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High Court of Ireland Decisions
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Cite as:  IEHC 543
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Judgment Title: A.B -v- C.D
Neutral Citation:  IEHC 543
High Court Record Number: 2008 265 CA
Date of Delivery: 26/07/2011
Court: High Court
Composition of Court:
Judgment by: Abbott J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 543
THE HIGH COURT
( ) CIRCUIT
COUNTY OF ( )
[2008 No. 265 C.A]
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT 1995
JUDGMENT of Mr. Justice Henry Abbott delivered on the 26th day of July, 2011
1. This appeal has been taken by the respondent father against five orders made in the Circuit Court from the 17th June, 2008, to the 22nd October, 2008. These orders all dealt with the welfare of the three children of the marriage of the applicant mother and respondent father. The applicant and the respondent are referred to herein as A.B. and C.D. respectively for the purpose of protection of anonymity and active promotion of the in-camera rule, and they shall hereinafter for the purpose of convenience and clarity be referred to as mother and father respectively.
History of the Marriage
3. The first resort of the parties to legal proceedings was made by the mother, where it appears she obtained an interim barring order in the District Court on the 23rd May, 2002. This barring order was never made permanent, but in any event, its necessity abated by reason of the fact that the mother went back to the family home with the three children almost immediately. While the District Court did not play any significant part in the background of these proceedings it is worth noting, for the purpose of further attention in this judgment, that the District Court ordered a psychiatric examination of the father, on the application of the mother. This examination did not reveal any mental deficiency on the part of the father, but associated with it was the emergence of a interfering behaviour of the mother with the psychiatrist involved which regrettably proved to be an unchecked cloud over all subsequent proceedings.
4. The father continued to work in location No.1 but his rented accommodation close to location No.2 enabled him to have access to the children. The Family Law Civil Bill was issued on the 3rd October, 2002, and in para. 8 thereof, the mother pleads the details of the unhappy differences between the parties as follows:-
History of Litigation
2. On the 7th October, 2003, the judicial separation was heard and on the 8th October, 2003, judicial separation was granted with an adjournment of various property issues. By this stage the report of expert No. 3 was available and no issue appears to have been made in respect of that on the hearings of the 7th and 8th October, 2003.
3. On the 29th October, 2003, in the County adjacent to location No. 2, the father was granted liberty to bring a motion varying maintenance.
4. On the 28th November, 2003, maintenance for the children was reduced. Certain property issues were dealt with and access periods were extended by 15 minutes where it took place from 4.15pm and there was an agreed schedule in relation to Christmas access.
5. On the 5th May, 2004, at another County adjacent to location No. 2 (by this stage this is the fourth County to which the proceedings had been transferred, indicating that the proceedings required, and were given, urgent attention by the Circuit Court judges concerned) on foot of a notice of re-entry served by the father, he sought to have the matter re-entered to deal with the following matters:
1. Access to the children of the marriage,
(b) telephone access,
(d) parent/teacher meetings,
(e) children’s homework,
(f) children’s passports.
3. The involvement and influence of the mother’s sister (named) with the children of the marriage.
4. The issue of counselling for the children of the marriage. This application was grounded on the previous proceedings and orders, particularly the order of the 27th November, 2003, granting liberty to re-enter and such oral evidence as would be heard. The application and the notice of re-entry was heard by the late Judge Reynolds and she refused the father’s application as per notice of re-entry and granted costs to the mother, including reserved costs of the 23rd April, 2004, and ordered as follows:
“…3. Direct that social worker (expert No. 2) prepare an up-to-date report for direction that the children of the parties attend expert No. 5 (who is a child psychologist) in a private capacity and not for court use.”
(I refer to expert No. 5 in that order as it appears that expert No. 2 referred to in para. 3 above was replaced by social worker expert No. 4 who herself reported on the 29th June, 2004).
The order continued as follows;
“5. That the respondent is to give his consent by 5.30pm this evening to the children attending expert No. 5.
6. Direct that the father is not to contact the Chairman of the Board of Management of the children’s school.
7. The father is to attend the ordinary parent/teacher meetings at the children’s school and is to arrange any further meetings which should not exceed ten minutes in duration in the normal manner if he so requires such meetings.
8. Varies the original order regarding the children’s homework to an order that homework is to be finished before they go to father.
9. Amend access times to 5.15pm and 8.00pm at latest.
10. Father when collecting the children is to call to the door of their residence and knock. The children are to be ready and all leave together.
11. Adjourn the question of holidays until the reports are to hand from expert No. 2, who should deal with same as soon as possible.
12. Liberty to mention the case before Judge Reynolds when reports are available.
13. Both parents to go to children’s Holy Communion but father does not have consent to take communicant away for private time.
14. The child, Geraldine, is to have two guests at her choosing at Awards Ceremony.
15. Neither party is to film or record the other when taking or returning the children. Any breach of this order will be a contempt of court.
16. Certificate for Senior Counsel not allowed for date of order or Friday, 23rd April, 2004.”
6. On the 1st and 2nd July, 2004, before Judge Reynolds in the Circuit Court at location No. 1 (fifth County) the following order was made:
“1. Allow the father to take the children to Lanzarote from 7th July, 2004, to 15th July, 2004. Collect at location No. 2 and return thereto. The children to speak with the mother by phone everyday at mutually agreed time and other holiday access as follows:
19th to 25th July, 2004, with mother.
27th to 30th July, 2004, with father.
11th to 29th August, 2004, with mother.
2. The mobile phone to be returned to Natasha to allow telephone access resume with her father.
3. No discussion whatsoever by any person either the parties or their extended families with the children in relation to the marital breakdown.
4. Liberty to have the matter listed before the late Judge Reynolds sitting in the (fourth County) during the last week of July.”
7. On the 28th July, 2004, at County four, the late Judge Reynolds made an order that all communications regarding access were to be conducted between solicitors only. The learned judge ordered that access was to be varied to 12 noon on Thursday, 29th July, 2004, to 1st August, 2004, at 1.00pm and from 12 noon on the 4th August, 2004, to Sunday, 8th August, 2004, at 7.00pm. Christmas access was to be decided at October special sittings. All other applications in relation to access were to be remitted to the District Court (I presume such remittal to the District Court was to cater for the pending vacation as it appears that there were no further District Court applications).
8. On the 8th October, 2004 and the 28th October, 2004, application of the as listed or re-entered was adjourned to the fourth County for the 23rd November, 2004.
9. On the 24th November, 2004, at the fourth County, Judge Reynolds made the following order in relation to access:
10. On the 4th February, 2005, in the first County (location No.2) the following order was made:
“1. Adjourn to Sligo until the 10th February, 2005.
2. Leave to bring committal proceedings against the mother. Abridge time for any notice of motion the father may care to bring for committal. Returnable for 10th February, 2005, in fourth County.
3. Prohibition on the children being referred to psychiatric or psychological services without either agreement of the father or order of court.
4. Reserve costs.”
11. On 10th February, 2005, at fourth County, it was ordered that the matter was to be adjourned to first County on 18th February, 2005, at 10.00am. All children were to be in attendance. Midweek access allowed to the father was suspended until 18th February, 2005. Weekend access was to continue.
12. On 18th February, 2005, the application for attachment and committal was dismissed. There was an Interim order changing access to Natasha to once every fortnight every second week. It was ordered that weekend access to Natasha was to be suspended at present. It was directed that all parties attend expert No. 5 and a report was to be furnished to court. It was directed that a separate report from expert No. 6 dealing with Natasha was to be made to give assistance to court as to how the access between Natasha and her father could be addressed. A programme was to be put in place to introduce this into her (Natasha’s) life. The case was adjourned to a family law day in fourth County on 5th April, 2005. A report was to be applied for jointly by both solicitors and issued jointly to both solicitors before the end of March 2005. Any affidavits were to be filed in accordance with the order. Deed of transfer of property was to be dealt with and costs were reserved.
