that he did not want to withdraw these complaints is because

the respondent would not grant him access to A. as provided for in the Consent Order.

The oral evidence of the parties

12. Each of the parties gave oral testimony in addition to their evidence on affidavit. Unsurprisingly, there are differences between

them as to what occurred when A. was in EUC on holidays with the applicant in August, 2017, and in particular as to what occurred

when they were joined by the respondent. It is impossible for this Court to reconcile the differences in these accounts and there is

little to be gained by attempting to summarise here the accounts given by each of the parties as to what occurred in EUC in August,

2017, or indeed what occurred here in Ireland in November, 2017. For reasons that will become apparent, it is unnecessary for the

Court to arrive at any conclusions in relation to these events. What is clear however is that the parties had heated arguments

amongst themselves in the presence of A, which must have been very unpleasant and disturbing, if not frightening for A.

13. Whatever exactly occurred in August and November, 2017, it appears that the applicant has had access to A. previously over the

years and that the respondent accommodated this access freely, even allowing the applicant to stay in the household with the

respondent and A. while visiting Ireland. It is somewhat ironic therefore that matters should have deteriorated rather than improved

following upon the Consent Order.

14. Although, as I have said above, it is very difficult, from the competing accounts of the parties, for this Court to arrive at any

conclusions regarding the events that ocurred in August and November, 2017, it is possible to identify a number of issues of fact

about which there can be no dispute .

15. First, there is the Consent Order itself of 31st July, 2017, which could not be more clear in its terms.

16. Secondly, A. holidayed in EUC with the applicant in August, 2017, in accordance with the terms of the Consent Order. At the

request of the applicant, the respondent attended for the third week of this holiday to assist the applicant. At the end of this holiday,

the applicant and the respondent had a row in front of A. The applicant maintains that A. had a good holiday and enjoyed herself; the

respondent said that she did not, although the respondent’s views in this regard are based on what she says was relayed to her by A.

17. Thirdly, when these motions were initially before me, I directed the procurement of a report, pursuant to s. 47 of the Family Law

Act 1995, for the purpose of assisting in the determination of the motions (which report I refer to in more detail below). The authors

of the report met with and discussed with A., inter alia, her relationship with her parents and more specifically the events of August

and November, 2017, as A. remembered those events. A. reported some unhappiness about the holiday in August, which I summarise

at para. 35 below. However, it must also be observed that it is clear from the terms of the report that, during the course of this

interview, A. was very worried that she might be returned to EUC, and this may have coloured how she chose to describe the holiday.

Indeed, it appears A. may have thought that the purpose of the interview was to consider the possibility of her being returned to live

with her father in EUC, and it is not clear how she came to think this.

18. In the course of September, 2017, the respondent had communications with EUC embassy in Dublin in the course of which she

directed that no new passport should be issued in respect of A. without her consent. At this point however, A.’s passport was not

missing and so it is difficult to understand the necessity for this correspondence. It was not until the following month that A. emailed

the applicant, in October, 2017 to say that she had lost her EUC passport, which she said she had taken to school to use as a prop in

a school play.

19. The applicant did not exercise his right of access to A. during the mid-term break in October, 2017. He claims that it was agreed

between the parties that he would do so instead the following month, November, 2017, when he was required to attend the District

Court in this country in connection with a maintenance application of the respondent.

20. In the course of exercising this access in November, 2017, a row erupted, in public, between the applicant and the respondent.

Each blames the other for this row. The result of the row was that the applicant did not get to have access to A., as planned, and

the respondent immediately applied to the District Court for a protection order, on an ex parte basis, which she obtained.

21. The respondent says that she had brought to this meeting passport form for signature by the applicant, so that the parties could

apply for an Irish passport for A. Because of the row, these forms were not signed. The applicant does not deny that this is so.

