Court allows adjournment of overnight access appeal pending further evidence of children's best interests.

THE COURT OF APPEAL

Kelly J.

Irvine J.

Hogan J.

Neutral Citation Number: [2015] IECA 29

Appeal No. 2015 01

In the matter of the Judicial Separation and Family Law Reform Act 1989 and

In the matter of the Family Law Act 1995

BETWEEN/

M.M.

Applicant/Respondent

and

G.M.

Respondent/Appellant

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 23rd day of February 2015

1. I agree with the judgment which has just been delivered by Kelly J. and I gratefully adopt the very helpful statement of facts which

he has just set out. This concurring judgment deals only with the question of overnight access.

2. At the outset of this judgment it is only appropriate that I should join with Kelly J. in acknowledging the immense patience and

diligence of the trial judge, White J., who has displayed conspicuous fairness and insight in dealing with this most difficult of cases.

3. The essential background to the present appeal is as follows: the father, GM, has been endeavouring to have overnight access to

his two children who are now aged 9 and 7 respectively. The children’s mother, MM, is the primary guardian and they reside with her.

The formal statutory jurisdiction of the Court to resolve matters of this kind derives from s. 11(1) of the Guardianship of Infants Act

1964 (“the 1964 Act”) (as amended) which provides that any guardian “may apply to the court for its direction on any question

affecting the welfare of the child and the court may make such order as it thinks proper.” Section 3(1) of the 1964 Act then provides

that in the resolution of any such question of guardianship, the court “shall regard the welfare of the child as the first and paramount

consideration”.

4. The jurisdiction contained in the 1964 Act must, of course, be viewed through the prism of Article 41 and 42 of the Constitution. It

is clear from the very wording of these provisions that the Constitution presupposes a marriage of equals with both parents having an

equal claim in respect of the upbringing of their children. Article 42.1 of the Constitution provides:

“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the

inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical

and social education of their children.”

5. This principle was first comprehensively enunciated by the Supreme Court in Re Tilson [1951] I.R. 1, a case involving a dispute

between husband and wife in respect of the religious upbringing of the couples’ children. Having set out the terms of Article 42.1,

Murnaghan J. then stated ([1951] I.R. 1, 32):

“Where the father and mother of children are alive this article recognises a joint right and duty in them to provide for the

religious education of their children. The word ‘parents’ is in the plural and, naturally, should include both father and

mother. Common sense and reason lead to the view that the mother is under the duty of educating the children as well as

the father; and both must do so according to their means.”

6. It is clear, therefore, that Article 42.1 envisages that both parents would, in principle, at least, be the joint decision-makers in

respect of the upbringing of their children. The corollary, of course, is that the children are entitled to the care, company and support

of both parents. They are equally entitled, where at all possible, to have a meaningful relationship with both of their parents.

7. It is a matter of the deepest and most profound regret that the bitter and internecine battle which has been fought relentlessly

and in an uncompromising fashion by both parents has so deeply affected the children. It is, regrettably, impossible to avoid the

conclusion that the happiness and general welfare of the children has been grievously affected by sustained parental conflict. Viewed

objectively, there is doubtless considerable fault on both sides. Judged by the evidence of Professor Sheehan and the findings which

were made by White J., it would seem that the father is almost contemptuous of the mother and cannot bring himself to speak a civil

word to her. For her part, the mother seems determined to ensure that the children’s access to their father is curtailed to the

minimum, probably in the hope that he will remain (or become) a distant and aloof figure in their lives.

8. As Kelly J. has recounted in his judgment, the present application is one which was originally brought by the father with a view to

securing overnight access to his children. Although White J. had made an order on 24th October 2014 providing for overnight access

at the father’s house in the presence of a nanny on the 30th October 2014 (and on 8th November 2014 and 6th December 2014), this

never occurred. As Kelly J. has pointed out, the father took all appropriate steps in this regard and it appears from the evidence of

the nanny (which White J. fully accepted) that the children were settled in and comfortable in the father’s house and were looking

forward to an overnight stay on the first of these overnight access visits which had been scheduled for 30th October 2014. In his

ruling White J. specifically found that the children “could well have stayed overnight that night” and that they “would have enjoyed

it.”

