High Court grants joint custody with primary residence with father, prioritizing child's best interests and stability.

APPROVED

REDACTED

[2025] IEHC 545

THE HIGH COURT

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

Record No.: 2025/4 CAF

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 AS AMENDED AND IN THE MATTER OF THE FAMILY LAW ACT, 2019

BETWEEN

T.T

Applicant

AND

R.R

Respondent

JUDGMENT of Ms. Justice Nuala Jackson delivered on the 5th day of August 2025

Introduction

1. There is no doubt that life can impose very unfair and onerous challenges on families and a breakdown in marital relations can exacerbate such challenges. This can present a very difficult situation in terms of child arrangements and, in this context, the responsibility of parents to prioritise stability and security for children is very burdensome, often to the point of imperfect achievement. This is understandable and deserving of empathy but nevertheless the law dictates that the welfare and best interests of the child must be the deciding factors. Of course, the welfare of children can sometimes be achieved through a multiplicity of routes. Very often there is no deficiency of caring ability in either parent and the court is left with the difficult task of determining what is best. That is not to conclude that either parent is otherwise than a sufficiently able and competent parent or that there is not a sufficiency of attachment between the child and either parent. Rather, the legislation mandates that, all of the circumstances, including the specific list of factors set down in section 31 of the Guardianship of Infants Act, 1964 (as amended) (‘the 1964 Act’), be applied in order to endeavour to ascertain what is in the best interests of the child. This is such a case.

Best Interests of A

2. I have determined to make the following Orders herein consistent with the principles set out in section 3 and section 31 of the 1964 Act. I will set out the evidence and submissions and my reasons arising from them below.

Child Arrangements

3. I will grant joint custody of A to her parents. The parties remain joint guardians in accordance with law.

4. A will reside with her father save for the following arrangements, at which times, she will reside with her mother:

a. Term time:

Three weekends out of four A to be with her mother.

Father to bring to mother’s home or, at her option to be notified no later than the prior Tuesday night at 8 pm (by text), mother to collect from school Friday. Return to be on Sunday meeting at the appropriate road junction ([LOCATION REDACTED]) at 5 pm. In the event that there is a school related party in [REDACTED], weekends should be exchanged to facilitate A’s attendance at this event.

b. On Bank holidays return to be on Monday, same venue and time.

c. Weekend rotations to end during holidays and to start where finished when holidays end.

d. Holidays: Christmas - rotate festival (Christmas Eve 4 pm to St. Stephen’s Day 1 pm) – full days off school, including weekends, to be divided two thirds to mother and one third to father (parent who does not have the festival days to choose dates not later than 1st November each year). Rotation to commence with A spending the Christmas festival period with her mother in 2025. The parties may, at their option, agree to split the festival period. If both agree to do so, the division shall be 1 pm Christmas Eve to 1 pm Christmas Day and 1 pm Christmas Day to 1 pm St Stephen’s Day. Collection and return to the usual road junction. If this option is selected, father to have Christmas Eve to Christmas Day in 2025 and mother to have Christmas Day to St. Stephen’s Day, to rotate annually thereafter. The overall division of time shall be one third of holidays to father and two thirds to mother as previously set out. The selection of days for the balance of the holiday period to be with the party who has Christmas Day to St. Stephen’s Day to be made no later than 1st November each year.

Easter - rotate festival days (being Easter Sunday and Easter Monday) year on year – full days off school, including weekends at either end of holidays, to be divided two thirds to mother and one third to father (parent who does not have the festival days on a given year to choose dates not later than 1st February each year).

Summer – two weeks to father (primary school) three weeks to father (secondary school) – father to notify his weeks no later than 1st April each year – weeks may be together or separate - plus the Thursday (11 am) before school commences to school commencement with father.

October - mother - full week (weekends to be excluded (normal rotation continues) – five-day period).

February - father (weekends to be excluded (normal rotation continues)).

If Mother’s Day/Father’s Day falls on the weekend of the other parent, if no agreement to exchange weekends, then return time on Sunday to be 12 noon (father) or mother to have additional from 12 noon to 6 pm in [REDACTED].

e. Remote contact to each parent (at their option) on nights when the child is not with them, not to exceed one hour. f. Collection and return to be as a) above save where otherwise agreed between the parties.

5. As is widely accepted and acknowledged, child arrangement orders are never final in nature and application to amend may be made where it is contended that alteration is needed in the best interests of the child. However, this well accepted principle is not to be applied to the detriment of stability and steadiness. I am of the view that this family needs time to settle down without the overhanging shadow of litigation (although, unfortunately, the divorce decree and financial reliefs aspects remain to be determined). Therefore, I am not directing a review as was indicated by the section 47 assessor. This is a matter which may be addressed in the future if required but I am not prepared to make an assumption at the present time that it will be required.

History of Proceedings

6. This matter comes before me by way of appeal from the Circuit Family Court. Proceedings between the parties commenced with the institution of judicial separation proceedings by the husband (T.T.) in or about June 2023. A Defence and counterclaim to those proceedings is dated the 27 July 2023. As the parties had lived apart since December 2022, T.T. served divorce proceedings in or about December 2024. The divorce proceedings came on for hearing before the Circuit Family Court in January 2025 and the pleadings and affidavits in the Judicial Separation proceedings were adopted into the proceedings. While ancillary reliefs by way of financial reliefs and child arrangement reliefs are sought by both parties, the hearing in January 2025 dealt only with the child arrangement reliefs, the financial relief applications and the granting of the Decree of Divorce itself being adjourned to be heard at another time. The matter comes before me in the context of an appeal from the child arrangements orders made by the Circuit Family Court at that time. The Notice of Appeal was filed on 21 January 2025 and appeals from the whole of the judgment of the Circuit Family Court.