13. On the 6th April, 2005, the matter was adjourned from fourth County to second County to 28th April, 2005.
14. On the 28th April, 2005, the matter was adjourned from second County to sixth County session commencing on the 10th May, 2005.
15. There was an order made on the 12th May, 2005, in sixth County, reinstating weekend access with Natasha commencing that weekend. The matter was adjourned for mention to the fourth County on 21st July, 2005, at 10.00am with a view to reinstating regular access during the week.
16. The order dated the 20th July, 2005, made permanent access arrangements set out in order of the 18th February, 2005, and all parties were to attend expert No. 5 and a report was to be prepared by that expert. The father and mother were to co-operate with expert No. 5 and abide by her directions in relation to Natasha’s counselling. The children could telephone the mother at least once during access to set her mind at rest. The father was directed not to write or telephone the mothers’ employers and he was to attend all parent/teacher meetings at school. During the school term the midweek access was to be suspended pending expert No. 6’s report being furnished. The solicitor for the mother was to inform expert No. 6 that all parties were directed to co-operate. The father’s solicitor would not communicate with expert No. 5 by letter or telephone and the applicant’s solicitors would notify expert No. 5 of the orders made. This order was appealed to the High Court on Circuit.
17. By order dated the 14th day of February, 2006, the High Court on Circuit substituted for expert No. 6 a new expert, expert No. 7, but otherwise affirmed the order in general terms.
18. The order of the Circuit Court, 5th May, 2006, received terms of settlement that the court applications relating to access be suspended pending expert No. 7’s plan for difficulties to be addressed by him and it was noted that the father did not accept the comments in expert No. 6’s report.
19. On 30th May, 2006, there was an application dealing with property matters.
20. On 31st May, 2006, the matter was adjourned to location No. 2.
21. On 30th June, 2006, the matter was adjourned to 26th July, 2006.
22. On 26th July, 2006, there was an application dealing with property matters.
23. On 10th November, 2006, there were divorce proceedings pending in location No. 1. A withdrawal application (re: property) and file was forwarded to location No. 1 Family Law Court.
24. On 6th November, 2007, Judge Reynolds adjourned the matter to a family law day in location No. 2. He reserved the question of costs.
25. On 16th January, 2008, the matter was adjourned to 17th January.
26. On 17th January, 2008, there was a settlement ruled. Terms were handed into court and orders were made in the terms thereof for a format of access for the three children.
27. On 9th May, 2008, at location at County No. 7, the matter was adjourned to County No. 1.
28. On 10th June, 2008, the matter was listed for 17th June, 2008, at County No. 1 location No. 2.
6. The following orders are the orders to which the present appeal relates.
2. On 25th June, 2008, before Judge Reynolds, there was an order affirming refusal to give custody and primary care of Edward to the father in the order of 17th June, 2008. Access was suspended at paras. 2 & 3 pending a report from expert No. 8, the guardian ad litem. It was ordered that expert No. 8 was to be appointed as guardian ad litem as directed by the HSE. The matter was adjourned to County No. 5.
3. On 31st July, 2008, at Second County, the father was granted access to the three children every second Saturday from 3.00 to 6.00pm with and in the company of the mother. Access was to take place at a neutral venue, to commence on the 2nd August, 2008. The father was granted access to Edward every Wednesday from 4.15 to 8.00pm, to commence on the 6th August, 2008, otherwise the orders of the 17th June, 2008, and 25th June, 2008 were affirmed.
4. Order 16 of the 10th October, 2008, before Judge Reynolds, refused to transfer custody and primary care of Edward to the father. Access was to remain in place every second Saturday for three hours. Access to Edward on Wednesday was to cease. The mother was ordered to bring the children on access visits on Saturday, 18th October, 2008. This access was to be unsupervised. The matter was adjourned to Wednesday, 22nd October, 2008, for mention, so that the name of the person who would supervise future access visits could be agreed. Only the father was to be present during access with the children.
5. Under the order of 22nd October, 2008, before Judge Reynolds, the mother was to deliver the children and collect them every second Saturday. In the event that a commitment arose for the mother that was not routine, the solicitor for the father was to be informed on the previous day that Sean (her partner) would deliver and collect the children. Liberty to mention was granted should either party come up with another person who would deliver and collect the children if the father could not exercise access on any particular Saturday due to work commitments. Alternative access could be agreed between the parties. The school was directed that reports were to be made available to the father by post.
7. By notice of appeal dated the 24th October, 2008, the father appealed the entirety of all the last five mentioned orders above, and applied to this Court sitting in Dublin to transfer the appeal from County No. 1 for urgent hearing in this Court sitting in Dublin on grounds of urgency, which application was not contested by the mother.
Litigation on Appeal
2. An order directing that the applicant/respondent mother comply with the directions of expert No. 7.
3. Such further order.
4. Costs of the application.”
9. In para. 6 he avers that following extensive negotiations, for which expert No. 7 was available to both parties, it was agreed that access for the father to Natasha, Geraldine and Edward was to be in accordance with expert No. 7’s ongoing and evolving recommendations, and that it was further agreed that the parties attend expert No. 7 for assistance at whatever intervals he proposed with a view to improving relationships within the family. The parties agreed to fully cooperate with expert no. 7 and agreed that the children should attend expert No. 7.
10. In para. 7 the father avers that since the making of the order of the 16th January, 2008, expert No. 7 recommended that Edward should have weekly access with the father from 5.00pm to 8.00pm each Wednesday. He avers that he had complete access to Edward from the 12th March, 2008, and notwithstanding a further meeting of the father with expert No. 7 on the 11th April, 2008, indicating that access would continue every Wednesday from 5.00pm to 8.00pm, and the fact that the father had been at his home within the vicinity of location No. 2 on every Wednesday since the 12th March, 2008, to have access with Edward, no access had taken place. He averred that the mother had failed to bring Edward to his home in the vicinity of location No. 2 for access since the 12th March, 2008. He referred to a letter from expert No. 7 to his solicitors dated the 7th May, 2008, as CD..03 which stated as follows:-
The Mother’s Replying Affidavit
12. In para. 5 she avers that it was recommended by expert No. 7, and it was agreed between the three children and the father, that the father and/or his partner, Kathleen, would not attend any public event where the children were in attendance without the father giving the children prior notification. At a meeting with expert No. 7 on 19th June, 2007, attended only by the father and the mother, expert No. 7 reinforced this recommendation to the father. She avers that over the past twelve months in particular, the father and his partner Kathleen’s unannounced appearance at public events have angered and hurt the children. These are generally religious events which involve the children. This form of forced participation in their lives has resulted in the children becoming even more alienated from their father. According to the mother, the father has refused on numerous occasions to comply with recommendations and the mother listed nine events (mostly religious) of a public nature from the 19th April, 2007, to the 3rd May, 2008, where she alleged that the father attended unannounced, sometimes accompanied by his partner, Kathleen. In para. 6 she avers that the occurrence of an angry dispute between the father and Edward relating to Edward taking home a ‘big toy’ which had been the subject of mediation by expert No. 7, resulted in the father physically restraining Edward from removing the toy and that at that stage, Natasha got out of the car and asked the father to “cop on to himself”, and she stated to her father that expert No. 7 said that Edward could have the ‘big toy’. She said that later that evening Edward informed her that his father had “slapped him hard” on the back of the head for spilling a cup of milk. He said that his visit with his father was very unpleasant and that there were numerous children from the housing estate running in and out through the house and that his father was agitated. She stated that on Monday, the 10th March, she attended Edward’s First Confession ceremony in the church. The father did not inform Edward that he would be attending the ceremony and Edward was in tears and angry in the church, and even though the priest asked the children to hug their parents (as part of the ceremony) despite her best efforts in the church, Edward refused to acknowledge or speak to his father. In para. 7 she says that on the following Wednesday, the 12th March, Edward refused to see his father for access. She avers that she had to endeavour to coax and encourage him to visit with his father but he resisted and cried and refused to get into her car. She stated that on the 19th March, Edward again refused to attend and despite her best efforts, he continued with his resistance. The more she pressurised him to go, the more resistant he became. Each week she engaged him in dialogue and conversation about his issues in an attempt to reinstate his visits to his father. On the 11th April, she attended a meeting with expert No. 7 and the father with a view to resolving the impasse. The tone of this meeting was different to all previous meetings. She said there was little discourse surrounding the cause of the recent impasse or the resolution of the problem – rather she avers that she was issued with a strong threatening ultimatum and was directed to force Edward to visit his father. In para. 8 she avers that on the 16th April, 2008, she again attempted to bring Edward down (for access). He refused and she told him that expert No. 7 had said that he would have to go and live with his father if he continued to refuse to visit him. He became hysterical and unmanageable and said no one would ever make him go down there again. He also pointed out to her that expert No. 7 had told him that this would never happen; he had been give an assurance by expert No. 7 that he would not have to go and live with his father if he did not want to go. She avers that she was most concerned at the extremeness of his behaviour as he is normally a quiet, placid and cooperative child. On the night of the 16th April she wrote a letter to expert No. 7 expressing her concerns and informing him of what had occurred over the following days. She talked as a family unit to all three children about the situation and the implications of their minimal relationship and their ongoing anger, fear and hatred towards their father. The children suggested that they might visit their father and talk to him about the situation. Edward agreed to visit as part of the family unit.