22. On 29th November, 2017, the applicant wrote to the respondent (by email) informing the respondent that he had booked tickets

to come to this country on 26th December, and to depart with A. on 27th December, returning on 5th January, in accordance with

the Consent Order. He inquired if A. would have a passport available for this purpose. This email also dealt with issues as to

maintenance payments. While the respondent replied to issues concerning maintenance payments, she made no reply in connection

with the proposed access. In the course of her evidence, she explained this simply by saying that A. did not have a passport, and she

added:“there was also the protection order”, by which I took her to mean that the applicant was restrained from exercising his right

of access to A. by reason of the protection order, which, strictly speaking ,was not correct.

23. At around this time, the applicant issued civil proceedings in EUC against the respondent. The precise date of the proceedings is

not known to me, but the investigating judge, in a letter to the applicant dated 25th May, 2018, says that he received a letter filing

the proceedings on 4th December, 2017. In view of the Consent Order, the applicant was invited, on 25th May, 2018, by the

investigating judge, to discontinue these proceedings, but he declined to do so. In his evidence, the applicant said it was his

preference to let the proceedings expire rather than to withdraw the same, which would have different implications, favourable to the

respondent.

24. The applicant took no steps to obtain “mirror orders” in EUC, reflecting the terms of the Consent Order. The respondent gave

evidence that she did try to do so, but was unable to obtain one of the documents required to do so. In any case, as a lawyer in

EUC, the applicant would have been far better positioned than the respondent to secure the requirements of the Consent Order in

this respect..

25. On 15th December, 2017, the respondent sent an email to the applicant informing him that it had come to her attention, through

the EUC embassy, that the applicant had applied for a passport for A., without the approval or signature of the respondent. In this

email, the respondent said that A. did not want to go to visit the applicant in EUC for Christmas because of his “bad unpredictable

behaviour” and his “temper tantrums”. She said that she wished to make it clear, on behalf of A., that A. did not wish to go to EUC

for Christmas and that it would be “totally immoral and unjust to coerce [A.] into travelling against her will. Such an action would no

doubt leave her in a state of fear and anxiety”. In other words, the respondent made it clear that contrary to the Consent Order she

would not facilitate travel by A. to the applicant in EUC for Christmas 2017, on the grounds that A., did not wish to visit the applicant

in EUC and that it would not be in her best interests to do so in the circumstances.

26. The applicant travelled to this country on 26th December, 2017, for the purpose of bringing A. to EUC for post Christmas holidays

with the applicant, in accordance with the Consent Order. Because of the protection order however, he went to the local garda

station to ask for their assistance. The respondent declined to make A. available to travel to EUC. The respondent said in her oral

testimony that this was because A. had neither an Irish passport nor an EUC passport at this time, and in any case it was against A.’s

wishes.

27. Prior to this, on 20th December, 2017, the respondent had emailed the applicant stating that as he had failed to respect the

Consent Order, he left her with no option but not to have the order mirrored in EUC. In this email she went on to say that the

applicant’s behaviour and attitude made the Consent Order unmanageable. The clear implication of this email is that the respondent

no longer considered the Consent Order operative, owing to the actions of the applicant.

28. The applicant has had only email correspondence with A. since he last met with her in this country in November, 2017. That

correspondence could only be described as being upsetting in character. For example, on 4th January, 2018, A. emailed the applicant

to say that she did not wish to speak to him, that she did not wish to receive any presents from the applicant (or his father or sister,

A.’s paternal grandfather and aunt respectively) and that she has had her best Christmas ever because the applicant was not

involved. Later in the year, following upon her birthday on 14th July, A. emailed the applicant to say that she did not wish to go on

holidays to EUC in August and she did not want any presents from him. Notwithstanding the upsetting nature of these e mails

however, the applicant responded by e mail affectionately to A.

29. The applicant served copy of the Consent Order, with penal endorsement, on the respondent, on 26th June, 2018.

30. In July, 2018, the protection order, previously granted ex parte, was vacated by the District Court following an inter partes

hearing.