7. In the course of the proceedings (including this appeal) there has been a number of significant motions:

a. motion for the carrying out of a section 47 assessment,1 was brought in July 2023.

A grounding affidavit was sworn by the mother (R.R.) on 20 June 2023. A replying affidavit was sworn by T.T. on 21 July 2023. The Order of the Circuit

Section 47 of the Family Law Act, 1995. Family Court (appointing Dr. Anne Byrne Lynch (‘ABL’)) was made on that date also. The consequent report is dated 18 March 2024. It was this report (‘the first report’) which was before the Circuit Family Court in January 2025.

b. A stay on the first instance Order having been refused, this was appealed to this Court by Notice of Motion issued on 22 January 2025. This resulted in revised arrangements being put in place in the interim period, pending the appeal.

In the intervening period, a further review assessment was carried out by ABL, and I have had the benefit of this (‘the second report’) dated the 30 June 2025.

Facts Not Substantially in Dispute

8. The parties married in August 2015 and there is one child of the marriage, A, who is aged 8 years. While there are many facts in dispute in this case, I do not doubt that both parents are devoted to A. The parties lived in [REDACTED] with A until their separation in 2021. I believe that it is also common case that the parties have very different personalities. T.T. is introverted and lives a somewhat socially isolated life, contributed to, I believe, by a minor disability,2 which he has had since birth. He presents as a traditional, quiet person who is organised, if subdued, in his habits and structured in his lifestyle. He is, however, clearly a talented, able and intelligent person. R.R., on the other hand, is more extroverted and sociable and enjoys a less regimented, more carefree, regime. She is likewise a talented, able and intelligent person. It is a regrettable fact of life that, while differing personalities can bond with considerable success while positive relationships are ongoing, the diversity which previously attracted the parties becomes a divider and an increasing irritant and source of complaint in the context of relationship breakdown. Such is the position in this instance.

9. Both parties were in gainful employment during the marriage, with R.R. opting to work part-time after A’s birth while T.T. remained in full time employment. I find that R.R. probably did a greater share of caring duties with a traditional family dynamic being adopted. The part time work option undoubtedly resulted in some reduction in financial circumstances, and I have no doubt that there was financial disharmony between the parties in this context,

It should be noted that there is reference to T.T.’s disability and the extent of it in the Cost of Future Care report considered below. The description of this in the report appears to have been overstated beyond the oral evidence tendered to me and also beyond the observations made by me in the course of the hearing. I am mindful that T.T. was not involved in the preparation of this report and the description derives from the narrative of R.R.. having regard to their different approaches to the management of resources. R.R. has suffered from chronic neurological disorder over many years, her diagnosis pre-dating the marriage. Her condition has deteriorated over the years, and it is common case that she experienced an increasing degree of disability since in or about the early 2020’s. However, it appears that she was in a position to live a relatively normal life until in or about 2022.

10. Relationship difficulties emerged in or about 2021. R.R. asserts that T.T. was insensitive and unkind in the context of her illness. He denies this. It is undoubtedly the case that significant deterioration in the relationship was contemporaneous with the deterioration in the Respondent’s health, but I am not convinced that there is a definitive causal link between them. On the evidence before me, it appears that relationship difficulties were emerging before this time. I will consider the Respondent’s illness further below.

11. At Christmas of 2022, the relationship being in significant difficulty, the Respondent determined to go to stay with her sister for a period. I formed the view that this was likely embarked upon as a temporary visit. However, during this time, she suffered a lifechanging health event which has resulted in her having a considerable degree of disability. Clearly, this presents huge life challenges for her but also for her family, including the Appellant, T.T., and

A. When the lifechanging health event occurred, R.R. was staying with her sister who resides at a provincial location. She has resided there since and has received and continues to receive considerable support from her family of origin.

12. This resulted in A remaining in [REDACTED] with her father, a situation which has now continued for in excess of two and a half years. In the months following the deterioration in her health, R.R. was in in-patient care and thus not available to take care of A, on a day-today basis. Access in such circumstances was understandably constrained. Upon finishing inpatient care, she returned to reside with a relative, where she has remained since that time. I am unclear as to her future intentions (this matter caused some difficulty in the context of this hearing which I will refer to below) but it seems likely that she will continue to reside with this relative for the foreseeable future. While there are, undoubtedly, some shortcomings in that residence as regards coping with her day-to-day needs, I find that the relative was providing a welcoming and comfortable home for her and for A during such periods as A is with her mother.

13. There is some understandable frustration on the part of R.R. that the current situation has pertained for a far longer period than was necessary due to delays in the within proceedings, in particular, in relation to the preparation of the section 47 assessment and the achieving of a hearing date thereafter. It is also most regrettable that during this period the access between A and her mother was unnecessarily curtailed and a very miserly approach was taken. Such approach was unfair to R.R. but particularly so to A. This has been significantly improved since the interim arrangements directed by this Court (Jordan J.) in the context of the appeal were put in place. Overall, I have formed the view that both parents in this matter have been more focused on preserving or improving their position than in addressing how they may both contribute to A’s wellbeing going forward.

14. There were many allegations made by R.R. and the lesser counter allegations were curtailed partially because T.T. was in the position of having the child living with him for most of the time. This divided family has adopted a form of siege warfare with the Appellant, T.T., being reluctant to give any ground for fear that he would lose ground and the Respondent, R.R., seeking to regain control by advancing negativities towards T.T. and his family. I formed the view that A was somewhat overlooked in these siege mentalities and, in consequence, has found herself, aged but 8 years, in the role of conciliator, minder, supporter and defender of her parents. I very much hope that they will find within themselves the strength to stop the parentalising of this small girl and to allow her the freedom to enjoy her childhood with both parents whom she loves.