13. In his affidavit, the father had stated that the mother had failed to bring Edward to his home for access since the 12th March, 2008. In para. 9, the mother took issue with this assertion, saying that it was untrue insofar as on the 23rd April, 2008, all three children, including Edward, visited the father in the father’s house in the vicinity of location No. 2, and that Edward calmly spoke to the father telling him how he felt and why he wanted a break from visiting. She stated that she hoped that when Edward would see and talk to his father that this might break the impasse and he would stay with him to have access. She alleged that unfortunately the father was not receptive to any compromise made by his children and he began to raise his voice toward the children and saying “I’ll teach you all a lesson before this is over”. She alleged that Edward began to tell him that he did not want to go down and live with him and that the father immediately became aggressive towards the mother and said “I cannot believe that you told him (Edward) that he would have to live with me”. She avers that the father then attempted to grip Edward by the arm but Edward wriggled away and ran to the car and jumped into the back seat. The father ran down the driveway after Edward and attempted to pull him out of the car. From the doorstep she observed Edward pushing himself as far as possible from the car door to the opposite side of the back seat where, as his father tried to grab he kicked out numerous times and screamed at the top of his voice “get away from me”. The mother stated that Edward succeeded in making his father take his head out of the car and Edward attempted to close the back door. She avers that an entanglement ensued whereby Edward attempted to close the door from the inside and his father tried to hold it open. Finally, according to the mother, Edward succeeded in closing the door and he locked himself in the car. The father walked back to his front door where the mother was standing with Natasha and Geraldine. Geraldine was very angry and upset at her father’s behaviour, and told him so. According to the mother, Natasha did her best to calmly reason with him, but her father would not listen and instead launched into a litany of accusations against the mother saying that she had orchestrated the whole evening. Since that date Edward had refused to go on access visits and, under pressure, has taken extreme action including locking himself in the bathroom and saying he will “kill himself if he has to go down there” and further, “he will jump out the top window of his father’s house”. In para. 10 she stated that during the period from 11th April to 23rd April, 2008, she made numerous phone calls to expert No. 7 to seek his help and guidance but was unable to reach him. She received a letter of 2nd May, 2008, from expert No. 7 stating that he wished to discuss the situation with her on her own. In para. 11 she avers that on 3rd May, 2008, the father with his partner, Kathleen, attended Edward’s communion ceremony. Following the ceremony the children refused to speak to the father. After the ceremony the father brought a large gift through to the tea room and he pinned a card with a photograph of himself and Edward on it. This was visible to friends of Edward at a social event thereafter and the father pointed to the large gift upon which he had pinned a card with a photograph of himself and Edward on it. She avers that according to Edward, he felt that the father had belittled him in front of his peers and all the children at the table laughed at him. Shortly after this incident, Edward quietly came to her and asked to leave the social event. He refused to take the large gift and when he got into the mother’s car he just said “I really hate him”.
15. In para. 14 she alleges in general terms that she has moved on and managed to rebuild her life that she is in a stable and happy relationship for the last five years and pursuing educational and career goals at a high level. She describes in detail what she avers as a wholesome and nurturing relationship with each of the three children and they relate exceptionally well to her partner, and that the household is a very happy place. She states that the children do well in school and that Edward is successful in the sports area and has a good group of friends. In para. 15 she avers that within the natural family unit the children are happy and stable and that the only time that the children become disturbed and unhappy is when they have to interact with their father or attend expert No. 7 to discuss their relationship with their father. She avers that because of the inconsistencies and mixed messages, the children now view expert No. 7 with distrust and suspicion and their relationship with expert No. 7 has become fraught. Clearly, she avers difficulties exist between the children and their father and alleges that their father’s attitude and preoccupation with enforcing his rights is disturbing their emotional grounding. She states that the unprecedented number of court hearings and demands for reports on his children, most of which have been initiated by him, has resulted in irreparable damage. In para. 16 she agrees in principal that all children are best having a relationship with both parents and states that she had done her very best to facilitate access between the children and their father over the difficult years and that she has driven both herself and the children from location No. 2 to location No. 1 over 23 times over the past two years to try and improve relations within the family. She avers that the reality of the situation is that as the three children have grown up, all three have followed the same pattern of conflict reluctance to engage and intense anger and fear towards their father and that Natasha (13) is now able to clearly articulate her feelings and give insightful accounts of her past experiences with her father. The mother has very serious concerns about the children’s future mental health and stability as a result of this abrupt and coercive action (to force Edward to visit his father). She alleges the father, through his own actions, has destroyed his relationship with his own children and the situation has become quite hopeless. Edward has followed the same path as the older siblings. She states that he is the youngest, most sensitive and most vulnerable child and the consequences for this child are far greater as his father persists in inflicting the maximum amount of damage on him. In para. 17 the mother avers that expert No. 7 has recommended that Edward now change homes and schools and be placed in the primary care of his father. She says that she questions this conclusion and would have serious concerns for the welfare of Edward if such a proposal was ever implemented. She alleges that this recommendation is inconsistent with the report written by expert No. 7 for the courts in January, 2008. She has concern that this decision had been taken without interviewing Edward since the impasse that occurred. She wished to have on record that she did not agree with this recommendation, and that she did not believe that this is in Edward’s best interest. She states that Edward does not want to live with his father and his views ought to be considered and due weight attached to them. She alleges that attempting to separate him from his sisters against his will, rearing him in a strange household, attempting to force him to change schools and leave his friends, and attempting to break up his secure and stable family unit is an attack on the child himself and runs the risk of dangerous consequences ensuing. In the making of this decision, according to the mother, Edward’s voice has been ignored, notwithstanding the content of expert No. 7’s own report of January, 2008, in which he notes that Edward “expressed to me the fear that he might have to go and live with his father which he would not want”. The mother argues that Edward has the right to express his views but at present he lacks a real voice to state what he wants. She believes he has a right to be represented independently of the parties hereto and his views expressed and heard. He has a right to realise his personality and dignity as a person and as a human being. At this stage she did not believe that expert No. 7, the courts, his father or she would be able to “make” Edward have a relationship with his father. This course of action has only succeeded in forcing Edward to live under severe stress and it will, in her opinion, end in disaster. It appears to her that in this situation the welfare of the father is being considered as more important than the welfare of the child. She wished to state, for the record, that she believed that there was now a serious risk to Edward and he is endangered physically, mentally and emotionally. She asked the court to view the case from the perspective of the child and in para. 18 finally prayed an order of the Circuit Court dismissing the reliefs sought in the notice of motion.