31. It is clear from all of the above that, by December, 2017, the arrangements to which the parties had agreed on 31st July, 2017

had become inoperable. Far from taking any steps to mirror the Consent Order in EUC, the applicant either initiated or continued

proceedings against the respondent in that jurisdiction, while at the same time attempting to exercise rights of access as agreed and

set out in the Consent Order. For her part, the respondent took the view that A. should not be obliged to travel to EUC in accordance

with the Consent Order, if she did not wish to do so. However, the appropriate course for either or both of the parties to have taken

at this time would have been to re-enter the proceedings with a view to varying the terms of the Consent Order on the basis of the

events that occurred between August and November, 2017. Paragraph (XI) of the Consent Order expressly gave the parties liberty to

apply to the court.

32. In the course of his evidence, the applicant said that, while he had originally had a good relationship with A. something was now

“broken”. As recently as Easter, 2017, the entire family went to Euro Disney and relations with A. were good. The applicant is deeply

upset that A. never calls him “Daddy” and he believes that the respondent has done everything possible to break the bond between

the applicant and A. Moreover, the applicant said that he does not think it is possible for him to have a proper relationship with A. in

Ireland, because he is not “in his element” in this country.

Section 47 report

33. As mentioned earlier, when this matter first came before me I directed the preparation of a s. 47 report, which was made available

to me for the full hearing of these applications. The report was prepared by Dr. Mairéad Ní Eidhin and Ms. Carmel Jennings of

Caidreamh, Family and Practitioner assessment and therapeutic services (whom I shall hereafter refer to together as the “Assessors”).

For the purposes of preparing the report, they met with the applicant, the respondent and A. Dr. Ní Eidhin also gave evidence at the

hearing of these applications.

34. The Assessors noted that both the applicant and the respondent wanted to bring up a great deal of their past negative

interactions and history and needed, in the words of the report, “significant redirection to the subject of their daughter [A.] during

their time with this team. Thus, it is difficult for this team to imagine how they can completely keep such negativity from [A.] when

they meet or when there is any discussion about one of them with [A.].” They also noted that the applicant stated to them it was

not his intention to remove A. to EUC should he be granted custody, indicating an ability on his part to priorities A.’s needs. They also

noted that in the past the respondent has welcomed the applicant into her home to facilitate contact with A., and they expressed

the hope that this positivity might yet be used again.

35. However, they found that A. was very distressed at the thought of being taken to EUC by the applicant. They discussed with A.

her time in EUC in August 2017 and found that some of A.’s account of events was contradictory, although overall it was negative,

and consistent with how the respondent claims A. described the holidays to the respondent. A. described how she found the

seawater to be very cold and that she was forced to go into the sea even though the waves were very big. She also reported to the

Assessors that she stayed in an apartment with the applicant and his sister, A.’s aunt, and that this apartment was messy and dirty.

A. said she was also told by her grandfather how to hold her cutlery correctly and resented being told how to do so.

36. When asked by the Assessors to describe herself, her mother and her father, A. described herself as being clever, nice and

creative, her mother as being kind, loving and caring, and her father as being mean, argumentative and quick-tempered. A. relayed

that she did not enjoy her holiday in EUC with the applicant and she was unable to say anything positive at all about her father. It is

very clear from this report and the oral testimony of Dr. Ní Eidhin that to the extent that A. has any relationship at all with the

applicant, it is a poor relationship. The Assessors note that A. perceives her father as being unfriendly, harsh, punitive and distant.

The Assessors emphasise that this is not to say that these perceptions of A. of the applicant are true, but nonetheless that is the

current perception A. has of her father..

37. It appears from the report of the Assessors that some of the negative views that A. has of the applicant may have been

expressed out of a fear that the purpose of the report was to consider whether or not A. should reside with applicant in EUC. The

Assessors note that it is unclear why A. formed the opinion that this might be the purpose of the report, and the Assessors discussed

this with the respondent who was unable to explain why A. might have thought that this was so. The respondent said to the

Assessors that she explained to A. that the purpose of the report was to provide an opinion on A.’s welfare. In any case, it would

appear from the report of the Assessors that it is likely that this fear that A. had when meeting with the Assessors may have caused

her to express an overly negative opinion of the applicant.