15. I must at this point make brief reference to the documentation created in the context of this litigation. Documentation (pleadings, affidavits and correspondence) created in the course of family law proceedings is all too often unduly antagonistic and oppositional in nature. It is sometimes useful to adopt a “crossing the fence” test and to consider such documentation, before it is deployed, in the light of how it may be received and perceived by the intended recipient and to query in this context whether it is making a positive, negative or any addition to the overall situation.

Facts In Contention

16.

a. Degree of disability of R.R. There was some considerable dispute between the parties as to the extent of R.R.’ s disability and how these impacts upon her ability to care for A. The care package in place is a comprehensive one and it is clear that she requires considerable assistance with personal care needs including getting up in the morning and going to bed at night. Her position has been significantly aided by improved assistance equipment now available to her. The evidence of R.R. was that the timing of care could be altered in order to facilitate A’s school timetable. Some of the controversy was caused by a disparity between a report commissioned by the Respondent concerning cost of future care (‘care report’) and the conclusions reached by the section 47 assessor in the second report. Both of these reports were of considerable assistance. The care report is dated 29 August 2024 and, in consequence, was not available to the section 47 assessor at the time of the first report (dated 18 March 2024). I was concerned that the care report was not provided to the section 47 assessor by the Respondent in the context of the second report but rather was furnished to ABL by the Appellant. It appears to me that it was commissioned for the purpose of the financial relief’s aspect of the case and that there was an effort to minimise its conclusions in the context of child arrangements. In the context of the issues for consideration by me, the care report states:

“This [her present] accommodation is wholly unsuitable for a wheelchair user. [R.R.] needs an adapted living space that is suitable to her needs, currently she cannot use the kitchen as the space is not wheelchair friendly, the bathroom does not have an accessible shower space nor is the garden accessible.”

“[R.R.] will require a specially adapted bungalow that is wheelchair accessible and fully equipped for a single parent with disabilities, so that [she] can safely care for her daughter in their own home. [R.R.] has the support and backing of her family for this task.”

“Ideally, they would live together in a wheelchair accessible property. If this is to be the case [R.R.] would need the assistance of a PA to help her with A on top of a home care package for herself and a sleep over shift, as someone would need to be in the house at night to help with A, at least until A reaches the age of 14.”

17. The second report considers the care report and concluded, “Overall, the report of SMcS was of limited value to the present assessment in terms of giving a realistic appraisal of R.R.’s abilities in the context of her care of A at this time”.

18. While I have some reservations about the expertise of the section 32/47 assessor in the assessment of future care needs in the context of disability, my assessment of the evidence is that the suitability of R.R.’s current accommodation has improved with additional equipment with which she has recently been provided. I find that there are no overnight or care assistance needs arising in circumstances in which R.R. is residing with her sister and an adult relative who are ready and willing to assist with A as required. While efforts were made by the Appellant to query the stability and security of R.R.’s accommodation with her sister, I did not conclude that there was any difficulty in this regard. R.R.’s sister seems to have great commitment to her and to A and, most importantly in the current context, to facilitating R.R.’s parenting of A and ameliorating any deficits arising. I am of the view that the issues raised in the care report are ones which would very much arise in the event that R.R. was not residing with her sister but, on the evidence before me, I find that this is not a current immediate plan. I am somewhat perplexed as to why this was addressed in the future care assessment if not envisaged in any respect. No explanation of this was proffered in evidence to me.

b. Enticements

19. Allegation was robustly made by R.R. that T.T. had offered enticements to A such as had caused her to change her voice in the second report. It was alleged that there was a promise of getting a dog and of foreign holidays in the event that the child remained living in [REDACTED]. Evidence was given by the Appellant in this regard and this matter is also mentioned by the section 47 assessor in the second report in the reportage of the words of the child. There was some disparity in this regard. Clearly getting a dog in [REDACTED] has been discussed between the child and her father. The Appellant presents this conversation as tentative and “we’ll see” in nature. It is clear that progressing this plan is on the basis that A is [REDACTED] based as T.T. does not wish to have a pet himself but would have this for A. I formed the view that there was somewhat of a difference in emphasis and perspective at play here and no more. T.T. ’s plans in relation to the pet were conveyed with the adult perspective of actively considering the possibility and were being received and presented by A as a little more robust and advanced, perhaps reflective of their respective states of enthusiasm for the project.

20. I do not accept that a foreign holiday had in any manner been promised as an enticement to A. A has a friend who went on a particular holiday. She would like to do likewise. I accept that he has fairly told A that finances do not permit such travel this year but that it may be possible another year. The narrative of the child, as expressed in the second report, supports this view.

21. I must say that I am concerned in this case about the readiness with which the Respondent attributes blame and wrongdoing to the Appellant and inadequacies on his part in relation to A. Normal, everyday interactions and events are taken out of context and hugely greater weight is attached to them than is warranted. My major concern is that, to some degree, A is picking up on this readiness and reacting in a manner which she considers appeases or pleases her mother. I found this to arise in relation to allegations regarding school and extra-curricular activities, playdates and sleepovers and such like, the allegations concerning the First Communion dress and upset when returning to her father from her mother.

22. It was evident from the evidence of the Respondent that she had presented activities available in her location in a very positive and attractive light to A (I was presented with a relocation booklet which could only be described as exuberant in nature).