16. There was a further short affidavit filed on behalf of the mother sworn by Sean…, partner of the mother, on the 16th June, 2008, who averred that he heard Edward say in discussions between him and his mother since the breakdown in access occurred that he was going to take out the kitchen knife and stab himself in the neck; and that further comments made include references to killing himself if he is made to live with his father.
The Reports upon which Circuit Court Hearings were Based
B. A review report (dated 12th January, 2008)
Expert No. 7 – 10th June, 2008
2. The second choice is to take steps to protect, insofar as is possible, the life of the children’s relationship with their father. A change in the orders affecting Edward’s care would be the first step in this process involving acceptance of the parental assistance offered to the parents in the context of their conflict having been unsuccessful on its own in reversing the alienation process at work in the family. A reversal of the orders for care in relation to Edward provides a context which is most likely to secure the continuation of his relationship with both parents for the remainder of his childhood. A second step in this process is to renew orders for access for the older two girls to the father at the same time that the new orders for Edward might be made. The position leaves open the possibility that it may also be in Geraldine’s interest (the middle of the three children) in time to have a reversal of orders in relation to her care as well. The eldest child, Natasha, is going to boarding school five days a week in September, 2008, and expert No. 8 believed it was best for her to continue on this path to remain in her mother’s care and to join her sister for some access periods to the father at the weekend. Expert No. 7 expressed the view that the second of these option should be initiated at the moment, and that he was satisfied that the father was willing and capable in every sense of providing good parental care for Edward and would do nothing but support the continuation of his relationship with his mother, but that he believed that it was necessary for him to move Edward’s school as part of this plan and that Edward had many friends in the school in the school B in the vicinity of location No. 2 and that he was sure that he could make good adjustment over time to this changed setting.
B. That Edward should have access to his mother in the following manner:-
(i) Every Wednesday after school until 8.00pm when the mother should return him to the father’s care and home.
(ii) Every second weekend from Friday after school to Sunday at 1.00pm and every other weekend from Friday after school to Saturday at 9.30pm.
C. Natasha and Geraldine should have weekly period of access with the father from 1.00pm to 7.00pm each Sunday. The mother to deliver the children to the father’s home and the father to return Natasha and Geraldine to the mother’s care at the end of the access period.
D. That the question of Natasha’s care be reviewed by the court in January, 2009.”
19. This report was prepared under a s. 47 order of the High Court on appeal ruling that there was agreement of the parties that expert No. 7 would carry out such a report. It is important to note that no particular terms of reference were provided by the agreement or order of the court, and that expert No. 7 was, therefore, obliged to be “at large” in terms of s. 47 regarding the welfare of the parties and their children. Expert No. 7 had been appointed by reason of the fact that expert No. 6, who had been engaged in counselling of the older children, particularly Natasha, expressly wrote to the parties and the court indicating that such role would preclude her from engaging in the s. 47 process on the litigious side of the family’s business. An idea of the wide scope and resources devoted and required for this process is given by the description of expert No. 7 of the nature of the report being based upon the following consultations:-
B. Four consultations with the father.
C. Three consultations with the mother.
D. One joint consultation with the mother, father and Edward.
E. One consultation with the father and Edward.
F. One consultation with Natasha and Geraldine together.
G. One consultation with the three children together.
H. One consultation with each of the children alone.
20. The final paragraph of the description of consultations with the father in this report is particularly telling as it became a sub-theme in later inquiries during the whole hearing of the appeal, both involving expert No. 7 and other experts:-
23. The consultation with the three children together centred mainly around the new girlfriend of the father – “Kathleen”. Natasha felt the relationship was good for the father in that it stopped him from being too involved with their lives. Edward was less negative about Kathleen and was able to say that sometimes he liked her and went on to say that he liked it when he, Dad and Kathleen go to restaurants. Geraldine recalled that her last birthday was held in C.P., and that she, herself, (presumably Kathleen) was there on that occasion.
24. The consultation between expert No. 7 and Natasha showed Natasha recalling her experience of the separation involving violence between the father and mother “he used to hit Mammy – one day he hit her really hard – she fell backwards over the wooden table. I was on a stool. I started crying because my mother was crying – he came over and smacked me on the arm – and when he threw me into my room – I was almost six years – he pulled me by what I was wearing”. She described her experience of access with her father as one of boredom. She described him lying on a couch drinking cans and cans of beer and making them paint, describing him as smacking her a lot and pulling her hair, and that he would take one of her favourite toys if she did something wrong and lock it away in his office. She describes positive experiences with her siblings, mother and Sean.
25. According to expert No. 7,Natasha, in contrast to the previous meeting with all three children was “very chatty when seen alone”. She was clearly upset at the hostility she experiences around her father’s arrival at the door to collect Edward. She described Sean as a really kind man. The overriding feeling Geraldine expressed in relation to her father was a feeling of fear, saying that he scared her so much at Christmas that she thought he was going to attack her and that she did not want to go. She described a physical struggle at her father’s Jeep. The mother objected on that occasion when the father stated that “if you do not come with me I am going to put mother in jail”, and Natasha had to come to her rescue. Natasha was instrumental in releasing her back into the house by pinching her father on the hand and she summarised her response to this incident by saying “it was the worst day of my life”. She went again in the New Year with her father outside the jurisdiction “where I would not be able to see Mammy”. While she was there she had tried to reach her mother on her father’s phone but was not able to and she returned to the house and locked herself into the room. She described lewd behaviour of a friend of her father at which “Dad laughs and tells us to do the same”. She spoke of liking Sean, who she saw as “really very kind”. When expert No. 7 spoke to her about Edward’s enjoyment of going with father and wondered how it was for her to miss some of the fun he clearly had with father, she replied “I do not mind Edward going so long as he does not hurt him”.
26. The consultation of expert No. 7 with Edward individually was reported as follows:-
1. That all court hearing regarding the children be suspended for two years.
2. That there should be no orders for access for the girls for the next two years (Edward’s situation is quite different and will be dealt with below).
3. That the parents be required to attend counselling (either with the undersigned or some other suitable professional appointed by the court) on a monthly basis during this period.”
2. That the parents be required to attend counselling as described.
3. That the matter only be re-entered for hearing in the court over the next two years to consider a possible change of residence for Edward and that such re-entering only be done on the request of the counselling professional who would be asked to monitor the situation on behalf of the court (this turned out to be expert No. 7).
4. Edward should have access with his father in accordance with the schedule as detailed. The pick up and leave back points should not be at the mother’s house and she should arrange for some suitable person to assist with this if she could not do it herself.
5. Edward should have three separate weeks holidays with his father for the coming summer 2006 and the three weeks holidays next 2007, in periods of two weeks and one week. These were to be consistent with the mother’s holidays with the children as well.
6. Edward should spend half of Christmas holidays with each parent, once the three day centre of the festive period had been excluded and details were made for division of the festive period over the three days.
7. Edward should spend half of Easter holidays with each parent.
8. Edward should receive a telephone call from his father on every day that he does not see him, the same applies to his mother on the days he does not see her. While away on holidays this arrangement should read every second day.
9. There should be a review of the whole matter by the court two years from the date the order should be made.
28. This report reviewed progress since the initial s. 47 report of April, 2006 following a court order approving the proposals of expert No. 7 for an interregnum free of litigation. This report introduced two worrying strands, the first involving what was regarded by expert No. 7 as the father strategising in multiple ways to ensure that the mother did not achieve a full eclipse of himself as a parent. The supreme moment of this strategy thus far was his attempt to have himself placed in a position in the management at the mother’s employment which expert No. 7 decried as a significant assault upon the mother, hitting right at the heart of her capacities to perform her employment functions. By the time of writing of this report, expert No. 7 noted that he understood that the father had withdrawn from this strategy. A second worrying theme outlined in the parental relationship concerned the events surrounding Edward, beginning with the withdrawal from weekend access with his father and reluctance to spend any summer holiday period with him. Expert No. 7 noted that despite clear signs of this emerging position in Edward, the mother was unresponsive to expert No. 7’s attempts to coordinate an early meeting with Edward and his father to address the situation in a timely manner stating, “she dug her heels in deep”. A third disconcerting development also surrounded expert No. 7’s sympathetic approach to the desire of the children who were making their Confirmation and First Communion (the youngest two) and arrangements by expert No. 7 that the father would be asked that he would stay away from these ceremonies. Expert No. 7 noted that these church related events were the cue for the father’s partner, Kathleen, to come centre stage in the family drama for a short period of time by helping the father to continue to assert his rights in different domains, principally and most dramatically, in what can only be described as bizarre behaviour based on misguided religious principles, insisting on attending these and related religious events and by pursuing her stance to the bitter end on some occasions with the ecclesiastical authorities (as further evidence in the appeal hearing indicated).