38. On the other hand, even if that is so, it is very clear that A. has a very negative opinion of the applicant. This opinion stems from

her own direct experiences with the applicant, as well as witnessing aggression between the applicant and the respondent and a lack

of communication as between the applicant and A. A. expressed disappointment that the applicant did not communicate more with

her by telephone, but at the same time informed the Assessors that she is glad that he does not do so because previously she has

been made to feel bad by telephone conversations with her father. A. informed the Assessors that she does not try to contact her

father on Father’s Day and does not believe that her father deserves a birthday card or present and that she tries to forget her

father’s birthday. Nor does she wish to receive birthday gifts or Christmas gifts from her father.

39. The Assessors noted that A. appeared to see herself and her mother as being part of the same unit. She referred to “we” and

“us” when “I” would have been more appropriate. This suggested to the Assessors that A may see herself and the respondent as

having a similar relationship with the applicant, which inevitably leads her having a negative relationship with the applicant. The

assessors are of the opinion that children should have separate boundaries from the parent with whom they reside around the

relationship with the non-resident parent, and that in the opinion of the assessors, it is the job of the “resident” parent to ensure

that this is so. A. also seems to have gathered from the respondent that it is A’s choice as to whether or not she meets with her

father, and while this may have been said to give comfort to A., it is inappropriate because it gives too much responsibility to a child

of her age.

40. The Assessors make a series of recommendations designed to address this difficult state of affairs, and with a view to establishing

a good and lasting relationship between A. and the applicant over a period of time. These recommendations involve positive actions

being taken by both the applicant and the respondent. However, the Assessors make it clear that re-starting access by the applicant

to A. requires professional support. They recommend that in the first instance, A. should see a psychologist or psychotherapist to

explore her relationship with her father and with a view to establishing trust with that professional, who would then be responsible for

recommencing direct access by the applicant at an appropriate time. That person would also continue to be present, at least, for a

number of access visits by the applicant, in order to be supportive of A. in these initial and delicate stages of re-establishing the

relationship. The Assessors specifically asked A. if she had the option of meeting the applicant on her own, or with such a professional

person, which she would choose and she said that she would choose to meet the applicant in the presence of such a professional.

Parental Alienation

41. The applicant is convinced that the respondent has engaged in a campaign of parental alienation, which has brought about A.’s

negative view of the applicant. This is a very serious allegation to make. If it were true, it would mean that the respondent was

deliberately undermining any relationship that A. might have with the applicant, which could only be to the detriment of A.’s welfare.

If a court were to conclude that a parent was engaging in such conduct, a court would have a duty, in the interests of the child, to

take all such steps as might be appropriate to redress the alienation.

42. It is not difficult to see why the applicant might think that there has been a concerted effort on the part of the respondent to

alienate A. from the applicant. To begin with, the respondent left the country with A. at the first possible opportunity that she could

lawfully do so. The respondent has twice reported the applicant to the authorities, firstly in the EUC and secondly in this jurisdiction,

making allegations of possible sexual abuse of A. by the applicant (these allegations were investigated and rejected). There was a

curious coincidence of timing between correspondence between the respondent and the EUC embassy, in relation to the loss of A.’s

passport and directions being given by the respondent to that embassy not to issue a fresh passport upon any request of the

applicant, i.e. it appears that the latter occurred first in time. Then there was the fact that the respondent secured a protection

order against the applicant on what at this remove appears to be grounds that would amount to no more than a very unpleasant, if

also very intense, family row in a public place. Furthermore, emails sent by A. to the applicant are quite adult in character and

expression. Dr. Ní Eidhin agreed with this characterisation of the e mails, but also pointed out that A herself is in fact quite mature for

age, and has older siblings , which often results in younger children maturing faster. Dr. Ní Eidhin could not express any opinion one

way or another therefore if A. wrote these e mails herself , or if she did so at all, or with assistance. But taking all of the matters set

out above together, one can readily see why the applicant considers that there may be a deliberate campaign of parental alienation

underway on the part of the respondent.