23. I have seen and considered A’s school report for the academic year just past, and it discloses a child doing very well in school and highly regarded by her teachers. The comments made about her school experience are exemplary. I note that her punctuality is referenced as “excellent”, and her school absences are extremely modest. Undoubtedly, transferring between two parents whom she loves is difficult, but I do not believe that the evidence supports this as being other than what is to be expected in the divided life she leads. The Respondent’s life is undoubtedly difficult, and I have absolutely no doubt that the original access arrangements which were put in place were inadequate and dictatorial and, most importantly, were insufficient in terms of A’s welfare and best interests. Both parents will have to learn to navigate the unexpected path they now tread but, having considered the messaging between them, it is clear that they do so without difficulty and with appropriate good manners for the vast majority of the time.

c. A’s personality and voice of the child

24. ABL in her oral testimony and in her reports speaks of A as an exceptionally shy child, to such degree as makes change difficult for her. She finds socialisation difficult, according to the assessor, and, having successfully achieved some friendships in her current environment, she is now reluctant to leave these. Hence, her voice, as expressed to the assessor and thus communicated to me is that she wishes to remain in her current school, with her current nascent friendships. The Appellant endorses this, there is reference in the second report to him referencing A as being “petrified at the idea of a new school”. The Respondent in her evidence indicated that A’s shyness was being overstated and that she had had a happy and enjoyable visit to her new school and that while A might have some socialisation challenges, this change would not be a substantial problem for her. Yet again, I have concluded that both parties are overstating the issue in order to support the outcome which they seek to achieve.

25. I found the oral evidence and the second report most useful in this regard. In her evidence, ABL described A as “a shy girl”, “constitutionally shy”, “reticent and slow to become animated until she knows you”. Her reported wish is to remain in her current school, living with her father during school times and having more time with her mother outside of school times. The assessor described this as “a very firm view” and one which “couldn’t just put aside”. She stated that A “just didn’t want to do it”. In cross-examination, ABL referenced “some influence” (referrable to T.T).

26. However, my overall impression of the evidence in this matter was that both parties, not intentionally but based upon their very distinct views as to what would be best for A, have sought to influence A (the evidence of R.R. made reference to numerous extra-curricular activities which A would wish to attend if with her during the school week). I note that in the interview with the paternal grandmother, she reported T.T. as having been “a very shy child”. It seems to me that this is a trait which A appears to have inherited. It struck me that this shared personality trait may augment the support which A receives from her father in allowing her to progress slowly and at her own pace in relation to the development of friendships and embracing activities.

d. Extra-curricular activities and social events for A

27. Again, there was considerable disagreement in this regard. The Respondent contends that A does not do sufficient extra-curricular activities (she would appear to do two such which are based outside school and one which is school based which she wishes to give up). There would appear to have been a third activity which has now ended. The Respondent contends that there is a deficiency in the Appellant’s organisation of playdates and sleepovers and that he fails to make the most of the enhancement of friendships which might be allied to extra-curricular activities. The Respondent contends that she would arrange more and more suitable and more sought after extra-curricular activities for A and that she would be more amenable to social interactions with other children.

28. There is no doubt that extra-curricular activities play a very considerable role in the life of the modern child. There are legitimate differences of opinion between parents as to the extent of such activities which are appropriate. In the present instance, I find that there are not parental deficits on either side in this regard. There are differences in approach which are both entirely within the range that should be respected. e. Health and personal care needs

29. There was criticism of the Appellant by the Respondent in relation to the promptness of his attendance to minor health and hygiene care issues pertaining to the child. There was reference to the special role of the mother as carer in the context of pre-pubescent and pubescent female children. I find that the Appellant is anxious and lacks confidence in this regard. I formed the view that he was constantly fearful that he would make a mistake and that this sometimes resulted in reticence on his part. There is absolutely no doubt in this case that joint custody is appropriate and the parties, by law, are and will remain joint guardians. This allows them both to have a fully active role in relation to medical issues. I note from the relocation booklet provided; A is registered as a patient in a medical practice close to her mother’s home also. This is entirely appropriate. I do not find that there is any deficiency in the Appellant’s care of A in this regard. Of course, communication between the parties in relation to such matters is essential and is to be encouraged and, of course, subject to the usual legal consequences of guardianship, there is no reason why the Respondent should not be directly involved with medical practitioners in respect of such matters. Indeed, on the contrary, she should be fully involved.

30. I accept that the commonality of experience may make the advice and counselling of the parent of the same gender most beneficial in the context of pre-puberty and puberty experiences. However, I cannot find that this equates to a parenting deficiency in the other parent. The parents in this case, having regard to the evidence and reports of ABL, are both able and loving. A has a strong attachment to both and feels safe with both. ABL in her oral testimony states that A feels safe with them both, adding that she (A) has “an emotional connection with dad” and that she is “safe in her routine” with him.

f. Role of paternal grandmother

31. I have heard the evidence of both parties and of ABL in relation to T.T. ’s mother. T.T. contends that his mother does homework with A and also takes her swimming. Overall, I have formed the view that the grandmother’s role in the household of the Appellant is probably somewhat greater than this. There is nothing wrong with single parents having family assistance. Both parents in this instance have such assistance. It is undoubtedly the case that the paternal grandmother’s previous career results in a degree of strictness in relation to academics and, perhaps, otherwise. However, yet again, I find this to have been overstated and overemphasised by R.R.. I accept that it is for T.T. to actively calibrate the approach and attitude of third parties who assist him in his caring role. A is still a young child, and she has a complex life which her timidity may exacerbate and this needs to be borne in mind by those interacting with her. I accept the evidence of ABL that while the grandmother might be perceived as being “a bit strict”, A has a good relationship with her. ABL opined that A experiences her grandmother and her interactions with her differently to the negativity which her mother has towards her mother-in-law. Of course, the nature of the relationship between child and grandmother would very commonly be very different to the relationship between mother-in-law and daughter-in-law. So far as A is concerned, the evidence of the assessor is that this is a positive relationship, A did not complain, and that A, accepted and loved her grandmother. In circumstances in which her grandmother understandably plays a significant role in A’s life during the time when she is with her father and will continue to do so, it is important that the Respondent does not impose her own feelings of negativity in respect of this person on to A.