29. Expert No. 7 explained in his up to date report of 2008 that both girls were extremely troubled and upset by the conflict surrounding the religious events. Geraldine appeared to suffer a lot of nightmares in which her father was experienced as hurting her physically. The father had tried his best to remain connected to whatever school or community events the children might have been involved in. Expert No. 7 considered that it was important for him to assert his rights as a parent to attend these events and to show his interest in his children regardless of what their express wishes might be. The girls expressed, through expert No. 7, their happiness that the father was largely out of their lives. They said they wanted nothing to do with him and really wanted to receive nothing from him at all. He recorded that he had seen Edward alone on four occasions since the end of September, 2007. His findings are crucial and representative in the consideration of the appeal in this case and I quote same as follows:-
B. Family should attend meetings with expert No. 7 every six weeks over the next year with such attendance on a voluntary basis for the girls.
C. The father should consider some additional personal therapeutic support in which his partner, Kathleen, should join to address the question of how best to support the father in the context he finds himself in.
D. The matter to be reviewed by the court again in one year.
B. That Edward should have access to his mother in the following manner:
(i) Every Wednesday after school until 8.00pm when the mother should return him to father’s care and home.
(ii) Every second weekend from Friday after school to Sunday at 1.00pm and every other weekend from Friday after school to Saturday at 9.30pm.
C. The girls should have a weekly period of access for their father from 1.00pm to 7.00pm each Sunday. The mother to deliver the children to the father’s home and the father to return children to the mother’s care at the end of the access period.
D. That the question of Geraldine’s care be reviewed by the court in January, 2009.
31. Expert No. 7 recounts in detail a consultation he had with the mother on the 29th July, 2008, in which she had commenced by letting him know that she had withdrawn completely from trying to help with the children’s relationship with the father. He said:-
The mother noted that Edward’s nails were bitten right down and that he was now beginning to show some “delinquent signs” – i.e. sometimes locking himself in the bathroom and being very defiant at times.
Mother is very pleased about the involvement of the guardian ad litem. She believes the children should be allowed to do what they want to do.”
3. Sean, the mother’s partner.
4. Kathleen, the father’s partner.
5. Expert No. 7 on one occasion.
10. BLANK social worker HSE for location No. 2.
33. Expert No. 8 also had an interview with Sean, the partner of the mother. He described the children as lovely and painted a picture of unity between them. He believed that Wednesday’s accesses were outrageous, and that Edward is in an awful state about going and regularly wets the bed and explained that the mother gets tense also and has to cajole Edward, and has to tell him it will be worse if he does not go. He (Sean) thought access was better when all three children were together, but that access for Edward on the Wednesday was very bad and that he had to be forced to go. He said that each Wednesday “set him back a month”. He recalled that he had certain insights into these matters as he was separated himself and said that things would be better if there was flexibility. He had never forced his own children and thought it was better that way. He said that the father is never talked about except when it is time to go to access. He was asked if there were any photos of their Dad in the house and acknowledged that there were not and was dismissive about photos being taken on occasions such as sport events and concerts. He was being helpful and said that no one took photographs at these events; everybody is too busy cheering the children and watching them. He finished by saying that it would be impossible for the court to transfer Edward’s custody while a file on the father was with the DPP. Expert no.8 interviewed Kathleen (partner of the father) who informed her that she first met the children in 2005, and explained that the father had attended an MRCS course and that they had followed their advice on how she should be introduced to the children. She was still critical of expert No. 7 informing her not to attend the religious events and explained that she went to these events on her own was not supported by the father in this regard. She said that the father would accept the children exercising their own free will in what they were saying but that they had been brainwashed by the mother with negative propaganda, that deep down they loved their father and do not want him to give up on them. The mother did not wish expert No. 8 to contact the children’s school where the teachers there might have given her an insight into the children’s wellbeing. Expert No. 8 describes on pp. 15 – 19 of her report, meeting and dealing with the children in their home environment. Her home examination as described appears to have been technical and sympathetic. On the one hand it shows the children being apprehensive and worried to various degrees about access with their father, but on the other it is inconsistent in their account and biased towards adversely commenting on their father.
34. It is important to quote from the report of expert No. 8 in relation to interview in Barnardos sometime later:-
I noted that mother did not seek to reassure the children or encourage them to see me alone as we had agreed. I wondered with the children what had made them feel like this and mother offered that it was different the last time as they were in their own home.”
35. Having set out five main questions that the court might be faced with in assessing the children and what might be done to serve their interests, expert No. 8 goes on to conclude that she found no evidence during the course of her assessment to contradict the assessment of expert No. 7, that the three children are all alienated from their father. Particular aspects of their statements indicate that the alienated is now severe, although Edward’s capacity to still become distressed suggests that he is not so severely alienated as his sisters. She refers to an authority – Ellis – that to be given such a diagnosis children need to meet nine out of twelve criteria and it was her opinion that all three children fulfilled the criteria. She stated that Ellis educated us in her book of the significant research that has been undertaken into the plight of alienated children. All of this indicates that situations where alienation is chronic or severe or extremely resistant to change, family therapy has little impact and that contact for children where contact with one parent has all but stopped or is limited is extremely difficult to reinstate. She goes on then to examine in detail the options. One of these is suggested as the court accepting the assessment of chronic alienation and that Edward would transfer to the custody of his father. She did not favour this as Edward did not have any more than limited contact for the past eighteen months and would have lost his school, home, friends and the loss of his sisters to whom he was extremely close, and he himself had stated that he would kill himself if such a decision is made. She proceeds to conclude that for the court to make such a decision:-
Hearing of the Appeal
37. The mother, in response, addressed the Court saying that in her opinion there was no urgency in having the matter moved from the Circuit Court which, in essence, meant moving the hearing from the month of March to the month of January because the orders made by the Circuit Court were being complied with. She said that she would have personal difficulties coming to Dublin on short notice and that she would like to have adequate time to prepare the case. She took issue with Mr. McCarthy in relation to the need to change custody arrangements and pointed to the conclusions of expert No. 8 and the fact that one of the conclusions of that report was that the children had been interviewed by so many experts and there had been so much litigation that she did not think at this point it would really matter who their mother or father was. She stated that the children were now in “this sort of protective mode where they are going to protect their own house and their own grounds and they are absolutely expert at giving a polarised view of the mother as all good, and their father as all bad, so that no professional would be able to change their security”. At that point she said the children were settled in and were meeting their father every second weekend and that she saw that as a forum upon which further access could be built, and perhaps, the alienation might perhaps be reversed a little bit. When asked by me in a number of questions whether she considered that Edward, being eight years old, was young enough to get the benefit of changed arrangements she was non-committal but finally replied that the opinion of the guardian ad litem (expert No. 8) was that if the children got some respite (a rest) from all the litigation and all the problems then things might settle down. She was not laying the blame at anyone’s door, and that if they got a respite and a little bit of childhood they might as they grow older be able to see all sides and not be so dug in and entrenched in their own position. She stated that while Edward was eight, he was not like an eight year old when it comes to this. He was quite well able to speak his mind and manipulate, and forcing him to have a relationship with his father is doing more damage than good and that this had been said in the guardian ad litem’s report. Having considered the submissions of both parties in relation to the transfer, I held that I considered Edward’s tender age indicated that it was an appropriate case, having regard to the very litigious history of the case, and having regard to the prospect, albeit not very certain of the case getting some new dynamic from the High Court appeal, and by reason of the fact that the case might be longer than might normally be dealt with High Court sitting in Circuit, that the appeal should be transferred to Dublin.
