O’D -v- O’D
Neutral citation (2008) IEHC 468
High Court
Judgment was delivered on May 26th, 2008, by Mr Justice Henry Abbott, and published on November 10th, 2010.
Judgment
Following consultation with two children in a dispute concerning access following a divorce, orders were made regulating the access so that the children spent every second weekend and half their holidays with their father.
Background
The couple separated in 1999 and had two children, born in March 1995 and August 1996. The case began as judicial separation proceedings which were superseded by divorce proceedings, resulting in a judgment in November 2006.
The respondent father sought to have the case re-entered in November 2007 seeking to regulate his access to the children, to have them assessed by a clinical psychiatrist and seeking to give oral evidence about this issue.
In the course of the litigation, which began in 2000, the children were assessed by consultant psychiatrist Dr Gerard Byrne five times, in 2001, 2003, 2004, 2005 and 2007.
The father complained that there had been constant friction around the issue of access, with obstacles put in his way. The last assessment was an initiative aimed at resolving the matter. He claimed that, whether consciously or not, the applicant mother was alienating the children from him.
He said the intervention of Dr Byrne had “run its course” and suggested another assessment by another professional.
The mother denied she had frustrated access and claimed that the father sought to dictate unreasonable terms and did not comply with the terms of access as recommended by Dr Byrne, with which she was willing to comply.
One of the issues was that Dr Byrne had recommended the daughter not be forced to go on access visits to her father, but the father had sought to force her whether she wanted to or not.
In relation to the children being assessed for a sixth time, she said she welcomed the intervention of the court by hearing the children directly.
Mr Justice Abbott said in his judgment that he had suggested this in the light of the Brussels II bis Regulation, which requires the voice of the child to be heard in decisions relating to the enforcement of custody and access orders. While this had previously been done through section 47 procedures (involving a professional assessment ordered by the court), this could be cumbersome, expensive, intrusive and time-consuming. He therefore met the children, with the agreement of the parents, in December 2007.
Mr Justice Abbott said he had received judicial training in relation to the need to talk to children directly in such proceedings. As a result, he outlined certain guidelines for doing so:
The judge should be clear about the legislative framework in which he is talking to the children, as different codes may require different approaches;
The judge should not seek to act as an expert, reaching conclusions on the basis of his own experience;
The principles of fair trial and natural justice should be observed by agreeing terms of reference with parties beforehand;
The judge should explain to the children that he, and not they, is deciding the case;
The judge should explain to the children, in a manner appropriate to their age and maturity, the legislative background for consulting them;
The judge should assess whether the age and maturity of the child are such as to necessitate considering his or her views, if necessary seeking expert advice on this from the section 47 procedure;
The court should seek to avoid a situation where the children speak in confidence to the court unless the parents agree.
In this case, the judge saw the children in the presence of the court registrar and a stenographer. He said both children understood the process and engaged actively with it. They were “very generous in spirit, articulate, warm and happy” children.
They did not indicate that they wished any of the access arrangements changed and said they would be willing to go along with any changes suggested by their parents or the court.
Decision
In the course of the proceedings and before the judge came to make his final order in February 2008, the parties came to an agreement on most of the contentious issues relating to access.
Mr Justice Abbott made final orders that the children spend every second weekend from Friday to Monday with their father; that mid-term and Easter breaks be alternated; that four weeks’ notice be given by each party before booking a summer holiday and that the Christmas holiday be divided into two halves, with each parent having the first half in alternate years.
The full judgment is on www.courts.ie
Adrienne Cawley BL, Gore Grimes, for the applicant; and Seán Ó hUalacháin, instructed by Elizabeth Ward Co, Fitzwilliam Street, for the respondent.