g. Schools

32. On the evidence before me, it is clear that both of the potential schools are amply equipped to address the educational needs of A. The main difference between them is that A has attended her current school for the entirety of her primary schooling to date. This has resulted in her making friendships. In addition, she has established a community there. While she will be progressing to a senior division of the school in September, she will be sharing this experience with her longstanding classmates. I note that her most recent school report states: “A has gained in confidence this year and is developing good friendships which is definitely enhancing her education experience”. It clearly would not be ideal to interrupt this progress.

h. Abusive behaviour

33. The pleadings in the substantive action herein make allegation and counter-allegation of abusive behaviour. Many of these are not directly relevant to the issues which I must determine. At issue before me were allegations that the Appellant had failed to appropriately address the disability requirements of the Respondent when house renovations were undertaken in mid-2021. I do not believe that the evidence supported this contention. Many of the renovations undertaken would appear to have directly addressed the disabilities of the Respondent both at that time and, to a lesser degree, into the future. The Respondent has not lived in the family home since the significant deterioration of her illness in or about December 2022 and I expect that the current facilities therein would not address these current needs. I, however, formed the view that the Respondent was involved in the planning of the renovations and consideration was given to her requirements in the context of these renovations. There was an allegation of cruel and intemperate comments having been made relating to two separate incidents. Having heard the parties, I consider that these comments probably were made. This has undoubtedly not assisted the relationship between the parties and, in particular, the hostility of the Respondent. However, there is no evidence before me that anybody has ever acted or spoken in such manner to A.

Reports of Section 47 Assessor

34. By Order of the Circuit Family Court of 21 July 2023, a report pursuant to section 47 of the Family Law Act 1995 was ordered. A joint letter of instruction (written by the solicitors for the Applicant which was approved by solicitors for the Respondent) was sent dated the 19 September 2023. The first report is dated 18 March 2024. This report is based on meetings with both parents, home visits, meetings with A at the homes of each of her parents, a meeting with maternal grandparents, consideration of school reports and affidavits of both parents. At that time, arrangements for A’s visitation with her mother was very curtailed and the overriding desire expressed by her was to see more of her mother. Loyalty to both parents is very clear and there is somewhat of a difference in emphasis depending on the location of interview. She appears to wish a reversal of then current arrangements albeit with “a bit more” with her father at weekends. It is most regrettable that A’s very ably conveyed desire to spend more time with her mother, expressed in early 2024, did not occur for in excess of a year thereafter. It is my finding that the Appellant was aware of A’s wish and, indeed, her need to spend greater time with her mother and he must be criticised for failing to facilitate this. T.T. needs to be more assertive in ensuring that what he knows to be in A’s best interests are actioned and actioned promptly. I have formed the view that he was so consumed with the fear of ceding ground in the context of these proceedings that he put what he knew to be right and in A’s interests behind his fear of the consequences of such increased contact. It is clear that A has enjoyed the increased time spent with her mother since the beginning of this year and she has benefitted from this. However, I find that spending such extra time has also given A the opportunity to better express her views and to better contemplate circumstances relating to future arrangements in the context of having increased time with her mother.

35. I had the benefit of an updated report at the hearing before me, this review report being dated 30 June 2025. For the purposes of this report, ABL interviewed both parents, the paternal grandmother and A. At the time of this second report, A had been informed of the

decision of the Circuit Family Court which involved her moving to attend school in the location of residence of her mother with weekend and holiday focused time with her father. She had been aware of this for some time (circa. 6 months) and had had time to consider the implications of this. There has been suggestion at hearing herein that A’s wishes at the time of this second report had been formed due to influence by her father. It is my finding that A is and has at all times been aware of the views of her parents and of the fact that each parent wishes to have her live with them for the preponderance of the time. It is my finding that both parents have sought to influence her by presenting to her the advantages of living with that parent for the preponderance of the time. I do not find any intentional behaviour in this regard attributable to either of them. They both love her deeply and wish to have her with them as much as possible and have focused on the positives as applicable to her life with each of them. This is somewhat understandable but may have added to the burdens and conflicts upon her. However, it is my view that the authentic voice of the child has been ascertained by ABL and that I have been most fortunate to have the very considered and comprehensive reports of the assessor, together with her oral testimony, in determining this case. The overall tenor of the second report is that A has been afforded more time with her mother and that she is benefitting from this and enjoys it. It is also amply clear that A is attached to her father, her life with him and her school and community. The assessor opines that she is a shy child who has “concerns and fears about leaving her familiar school, friends and activities to remake a whole new set of relationships in a new school and new home setting”.

36. The oral testimony of ABL substantially accorded with her recommendations in the second report. As previously indicated above, the assessor reported that A had strong attachments with both parents, was a sensitive child, alert to and aware of what would upset both parents and who had indicated “I like the way it is now”. Importantly, the assessor indicated that A was now “more embedded” in her current community and that, having given the case much consideration, she had concluded that the voice of the child as currently expressed ought to be listened to and inform the ordered arrangements.