38. In accordance with urgent arrangements made by the Court, with the cooperation of the parties, the full hearing of the appeal came on before the High Court in Dublin on the 22nd January, 2009. On this occasion counsel represented both parties with Ms. Michelle O’Neill, Junior Counsel., instructed by Mullaney’s Solicitors appearing for the father and Ms. Margaret Nerney S.C., with Ms. Dara Foynes instructed by Mullaney’s solicitors appearing for the mother. Expert No. 7 gave evidence and referred to his report. He stated that his assessment of the father left him in no doubt concerning his great love for and commitment to the three children. He stated that when he asked the mother why the children did not want to see their father she replied “I don’t really know” . In this regard expert no. 7 was of the opinion that for somebody of her (the mother’s) general insightfulness, it seemed to him to be a sort of an abandonment of an attempt to explain herself as to why the children were in the position they were in. It seemed strange to him because they had actually been through a lengthy process with other professionals as well and the mother had been engaged in a lengthy conflict, but he was prepared to concede that this may well have been simply due to fatigue of a lengthy conflict. He stated that by the time he became engaged in the case the process of alienation was quite significant even then, but that he was prepared to take a gamble that “if we got the parents to work together with me, we might improve the parental contact sufficiently where the situation would move for the children”. He stated that at the present time, in the face of fairly significant alienation, he was very much aware that Edward’s position, even from the beginning, was very different from the two other children. He stated that Edward was very positive about his father in the assessment of 2006, enjoyed going with him, and was able on individual conversation with expert No. 7 to differentiate his relationship with his father from his sisters relationship with their father. This indicated to expert No. 7 that the process (of alienation) with Edward had not gone that far. Expert No. 7 said that the mother had presented no difficulty for him in speaking to the children individually. He was not able to give any concluded view in relation to the father’s claim that the mother had stopped expert No. 6 from speaking to the children individually. This assertion, in any event, was hotly contested by Ms. Nerney on her instructions from the mother. When asked why he had put in his report in relation to the description of how Edward goes to his father “still”, he explained that he used the word “as the word had stuck out in conversation with him and that he thought in some sense that there was some wonderment on the mother’s part that Edward actually was continuing to go even though his sister’s were not”. He stated that in his initial interviews with the mother he concluded that she had a very significant amount of antipathy towards the father, she had felt that the father had an extra marital affair and that the father had never acknowledged that. He stated that the father always maintained there was no such affair. Expert no.7 stated that there was a bit of the mother that wanted things to get better (in terms of access). He found from a consultation with the father and Edward together that the immediacy of Edward linking to his father had been verified and that there was no problem for him in that context. He stated that he subsequently observed – totally by chance on two occasions, once looking at a distance at a football match, and on another occasion when he was walking with his family on a promenade (on both occasions in location No.1) where he saw the father and Edward with father’s partner (Kathleen) on the promenade some distance ahead. On both occasions he noticed how easily and engaged a kind of relationship Edward had with his father. It was relaxed and normal and there did not seem to be anything problematic about it. He stated in relation to the incidents complained of by the children against their father that if these incidents are not contextualised by their mother by saying to the children “well you know, yes, he did that. But your father is not all bad you know. He does these good things as well”, the single incident can grow and grow and it can become the template for imagining other things about their father. He stated that when Edward began to refuse to see his Dad, the move of Edward to reside with his father should have been made. This was his view in hindsight. He informed the mother that the matter of Edward falling away from his father should be addressed and his attempt to get an appointment with her was met with dismissiveness. The move really should have been done in summer of 2008, but it was impossible to see the mother until autumn. He continued:-
39. The father gave evidence that he had done a parenting course. He had been happy with expert No. 3’s report (M.M.) in relation to access. He gave extensive evidence of the relationship and the breakdown thereof and dealt with the reports of expert No. 5 (G.). He dealt with the instance of where he had to apply to court to bring the children on holidays and that the mother had set out a list of incidents prior to the couple’s final separation that was supposed to give examples of the father’s violent behaviour and “violent nature” in opposition to the children going on holiday. Eventually he was given permission to bring the children on that holiday abroad two days before planned departure. Ms. Nerney interrupted this historical examination of the relationship stating that time had proven beneficial and that it was her case that things were slowly incrementally improving. Ms. Nerney indicated to the court that in view of the improving situation she would wish the High Court to hold seisen of the case for two or three months to see how things unfold because she hoped that the court would be satisfied there was an enormous degree of goodwill and anxiety on the part of the mother and that she wanted a restoration of good relations insofar it was possible with the father, and that she wanted it as much for her own sake as anything else. She was concerned that the examination of the father would get bogged down in the historical aspects and that the parties should be focusing on the recent reports of experts No. 7 and 8. The father complained that the drop offs were curt and anonymous and that the children would be uncommunicative before enduring the film. He also stated that when the film was over Natasha would call “Mummy its over will you collect us”, and there would be a subsequent telephone conversation and then the mother would have them walk up the street and she would meet them halfway up the road. The father said that the children would naturally want to have a cake or something after the film and when he examined these incidences he would get a text back from the mother saying “not interested children don’t want to go to tea, don’t want to go with you to tea”. He said that he saw his children every second week but it is basically at the stage that while he sees them and nothing has fallen off – “no hands have fallen off” and he is positive to them. He accepted that they are in a difficult situation and he was of the view that that situation was not getting them anywhere but that he was happy to see them. He stated that there was a time when Edward could tell him about what he would be doing on Sundays as in rugby on a Sunday morning in hail, rain or snow, but then he was not allowed to do that anymore and that he would hardly speak to him. He could not talk freely to his father and that he has reached a stage where he has to be careful what he does or someone will go back and tell the mother. He complained that he did not get any feedback in relation to extra curricular activities. He does not get reports from the school or from the teachers and complained that he was cut off from many things. When asked if he had burned his boats with the children’s school he disagreed. He stated that if Edward was transferred into his primary custody that it would not be easy for Edward or for anyone, but he believed it was workable and manageable but was not under any illusions that it was going to be a piece of cake. He stated that now he had job working out of location No. 1 and would be in location No.1 in relation to that work about four days a week. As he worked three full days and two half days, he could rearrange his work schedule around whatever his access schedule would be. He could rearrange his work to facilitate access with Edward and that he had two areas that could sustain him if he did not have to work in location No. 1 anymore. There was a residence in the vicinity of location No. 2 where he could live to facilitate the handover of residence of Edward. He described how he had endeavoured to follow expert No. 7’s advice in relation to taking initiatives to ensure good communication with the children. When cross examined, Ms. Nerney put to him that his record to date was far from the “low key” approach which he had advocated in his direct evidence, and she instanced the upsetting events at the religious ceremonies and parish and school related events. Ms. Nerney listed many of these events and the father did not agree that they were necessarily upsetting or inappropriately managed and defended himself in his evidence as best he could. He discussed domestic arrangements for the prospective change of residence for Edward. Ms. Nerney questioned the father about the conclusion of expert No. 8 that Edward was not emotionally equipped at this time in his life to be taken from his mother and two sisters who formed a natural and very closely linked unit. He stated that there was an unwritten ethos from Barnardos that they do not split families “that would be normal for them”. He complained there would be no communication between himself and the mother on many occasions and indicated that far from having a designated household mobile for which he had been given a number, the mother would use four different mobiles to communicate with him, all different. Even if he responds to all three he gets a communication saying “you are not responding”, and if he responds to one phone he is told that it is Natasha’s phone so the situation is very clouded. When Ms. Nerney suggested that bowling might be more interactive than cinema at access times, he stated that he was encouraging bowling but that the mother encouraged cinema and just did not want to go bowling. He complained that money matters were brought into discussion when the children were being talked about between the father and mother. He said that there was difficulty with Sean, who had on occasions displayed discourtesy at handover. The father mentioned, in particular, that on occasions when Sean would come to the father’s house to collect Edward he would speed up the wheels of his car so that the dust was flying and whiz off. The father found that to be intimidating, a put down and threatening, but that all the time he kept calm. Ms. Nerney reminded the father that Sean was a person directed by Judge Reynolds as an independent and dispassionate person to facilitate access and the father said that some of Judge Reynolds ideas had helped and some did not help over the years. At this stage I indicated and ruled that both Sean and Kathleen were generally outside the loop in this case and that they would most likely adapt to whatever arrangement was ordered by the Court, and that the main issue concerned the father and mother. The father stated that when Judge Reynolds had suggested that current access would take place for six hours, the mother had said that’s an awful long time, and that he had then agreed to three hours. He had suggested bowling but she insisted on cinema, he then told her “we will go to the cinema and maybe do a pizza afterwards” and her reply was “no, no, no pizza”. He said the three hours then reduced down to one and a half hours and that from time to time it was even less because the children are in the cinema row in front of him and Natasha’s phone rings and all the children pack up and leave. Ms. Nerney put it to him that the mother would say that she never phoned Natasha or any of the children during their access with him and that, in fact, they had to come up the town when she had been in the hairdresser, upset, because they wanted to get away.
