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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'S. (D.F.) v. A. (C.) [1999] IEHC 147 (20 April 1999) URL: https://www.bailii.org/ie/cases/IEHC/1999/147.html Cite as: [1999] IEHC 147 |
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O'S. (D.F.)
v. A. (
C.)
[1999] IEHC 147 (20th April, 1999)
THE HIGHCOURT
1998 No. 111 M
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964
AND IN THE MATTER OF R V O'S AN INFANT
BETWEEN
DF
O'S
PLAINTIFF
AND
C A
JUDGMENT of Mrs. JusticeCatherine
McGuinness
delivered
the 20th
day
of April 1999.
Under Section 11(1) of the Guardianship of Infants Act, 1964 "any person being a guardian of an infant may apply to the Court
for
its
direction
on any question affecting the
welfare
of the infant and the
Court
may make such Order as it thinks proper". Under Section 11(2)(a) such an Order may include "such
directions
as the
Court
thinks proper regarding the
custody
of the infant and the right of access to the infant of his
father
or mother".
Section 3 of the 1964 Act provides:-
"Where
in any proceedings before any
Court
the
custody,
guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust
for
an infant, or the application of the income thereof, is in question, the
Court,
in
deciding
that question, shall regard the
welfare
of the infant as the
first
and paramount
consideration".
Under Section 2 "welfare"
in relation to an infant is
defined
as
comprising
"the religious and moral, intellectual, physical and social
welfare
of the infant".
"Ifound
E
wedged
under the right side of the
Defendant
![]()
while
she
was
having an agitated hypoglycaemic
coma
and
was
![]()
writhing
and moaning on top of him".
"It is erroneous to believe that it is necessaryfor
a trial Judge to resolve every issue
which
emerges in the married life of a
couple
to enable the important
decision
as to
custody
to be
determined".
"There is an acrimonious relationship between the parents, O'S and Ms A. There are allegations andcounter
allegations so it is
difficult
to ascertain the true situation. The
concern
as to the possibility of sexual abuse is, in my opinion, not the
central
or even important issue in this situation.... In spite of the
difficulties
between the parents they have been able to maintain an excellent and individual relationship
with
R.. This
child
is
coping
![]()
well
and shows no evidence of psychological or emotional
disturbance
![]()
currently.
It
would
be my opinion that the
circumstances
of the
death
of E are
central
to this
whole
situation.
Whilst
R is
coping
![]()
well
![]()
with
the situation at present it
would
be my opinion that the situation
cannot
be maintained indefinitely, hence a
decision
has to be made in the near
future
as to the
care
and
contact
arrangements. I
would
respectfully recommend that such
decisions
![]()
can
be made
without
having to address the possibility of sexual abuse or some type of inappropriate sexual
contact....
The
circumstances
of E's
death
are obviously a tragic and very sensitive issue. It is my opinion that this has to be addressed
with
both parties, particularly
with
Mrs. A. My impression is that this has not been resolved and it
could
![]()
well
be that this is a major issue
for
both parents, particularly Mrs. A."
Section 2 of the Guardianship of Infants Act, 1964, defines
welfare
as
comprising
"the religious and moral, intellectual, physical and social
welfare
of the infant". To this list Judges in the past have added "emotional
welfare".
As
far
as religious and moral
welfare
is
concerned
Dr.
O'S states that he is a practising Roman
Catholic.
Mrs. A throws some
doubt
on the level of his practice. I
feel
sure however that Mrs. O'S Senior
would
have an important and beneficial influence in this area. Mrs. A is an Anglican but takes part in the local Roman
Catholic
Church
choir.
She had
close
church
connections
while
she
was
in
Canada
and I accept on her own evidence that she is a sincere believer and has a
commitment
to religious practice. As
far
as intellectual
welfare
is
concerned
both parties are highly educated and R is
clearly
an intelligent little girl. It seems to me that both her intellectual and her social
welfare
will
be promoted by her
continuing
her part-time attendance at her present
crèche.
I
do
not accept
Dr.
O'
Donnell's
sweeping
condemnation
of
crèches
in general and I
found
Ms H, the
crèche
manager, an impressive person. By September 1999 R
will
no
doubt
begin her attendance at primary school. As
far
as physical
welfare
is
concerned
both parties are medically qualified and
well
able to provide
for
this aspect. O'S has a good income and is able to provide
for
his
daughter's
needs. As
far
as emotional
welfare
is
concerned
- and this is a most important aspect of
welfare
- I
can
only refer to
what
I have already said in regard to the steps
which
the parents must take to resolve their
difficulties
in R's interest.