The Law

37. I received useful and detailed submissions from both parties. They were of considerable assistance. Section 3 of the 1964 Act states that in deciding the matters at issue before me, the best interests of the child must be the paramount consideration. Section 31 of the 1964 Act mandates that in deciding the best interests, regard must be had to all circumstances relevant to the child concerned and their family. Section 31(2) of the 1964 Act proceeds to set out a comprehensive list of factors which ought to be included in consideration of a child’s best interests. The Respondent referred me to the useful dicta of Collins J. in D.K. v. P.I.K. [2023] IECA 246 at paragraphs 90 and 91 to be considered in interpreting these legislative provisions:

“90. Section 31(2) – which is broadly similar to section 1(3) of the (UK) Children Act 1989 - provides a useful checklist which helps to structure the court’s assessment of what is Page 61 of 95 in the best interests of the child in any given circumstance. However, the extent to which those factors are engaged, and the weight to be given to them, will vary from case to case. In any given case, different factors may point in different directions. That is not a criticism of the section; rather it is a reflection of the complex and untidy reality of family relationships and the breakdown of such relationships. As Moore-Bick LJ observed in K v K (Children:

Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, “the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child” (at para 86). That approach is, in my view, entirely consistent with the 1964 Act.

91. As Whelan J stressed in her judgment in SK v AL, what is involved is “an exercise in welfare assessment”, without any presumption either in favour of or against the proposed relocation. The exercise is necessarily comparative: what the court is required to do is to identify and evaluate the available options, carrying out a “balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options” (per McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR 670, at [54]). The judicial task is “to evaluate all the options, undertaking a global, holistic and .. multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option” (per Sir James Munby P in Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, at [44]). “Holistic” in this context means simply that all the factors bearing on the child’s best interests must be considered as a whole rather than in isolation (per McFarlane LJ in Re F (A Child)

(International Relocation Case) [2015] EWCA Civ 882, [2017] 1 FLR 979, at [48]).

In all of this, the only principle, properly so-called, is that the welfare of the child is paramount: K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134.”

38. The Appellant referred me to the useful dicta in the decision of Jordan J in the case of D.H. -v- K.C. [2021] IEHC 579 in the context of relocation cases:

“54. The law in relation to the matters at issue is clear and is dealt with in several decisions of the Superior Courts spanning many years. Although involving repetition it is nonetheless useful to set out the law as it has been previously set out in earlier cases including the decisions of this Court in L.C.W. v. K.C. [2019]

IEHC 945 and L.D. v. N.D. [2020] IEHC 267.

55. The applicable principles to be applied in the context of relocation applications have been considered by the Irish courts in a number of decisions.

In E.M. v. A.M. (Unreported, High Court, 16th June 1992), Flood J. identified the following criteria as being relevant:

“(1) Which of the two [hypothetical outcomes] will provide the greater stability of lifestyle for [the child].

(2) The contribution to such stability that will be provided by the environment in which [the child] will reside, with particular regard to the influence of his extended family.

(3) The professional advice tendered ….

(4) The capacity for, and frequency of, access by the non-custodial parent.

(5) The past record of each parent, in their relationship with [the child] insofar as it impinges on the welfare of [the child].

(6) The respect, in terms of the future, of the parties, to orders and directions of this

Court.”

56. The applicable principles were further considered by MacMenamin J. in U.V.

v. V. U. [2011] IEHC 519 and the criteria set out by Flood J. were referenced with approval. It was a marital case in which the High Court was assessing the relocation to Spain by two children, aged twelve and six years respectively. The applicant mother was a Spanish native. Refusing the application to relocate,

MacMenamin J. rejected the suggestion that there was a presumption in favour of the custodial parent and he pointed out that: - “The fundamental constitutional and legal principle applicable here is the children’s right to have decisions taken as to their welfare with that welfare being the prime concern

57. This Court must also have regard to the decision of the Court of Justice of the European Union of the 5th October, 2010, in J. McB. v. L.E., Case C-400/10

PPU, where, referring to Article 7 of the Charter of Fundamental Rights (respect for private and family life, home and communications), that Court observed at para. 60 of the judgment, that the Article must be read in such a manner so as to respect the obligation to take into consideration the child’s best interest, and the fundamental right of the child to “maintain on a regular basis personal relationship and direct contact with both of his or her parents, stated in Article

24(3)”.

58. The Court further in Case C-540/03 Parliament v. Council [2006] ECR I5769 considered issues which are also pertinent to this case. The Court observed, at paragraph 58; ‘ The Charter likewise recognises, in Article 7, the right to respect for private or family life. This provision must be read in conjunction with the obligation to have regard to the child’s best interests, which are recognised in

Article 24(2) of the Charter, and taking account of the need, expressed in Article

24(3), for a child to maintain on a regular basis a personal relationship with both his or her parents’ – Parliament v. Council [2006] ECR I-5796.

59.The above principles should be respected by this Court and they accord with the basic welfare considerations which apply under Irish Law.’”

39. I was also referred to the dicta of Collins J. in D.K. -v- P.I.K [2022] IECA 246, commencing at paragraph 2, wherein he stated:

“At the level of principle, the approach to be taken to relocation cases in this jurisdiction might appear straightforward. Section 3(1)(a) of the Guardianship of Infants Act 1964 (as amended) (“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.” Part V of the 1964 Act then makes provision as to how the court is to determine the best interests of the child. The paramountcy of the best interests of the child is emphasised throughout the 1964 Act; see, by way of illustration, sections 11D and 12A. These statutory provisions reflect the constitutional imperative in

Article 42A.4.1ii of the Constitution (inserted by the Thirty-First Amendment of the Constitution (Children) Act 2012)….

3. The Charter of Fundamental Rights of the European Union (in Article 24(2))

and the United Nations Convention on the Rights of the Child (in Article 3(3))

also require that the best interests of the child must be “a primary consideration”

in all actions relating to them. Unsurprisingly, that is also the approach taken in the domestic law of many other jurisdictions.