43. On the other hand, the applicant accepted that the respondent had given him an iPhone for the purpose of having facetime

communications with A. Even though he was unable to use the device, this is hardly the action of someone intent on parental

alienation. Furthermore, the applicant did not deny that the respondent had accepted him previously into her own home,

notwithstanding the difficulties between the parties, for the purposes of facilitating access by the applicant to A. Also, A. reported to

the Assessors that the respondent is always nice to the applicant when he visits.

44. It is very difficult for this Court, at this stage, to form a definitive view on this issue, one way or another. The Court certainly

could not do so without a professional opinion, and this is something that would require specific investigation by the Assessors, or by

others with appropriate qualifications.While the applicant did complain to the Assessors that the respondent has deliberately acted in

such a way as to alienate him from A, the Assessors formed no views on the issue, and in her evidence, Dr. Ní Eidhin said that this

would require a specific assessment. However, she also said that the respondent is not currently encouraging a positive relationship

between A. and the respondent because of how negatively she feels towards the applicant.

45. For now, my conclusion on the issue is that the evidence falls short of establishing that the respondent has been engaging in

parental alienation. I think it is better that the focus of the court should be on the future, and giving such directions and making such

orders as may help A. to build an enduring and loving relationship with the applicant. It is clear from the report of the Assessors that

this will require considerable effort and co-operation between the parties. The focus of this Court, and of the parties, must be on the

welfare of A. and what is in her best interests. This is a statutory imperative, imposed pusuant to s. 45 of the Child and Family

Relationships Act 2015, although it would have been the approach taken by the courts prior to that act in any case.

Conclusion

46. It hardly needs to be said that it is in the best interests of all children to have the best possible relationship that they can have

with their parents. Where circumstances make good relations difficult, there is a duty on both parents to put their differences aside

and to promote good relations between the child and the other parent. This can only be in the best interests of all parties, but most

especially the child.

47. The applicant has not seen A. since November, 2017, and that visit ended in an acrimonious row between the applicant and the

respondent which quite understandably had a very negative impact on A. Such communications as have occurred between the

applicant and A. in the meantime have been sparse and unhelpful. It is unsurprising that A.’s current opinion of the applicant is not

good and that she expresses reluctance about spending time with him, even if this may not be his fault at all. Where fault lies for the

current relationship as between A. and the applicant is not the issue; what is of concern to the Court now is what steps need to be

taken now to improve that relationship with the intention of establishing or re-establishing a loving and enduring relationship between

between A. and her father.

48. It is not entirely clear what the applicant wants. He is asking the Court to set aside the Consent Order and to award him custody

of A., but at the same time he informed the Assessors that it would not be his intention to remove A. to EUC should he be granted

custody. Yet he also says that he only wants to see A. in EUC. This is somewhat contradictory. Moreover, the applicant

acknowledges that his relationship with A. is broken (his own word) , and yet he does not consider that any professional assistance is

required to help re-build that relationship. He thinks he can do so merely by taking A. to EUC and spending time with her by himself in

that country. It could not be more clear however that, at this moment in time, that could only be very damaging to A. and would not

in any way help to restore the relationship between A. and the applicant.

49. While the applicant’s position may be understandable from his point of the view, it ignores the best interests of A. It is beyond

any doubt that their relationship can only be re-established by degrees and with professional assistance. It is to be hoped that when

he has had a chance to reflect on this, that the applicant will accept that this is what is in the best interests of A., and that he must

put his own personal preferences aside in her best interests, and indeed in his own best interests in re-building a loving and enduring

relationship with A.

50. The applicant will need to exercise patience, and put his frustrations and suspicions aside. The respondent for her part will need

to encourage A. to have a positive relationship with the applicant and to avoid saying or doing anything which may cause A. to fear

meeting with or communicating with the applicant. More than that, in due course, and subject to professional guidance, she may have

to insist that A. engages with the applicant against A.’s own wishes. The report of the Assessors sets out a series of very practical

steps that are designed to re-start a relationship between A. and the applicant. These steps are, in my view, necessary and in the

best interests of A., reflecting as they do the very difficult relations now as between A. and the applicant and the applicant and the

respondent. It is not in either the interests of A. or the applicant himself to try and force A., or rush her into a relationship with her

father. It is very clear that this is a process that will take time and must be undertaken by degrees.