40. At the conclusion of the father’s evidence, expert No. 7 returned to give evidence in relation to his last report. He stated that that report was hastily complied but that things had developed whereby a decision would have to be made as to the choice between the option of not taking any action and suspending access or moving Edward to the custody of his father. He explained that he understood alienation not as an event but as a process that happens over time and that sometimes people participate in an alienating process through a lack of action, for example, he believed that alienation had occurred here through lack of action for the most part. He said he did not believe that the mother ever said to the children “don’t go to your father, I don’t want you to go to your father”. He considered that there was a tolerance for negativity to the father in terms of feeling, in terms of disposition and intolerance and acceptance of that. In other words, it was more through a lack of taking up parental responsibility to challenge that because he thought “she could not challenge it in her herself”. He said that the mother, in terms of her own mind and thinking, wanted a resolution that she wanted things to be different at one level, but that she found herself unable to take the steps to make this happen. When pressed by Ms. Nerney on whether he thought there was a lack of will on the part of the mother to promote a relationship between the children with the father, he said that he was actually doubtful and that he thought there was some ambivalence about it. He said that in some ways there was a lack of emotional capacity on the part of the mother and that one part of the mother – perhaps the biggest part of her- just wanted to get the father out of the way so that she could get on and bring up the children in a way that she felt was right. When asked if he had observed the same attitude on the part of the father towards the mother, he stated that the father sometimes masked it more and that, of course, he was on the outside position but within the father’s own views he was terribly hostile really. There was mutual hostility but the styles of both parents with it were a bit different. He confirmed his conclusion in his report that the father would do nothing but support the continuation of Edward’s relationship with his mother. He confirmed that it would be necessary for Edward to move school as he was somewhat intertwined with the mother in his existing school. He stated that while the mother had used the word delinquent in connection with some signs shown by the son, he did not agree that the son would go wild in another school. Expert No. 7 indicated that Edward was not likely to lose the run of himself in a new school. He was a much more quiet boy in many ways – anxious in the vicinity of location No. 2 – he had a lot of other sporting activities in that local activity. He had friends who would be going to that school. In relation to the incident on Saturday the 21st June, he indicated that he had asked each of the parents about that but did not make any concluding report for the Court at that stage because Judge Reynolds was in the midst of trying to manage the situation. He thought his best contribution was to be just another voice of investigation for the Court and not to burden the Court at that point with more recommendations. The incident on the 21st June did not surprise him as no outside professional like expert No. 8 or himself had recommended that kind of approach. He elaborated that it did not surprise him because the access recommendations launched the children into a situation together with their father where (all three children) were left with all of these bitter resentful hateful feelings towards their father, and here they would kind of present together to his house, so it was kind of inevitable that it something like this would happen. The recommendation (to the court)(Circuit) was trying to still reach towards a middle ground in trying to get a situation where they could build up access again and get to the point where there would be reasonable access for Edward. At that point everyone accepted in one way that the girls were not going to make any major move with respect to access. He stated that he had disappointed the mother greatly by taking up the position he had taken with the Court in relation to Edward. Expert No. 7 was dismissive of the significance of the injuries, if any, suffered by the children in the 21st June incident. He said that he had not seen any physical injuries nor was there any medical report. He stated there was still work to be done if the Court made an order changing the primary care of Edward to his father. A period of time would be necessary to see that the transition had happened satisfactorily and to take care to some degree of Edward’s anxieties in the transition as he would naturally have anxieties and worry about his rejection by his mother and his siblings. He believed that the mother would work with the situation because her relationship with Edward was much too important to her. The sisters would do likewise because they are a strong group and they will not be threatened by the new move. Expert No. 7 was challenged by Ms. Nerney in relation to Edward’s ability to make the transition. He insisted that he (Edward) would be better equipped to make the transition now that he would have the involvement of both parents as a support. He was asked what weight he attached to the significance of the articulation by an eight year old of feelings about jumping out an upstairs window or putting a knife in his neck. He said that these feelings articulated by Edward should be taken as a strong statement of the fact that “I will absolutely not do this and I am prepared to go to the ultimate and I am prepared to take my own life”. Such a statement is a power move on the part of the boy. He was no longer now saying “the father will beat me to death”, he was now saying “I will take my own life”. It was his way of exercising some power on the situation as well as his way of signalling how desperate he might feel as well. He stated that Edward’s pattern had been much more prone to anxiety like the shoulder twitching, the physical manifestations rather than acting out. So, the taking of his own life required action and aggression towards the self. His own pattern towards himself would be much more one of anxiety as expert No. 7 had known him. Hence, at the time he was not at all against the idea of him “seeing somebody (an expert)”. When he heard about this development at the time he offered to see Edward straightaway but that did not happen as his offer to see him was not acceptable to the mother. When queried by Ms. Nerney in relation to the seriousness of the threat, expert No. 7 said that the refusal by the mother of his offer to see Edward in the context of his suicide threat would say something to him about the mother’s evaluation of the meaning of the statements involving the suicide threat and that she was not concerned about it as a real suicide gesture. He said that the context for parents has changed because of things like Kurt Cobain and most parents nowadays get extraordinarily anxious if the child, either young people or adolescents, make some gesture or statement about possible suicide. Parents are then beating down the door of their child, who is then seen and evaluated by some mental health professional. Expert no. 7 said that if there is an evaluation there it would be important that he should have been sent a copy, but if there is not, then he thought that the non-obtainment of such an evaluation has to be evaluated. His knowledge of the family indicated that the matter is more likely to be another move in the alienating process in which the child, Edward, is constricted, but that he thought that the mother’s own evaluation was that he was unlikely to do it ( commit suicide) and that would be his feeling as well. He stated, however, that the problem was that Edward was not getting the assistance he needed and that during his time meeting with the child and the family he had great difficulty in getting the mother to bring Edward to see him. The height of that difficulty was in the summer of 2007 where access had broken down. Edward was in difficulty, there were some symptoms at the time, yet holidays and other things were much more important (to the mother) than securing an up to date evaluation of Edward. In his role as a professional under s. 47, expert No. 7 said that he began to read these things and tried to communicate his judgment about them. When I asked about the position in relation to a possible evaluation, Ms. Nerney’s reply was that on foot of the examination and report furnished by expert No. 7 in May, 2008 which sets out the opinion that Edward should be transferred to his father, the mother immediately went to court and asked for a guardian ad litem (expert No. 8) to be appointed. When asked by Ms. Nerney had the father ever been an initiator or instigator or any mediation talks or formal talks to try to broker some modus vivendi in terms of access and improving the access regime, expert No. 7 said that the father always showed a disposition in work with him as mediating and that he found his disposition very positive. He said that for all the difficulty, he sometimes observed between the mother and father meeting there could be a warm relationship between them, and they could open up with each other. He said that at times of communions and confirmations one would expect that parents would get together to make a go of these situations and that the mother might suggest to the children “Dad’s coming to the First Communion, ignore him but he has got to be there, he is your father, lets get on with it”, and that the mother might say to the father, “look, stay at a distance, don’t do that, this is what the kids can tolerate, work with me on this and get down to it”. He stated that this kind of approach was never really on offer from the mother. The mother was always about “the children want this” or “the children want that” and so, in that sense, the mother was not able to take what expert No. 7 called a more parental position. Ms. Nerney, referring to the chinks of warmth, said that the mother’s evidence would be that far from being discouraging in any pro-active part, she encouraged the process with the children and that she had cooperated and been active and pro-active to the point of annoying and antagonising her children in terms of access and in terms of fostering a relationship. Expert No. 7 replied that in his experience the mother’s performance in that regard “upped considerably” at the point of court contact. He stated that between the intermitted outbursts of relative affection and the toxicity, the toxicity wins hands down “there is 98% toxicity and that the time had come for decisions to be made in relation to the two options of total care by mother or shared care between father and mother for Edward”. When it was put to him that it was a far more settled, stable, regular and perhaps mundane and ordinary regime compared with what the Court might order (in the case of a transfer of Edward), Expert No. 7 responded as follows:-
42. The hearing for the 22nd January, 2009, concluded without any decisions and it was the intention of the parties to obtain a further date for hearing of the balance of the evidence.