4. However, the apparent simplicity of section 3(1)(a) of the 1964 Act is deceptive.

In the first place, the legislative mandate that “the best interests of the child”

shall be regarded as “the paramount consideration” (my emphasis) appears clearly to imply that in this context other considerations may also be relevant and are to be taken into account. However, section 3(1)(a) gives no guidance as to what those other considerations may be. Secondly - and more significantly - while the exercise of identifying what is in “the best interests of the child” will often be difficult, it is particularly fraught in the context of relocation. Relocation decisions are enormously consequential, for both child and parents. They may have lifelong impacts on the entire family. However, the alternatives that a court must choose between cannot be modelled or simulated in advance. The future trajectory of the life of a child (and/or of their parents) cannot be confidently mapped. There are far too many contingencies and uncertainties for that. Where

(as here) more than one child is involved, each at a different stage of development and maturity and with their own particular relationship with each parent, those difficulties are compounded. The assessment of what is in the best interests of each may point in different directions. Objective measurement is unavailable and value judgments are unavoidable. The exercise necessarily involves the making of predictive judgments by fallible human beings who may aspire to, but do not possess, the wisdom of Solomon….

6. Even so, the role of the court is a critical one. It has to make a decision that is likely to cause profound distress to one parent or the other (and, possibly, to the child or children involved). That, unfortunately, cannot be avoided. But what the court can and must do is to carry out its adjudicative functions in a manner which makes it clear to the parties that its ultimate decision is the product of reasoned analysis, founded on a careful and fair-minded assessment of the evidence and arguments.”

40. Both parties referred to dicta from the decision of Whelan J. in S.K v. A.L. [2019] IECA 177:

“38. In an application by a parent seeking liberty to remove a minor who is habitually resident within the jurisdiction of the courts of this State for the purposes of relocation to another state where the other parent or holder of rights of custody does not consent to such relocation, the approach of the court is governed by the provisions of the Constitution, the Guardianship of Infants Act

1964 (as amended) and the jurisprudence governing the best interests of the minor in question.

39. In the instant case it is of relevance that the proposed relocation was to a non-EU State – a so-called “Third State”. Significant distance can impact on the frequency and modalities of contact and generally can be a relevant factor in judicial consideration of the minor’s best interests in the context of such an application.

40. In any trans-national child relocation case there are a variety of conflicting or competing interests potentially engaged, including the best interests of the child in question, the rights and interests of the parent who proposes to relocate and including their circumstances vis-à-vis any spouse, partner or family and the rights and interests of the left-behind parent and his or her spouse, partner or family. Such an application frequently, if not invariably, brings into stark relief the conflicting aims and objectives of the parent who proposes to relocate and who is usually the primary carer of the child with the rights of the left behind parent to maintain a relationship with the minor.

No presumption for or against relocation

42. In this jurisdiction, having regard to the constitutional mandate and the clear provisions of the relevant legislation, including the Children and Family

Relationships Act, 2015, Part 4, and the Guardianship of Infants Act 1964 (as amended), in any application to relocate a child there can be no presumption in favour of or against either the applicant parent or the remaining parent. It is purely an exercise in welfare assessment. Article 42A of the Constitution.

43. As is clear from Art. 42A of the Constitution, the best interests of Isobel was required to be the paramount consideration when the High Court determined the application for liberty to remove and relocate. Article 42A.1 provides: “The State recognises and affirms the natural and imprescriptible rights of a l children and sha l, as far as practicable, by its laws protect and vindicate those rights.”

44. Article 42A.4.1 provides: “Provision shall be made by law that in the resolution of al proceedings (i) …. (i) concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.” Article 42A.4.2 provides that: “Provision shall be made by law for securing, as far as practicable, that in al proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

….

55. In carrying out a Best Interests Assessment in the context of a proposed relocation particular factors may be of relevance including: (a) The minor’s emotional and/psychological dependency upon the primary carer. (b) The relationship between the child and the remaining parent. (c) The relationship between the child and his or her extended family, including siblings, step-siblings, step-parents and grandparents and the extent to which the dynamics of those relationships that operate positively and beneficially for the minor may be affected by the relocation, and considerations as to how such changes might be ameliorated or addressed. (d) The reasonableness of the proposed relocation and, so far as relevant, the motivation of the parent who proposes to relocate which is required to be objectively assessed. (e) The practical consequences of a refusal of the application for a l of the directly concerned parties and in particular the minor, the directly concerned parents or guardians. Balancing the rights of the parties.

…

Access

57. In evaluating the right of a parent to access, it is to be borne in mind that not alone is access a right of the parent, particularly a non-custodial parent, it is also a right of the child and is, in the absence of evidence to the contrary, presumed to be in the best interests of the child that they maintain a constructive relationship with the non-relocating parent. Care must be taken, accordingly, to structure contact arrangements so as to preserve and vindicate the child’s relationship with the non-relocating parent so as to minimise disruption to same and ensure so far as practicable that the relationship is maintained in such a manner as operates in the best interests of the minor.”

41. All of these authorities involved proposed international relocations of children, but they are nevertheless useful in the present context. The issues engaged in relocations which involve a degree of travel between parents’ home are not dissimilar whether involving national or international locations.

Application of Law

42. There is no doubt that this is a complex matter in the context of this case where there are many factors relating to A’s life which must be taken into consideration. I have had regard to the factors listed in section 31(2) of the 1964 Act:

(a) the benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships

There is no doubt that it is in A’s best interests to continue to have a meaningful relationship with each of her parents. She enjoys a strong attachment with both of them and I find that she feels and is loved by them both. She is fortunate that she also enjoys positive familial relationships with remoter relatives through her parents. While I find that her father must have the courage to ensure that he is true to A and to himself in ensuring that those who assist him with her care are mindful of the complexities of her life and are not unduly regimented in this context, having heard from the assessor, I find that A loves her remoter paternal relatives and the issues are comfortably within the range of personality disparities which may be found in every family and which are calibrated within such family relationships.