51. It must also be said however, that it is equally clear from the report of the Assessors that the restoration of a relationship

between A. and the applicant can only be achieved with the cooperation of the respondent. They expressly state this in their report.

She too must bear in mind that the establishment of the happiest possible relationship between the applicant and A. is in A.’s best

interests. While at this juncture I am making no determination as to whether or not there has been any deliberate parental alienation

engaged in by the respondent, this is something about which the Court must remain vigilant and take whatever action is appropriate

and in the best interests of A., in the event that the Court at some future date considers that the respondent is engaging in parental

alienation. This is something about which those professionals who may be engaged to assist the parties in the future should

themselves be vigilant and in a position to report to the court, if need be, in the future.

52. Since the relationship between the applicant and A. has broken down to the extent that it has, it is in the best interests of A.

that the terms of the Consent Order, insofar as they relate to access by the applicant to A., should be temporarily suspended.

Access from this point forward, but for the time being only, should be on such basis as may be recommended by the professionals

engaged to assist in the restoration of the relationship between the applicant and A. This is as far as it is possible to go in making

orders as to access for the time being, but I will adjourn the matter to a reasonably early date in the future with a view to receiving

reports from the professionals engaged and, if appropriate, to make more specific orders.

53. In relation to the remaining orders in the Consent Order, i.e. the orders requiring “mirror orders” in EUC, these, it seems to me,

remain appropriate. It is clear that since the decision of the Supreme Court, following upon the decision of the ECJ, that it is the

courts of this jurisdiction have seisin of the matter and the respondent should not be in fear of proceedings in EUC. Indeed, in the

longer term, it may help and be of assistance to the applicant if the respondent can travel to EUC secure in the knowledge that it is

Irish court orders govern relations between the parties. Accordingly, I think it is appropriate that paras. (ix) and (x)of the Consent

Order be affirmed, save only that they should not require the courts in EUC to mirror those parts of the Consent Order now

suspended, so that , in effect, all that is required to do is vacate existing orders in EUC and apply for the discontinuation of any

proceedings currently extant in EUC. Also, I think it is appropriate to impose upon the applicant the obligation to secure these orders

in EUC with the consent of the respondent, to the extent required, not least because it should be far easier and more cost effective

for him to do so as a practising lawyer in EUC.

54. In relation to the application brought by the applicant for the committal of the respondent, in the course of the proceedings I

acceded to an application brought by the respondent that that application should be dismissed, because the applicant did not serve

the Consent Order, with penal endorsement, until June, 2018, long after the events relied upon by the applicant for the purposes of

his application for committal. I agreed with submissions of counsel for the respondent that it was not open to the applicant to rely

upon alleged defaults on the part of the respondent that predated the service of the order with penal endorsement.

55. That said, it must be observed that the evidence tended to suggest that the respondent may have made a decision, some time

following upon her return from EUC to this country in August, 2017, not to facilitate access by the applicant to A. in EUC. If that is

correct, it hardly needs to be said that that would amount to a clear breach of the terms of the Consent Order on the part of the

respondent. As I have said already, if she considered at that time that it was not in the best interests of A. to travel to EUC with the

applicant, then she should have re-entered the proceedings and sought to vary the Consent Order at that point in time. However, for

all the reasons that I have set out above, it clearly would not be appropriate or in the best interests of A. for me to make any orders

adverse to the respondent arising out of her actions. Suffice to say, as I have already, that there is a very heavy onus on the

respondent to cooperate fully into the future with whatever measures may be put in place to re-establish and nurture a good

relationship between the applicant and A.

56. Of course I also noted earlier that the applicant too has acted contrary to the Consent Order, at least in spirit, by issuing a fresh

complaint against the respondent in the courts of EUC, or at least by not withdrawing that complaint when invited to do so by the

magistrate, and instead arranging for orders mirroring the Consent Order in EUC. Courts cannot stand idly by when parties flout their

orders, and both parties now stand warned that this court will not do so should deliberate breaches of its orders occur in the future.