9. The mother nevertheless took steps to ensure that this would not occur. She arrived at the father’s house, removed the children

and – as White J. found – unfairly berated at some length the nanny who was present to supervise the overnight access visit. While

the mother was doubtless understandably anxious for the children and concerned that they might be fretful or nervous about staying

overnight in an environment to which they were unaccustomed, nevertheless no objective reason by way of justification of this

conduct has been advanced by her. The steps which she took amounted, in effect, to the wrongful frustration of a court order.

10. It is, perhaps, not necessary to consider whether either parent can be said to have “failed” in their duty towards their children

within the meaning of Article 42.5, although the wrongful and unilateral frustration of a court order might well be regarded as evidence

of such parental failure. As this case, nevertheless, is one where the judicial branch of the State is obliged to resolve the dispute

between the parents, then the principles contained in Article 42.5 can nonetheless be applied, if only by analogy:

“...the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents,

but always with due regard to the natural and imprescriptible rights of the child.”

11. In other words, in making this decision regarding overnight access, I find myself endeavouring to supply the place of the parents,

as decisions of this kind regarding where the children stayed would, of course, be normally one for the parents alone. The Court must

accordingly act in a fashion which is proportionate, which intrudes as little as possible into the family decision-making (“...by

appropriate means...”), and which is guided by the objective of advancing the welfare and best interests of the children (“...but

always with due regard to the natural and imprescriptible rights of the child....”).

12. As Article 42.5 itself tacitly acknowledges, decision-making by the State – rather than by parents - in matters of this kind is

nearly always unsatisfactory. In matters of unavoidable parental conflict, the judicial branch of the State must, in the interests of the

affected children, seek to repair and mitigate the damage caused by that conflict, at least to the limited extent that it can

reasonably do so. Where it is possible and it is in the best interests of the children to do so, the Court must seek to respect and

uphold the substance of the family life which, but for the parental conflict, the children would otherwise have enjoyed.

13. As I have already mentioned, it follows from the very language of Article 42.1 that one of those rights of the children which the

judicial branch must uphold when exercising the jurisdiction conferred by Article 42.5 is the right of the children to the care and

company of each parent, where this is judged objectively to be in their best interests to have such contact: see, e.g., Re JH [1985]

I.R. 375, 394, per Finlay C.J. and N v. Health Service Executive [2006] IESC 60, [2006] 4 I.R. 470.

14. Overnight access with each of the parents must generally be regarded an integral feature of that right. It is that which conveys

the essence of normal family living and is that which tends to separate out the normal, carefree element of family life from the

somewhat stilted formality of a supervised access visit. The objection taken by the father that, without at least some, limited

overnight access, the children can never really come to know their father or have a meaningful relationship with him is, I think, well

taken. There must be a real danger that without such access the father will remain a remote figure, excluded from the lives of the

children.

15. Here it must be recalled that Professor Sheehan found that the children had no fears of their father, that he loved them dearly

and that he posed no threat to them. These are important findings, as were the facts otherwise, overnight access might well not at

all be in the interests of the children. Professor Sheehan acknowledged that there was a danger that, absent such overnight access,

the children might otherwise feel alienated from their father. It seems clear from the evidence of Professor Sheehan and the findings

of White J. that the children felt not only distressed, but also compromised by the entire conflict. Specifically, they were anxious lest

they would suffer their mother’s displeasure if they were to stay overnight with their father.

16. In the four or five months which have followed, there has been no overnight access with the father. This is a long time in the

lives of these young children. It is true that in his ruling of 12th December 2014 White J. adjourned - for the most understandable of

reasons - the matter to March 26th, 2015. I nevertheless confess to an anxiety that, by reason of the unilateral actions of the

mother, the children were being denied the substance of one of aspect of their constitutional entitlements under Article 42.1, namely,

the entitlement to the care and company of their father by the total denial of any overnight access, even if such access is quite

properly limited and supervised. In the end, however, it is only because of the views of Professor Sheehan (who thought that it was

interests of the children that such overnight access be paused briefly) and in deference to the immense knowledge and experience of

this case which White J. has acquired, that I have agreed to allow this part of the order (i.e., adjourning the question of overnight

access to 26th March 2015) stand.

17. However, like Kelly J., I am confident that at the resumed hearing White J. will uphold the substance of the children’s entitlement

to overnight access with their father in a proportionate, regulated and supervised fashion should the evidence establish that it is

objectively in their interests that they should have such overnight access.

18. It is for these reasons that I agreed with the judgment of Kelly J. and the order which he proposes.

Irvine J. agreed with the judgment of Hogan J.