(b) The views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise) I have been most fortunate in having the reports and the oral testimony of a most experienced assessor in this regard. Her evidence was very clear in this regard. I am satisfied that the views of the child as expressed to the assessor and conveyed by the assessor to me are the child’s authentic views and that these are that she wishes for the current arrangements to continue. She very much enjoys and benefits from the time with her mother and the lively, extrovert lifestyle that she has when with her mother. She is a shy child, however, embedded in her home and in her school and in the calm, somewhat more introverted lifestyle, which she enjoys with her father. She does not wish the current arrangements to change, and it is my view that this is very understandable. She wished for more extended time with her mother which should have been afforded to her earlier in time but, having achieved this, she expresses comfort in the arrangements now in place.

(c) The physical, psychological and emotional needs of the child concerned, taking into consideration the child’s age and stage of development and the likely effect on him or her of any change of circumstances

I find that both parents are amply able to address the physical, psychological and emotional needs of A. They may approach these matters from a different perspective, in keeping with their own personalities and lifestyles. Both such personalities and lifestyles are to be equally respected, and I am of the view that A benefits from both and, indeed, from the contrast between them.

(d) The history of the child’s upbringing and care, including the nature of the relationship between the child and each of his or her parents and the other relatives and persons referred to in paragraph (a), and the desirability of preserving and strengthening such relationships

Both parents have demonstrated commitment to, involvement in and engagement with A’s upbringing and care and both are capable in this regard. She is attached to them both and has a bonded relationship with them both. It is, in my view, hugely important that A’s relationships with both of her parents be preserved and that this is done in a manner likely to strengthen them. I have formed the view that the arrangements which I have directed herein will best support this. Having considered all of the evidence, I fear that A’s relationship with her father would be weakened and significantly disrupted if her school community moved to the location in which her mother resides. I do not consider that this would assist in the preservation of her relationship with her father. While he has not always made the best decisions in the past, on balance, I believe that once arrangements have stabilised, he will actively support the preservation of A’s already strong relationship with her mother.

(e) The child’s religious, spiritual, cultural and linguistic upbringing and needs

Both parents are amply able to address these matters and do so during the time A spends with them.

(f) The child’s social, intellectual and educational upbringing and needs

Both parents are amply able to address these matters and do so during the time A spends with them.

(g) The child’s age and any special characteristics

I have had regard to A’s age and to the different circumstances which had presented between the date of the first assessment and the hearing before me. I have had regard to the personality of A who has been presented as a particularly shy and reserved child. I have had regard to the positive developments in her life in this regard over recent times, in particular, the friendships which have emerged and developed. I have had regard to the differing personalities of the parents and, dovetailing these with A’s own personality, how she can best benefit from the positive attributes of both of her parents.

(h) Any harm which the child 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

This is not an issue in this case.

(i) Where applicable, proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them The parents in this case are very entrenched in their views concerning A’s care and arrangements. It was concerning that both were willing to accept the recommendations of the assessor when such recommendations accorded with their own desires as to the arrangements to apply and did not do so when such recommendations did not accord with what they wanted. Indeed, each was willing to critique the other for not accepting the assessor’s recommendations and they did not appear to see the contradictions in their positions. However, I considered the text message communications between the parents, and, with minor exceptions, it is clear that they have a good ability to communicate effectively concerning A and her arrangements. This bodes well for the future, and it is my view that they will be well able to implement the terms of my orders herein with sufficient flexibility to ensure that A gets the very best of what they both have to offer her.

(j) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives

As I have indicated previously, I was concerned about the Respondent’s tendency to expand issues such that what were normal and everyday life events and circumstances were portrayed in a manner such as presented the Appellant as at fault or deficient in his caring. I was concerned that there appeared to be circumstances in which A may have been adopting such an approach also, perhaps in an effort to support her mother. There was nothing in the evidence before me which demonstrated that each of the parents was not doing their best in their individual, day to day interactions with A and that their best was not good enough. There was nothing in the evidence before me which demonstrated that either of the parties, individually, failed to achieve the standard of parenting which A requires. I did, however, form the view that the Respondent was all too willing to criticise the Appellant and there was some evidence that this criticism was being conveyed to A and responded to by A. This caused me concern as to the maintenance of A’s relationship with her father in the event that she was living the preponderance of the time with her mother. I hope that this is something with the Respondent will be able to address going forward such that A will have the comfort of being able to express her positivity towards her father and his household without reticence.

(k) The capacity of each person in respect of whom an application is made under this Act—

(i) to care for and meet the needs of the child,

(ii) to communicate and co-operate on issues relating to the child, and

(iii)to exercise the relevant powers, responsibilities and entitlements to which the application relates

Both parents in this case suffer from disabilities. Those of the Appellant do not significantly impact upon his day-to-day life and activities. The Respondent has an illness which has cruelly significantly impacted upon her day-to-day life. She is most fortunate to have the support of relatives who are most committed and loving in this regard. I find no parenting capacity issues arising at this time. The care available to the Respondent (both familial and external) is clearly such as enables her to have a full parenting role in relation to A. I was provided with a future care report which raised issues in this regard going forward. Fortunately, these are not issues at the current time and, in circumstances in which there was no evidence before me that there was any foreseeable plan to alter the living arrangements of the Respondent, there is nothing to suggest that there is a deficit in the Respondent’s ability to care for A at such times as she is with her.

43. Applying all of these legal principles and having considered all of the circumstances and the particular factors set out in section 31(2) of the Act, I have concluded that the Orders referenced at the commencement of this judgment reflect what is in the best interests of A going forward. I will so order.

44. I will list the matter for any issues arising or clarifications at 11 am on a day in the week of the 29 September 2025, which is convenient for Counsel, such agreed time to be notified to the Registrar by them in early course.