43. The hearing resumed on 2nd March, 2009 and was adjourned for negotiations between the father and mother. Sometime later Ms. Nerney informed the Court that access arrangements for all three children had been agreed up to 20th April after which date a further hearing date might be arranged. Both parties gave a solemn undertaking to the Court on oath in the following terms:
Holiday by the Sea
Resumption of Hearing
47. Expert No. 7 explained this control in the following terms: “I believe, for example, that the mother is capable of giving instructions and directions to the children that will be adhered to, and she is also capable of giving unsuccessful instructions to the children, (and I was subject to one of them in the context of this review).” He explained how these “unsuccessful” instructions arose in the context of the review by describing how the children explained, being led by Edward – “We are not talking alone. We are only going together. We will not speak with you on our own. We will only go as a group. We’re a group.” I reminded expert No. 7 that as a judge who regularly spoke to children I found that sometimes children would opt to see me during what are described as “light touch” interviews in twos or even threes and that it was a common enough presentation which would not worry me unduly unless there were other factors presenting which would indicate that the Court would be best refer the matter for a section 47 report from a child expert - the situation was not one where Edward was saying to him “I’m afraid to come in on my own, I need my older sisters with me”. He replied that this was a group presentation. They were setting down terms on which the review was going to happen. It was a much different situation from the usual situation of shyness of younger children.
48. I asked expert No. 7 would he not make allowance for the fact that the children were “battle hardened” in relation to interviews. He replied that the children were more than half trained and the point was “why are they presenting in this way?” He stated that he saw a contradiction between the mother claiming on the one hand that she is absolutely certain that her children are getting beaten and on the other hand asking the Court to allow her the opportunity just to let the children build up the relationship again with the father so that it can gradually build up and that everything will be O.K. He dramatised this by asking the rhetorical question that if the mother was so convinced that father is violent, how did that lead her to take the position that if it is left to her she will encourage a build up of the relationship between the children and their father. He concluded that he did not actually believe that she would do this unless she is told she had to (by the Court), “and she did do it the last time”. (March 2009 after undertaking to the Court). He added that there was further information which led him to change his mind on his basic position taken up at the hearing in January 2009 as he found during long interviews with both the father and mother immediately prior to this hearing. Hence that they could put and get working a proper access relationship and he believed that the mother could re-motivate the children. He went on to say that he did not get the sense that the children were afraid. He stated “There’s a battle and a game going on here, it’s very destructive for them, but they’re highly involved in it and when I hear the reports of access from the father, I hear theories where things went quite normally and there was a whole level of normality about saying some parts of the access - and it actually was in danger of taking root and working quite well”. He stated that the mother did not want Edward to be transferred to father’s primary care and that he did not really believe that if Edward was to be transferred away from the two sisters in primary care that “he should take the three children”. He said that having discussed matters with her there was still anger for the mother in relation to the father that goes back pre-separation. He referred to his report and stated that she told him that she wanted to tell him about many more stories of aggression and violence pre-separation that she did not bring up with him in the original section 47 report and that she now had the capacity to tell this story because she had been in counselling herself for quite a while and that she was able to tell the story. She told him that the father is a very violent man and gave seven examples. I asked expert No. 7 was his suggestion that there was some dominion over her, such as might arise in criminal prosecution delay cases where complainants don’t complaint about various criminal matters for a long number of years as highlighted by experts in that type of case. I expressed my utter incredulity in relation to this matter that the wife was suffering from this and expert No. 7 responded: “Yes, I find it tricky, I have to say, because this couple are separated quite a number of years now. We’re back to was it 2002? So we’re sort of seven years on. And there’s been a lot of, you know, life has moved on.” When asked if she had ample opportunities to give descriptions of violence to him in meetings for prior section 47 reports he said that there were big differences in relation to aggression (which was denied by the father) and about him having an affair (which was also denied by him). He stated that when having a conversation with the children about allegations of violence by the father and checking it with the father, the mother intervened and “rounded” upon the father about telling the truth and attacked him in front of the children. Expert No. 7 added that when children of divorced parents get to be young adults one of the things that “drives them crazy about the past, is being wound into negative stories about the non-custodial parent. That’s what does their head in ultimately, because they get cut off from a relationship and they get wound into a negative view of the only father they have. The thing that really troubles me going about this case is that I have not yet – even though I have been involved for a long time – not seen any evidence really that convince me that this man has been aggressive or violent with his children. He has tried to be nurturing and caring and a father in his own way, it’s not the way that the mother would like him to be a father, but in his own way …. and I’m hearing the same kind of thing from social workers and I’m getting hints of the same thing from the police”. He characterised them as “mother’s little army” – that when she goes into battle with the father, as in a consultation with father, mother and the children “then they become her little army and they have been prepared for this over quite a long time”.
49. Ms. O’Neill, counsel, asked expert No. 7 if he would be surprised to believe that mother was encouraging the children to use her maiden name instead of their father’s name, and he stated that he was not a bit surprised as he had found out from inquiries at the station near location No. 2 that Edward’s surname had been noted as his mother’s and not his father’s or any combination of the two. It was part of the mother’s non-rational “bit” which is more emotional, hurt, angry and really wants to eclipse the father fully out of the situation. Expert No. 7 considered that Kathleen had a kind of angry mentality around the mother and that she gets overly involved in places she should not, as a partner. She went to the HSE about one of the children and made a report to the HSE saying that she was a danger to future society. He was of opinion that this was really “over the top and it is not only over the top, it is unhelpfully interfering in matters that should be left between the mother and the father”. He considered that if left to themselves, both the mother and father would have been moderate in relation to an egregious incident involving the scraping of a car but because of Kathleen’s position the mother was pushed into saying “my daughter did not do this” when it was quite obvious she had. Notwithstanding his concerns he agreed that Kathleen could not be “airbrushed” out forever.
50. He agreed that the father would cooperate with whatever access arrangements were made by the Court and the success of court solutions would largely depend on the mother’s capacity and willingness to encourage and foster a schedule access. It would depend on the mother’s willingness to begin to modify the belief in the children that their father is a dangerous man whom they should fear. He considered that the mother had the will to do this, but wondered whether her will falters from time to time. He pointed out that she had the will to do this because she proved earlier in the year that all the children would go back to their father for access and get on after a fashion with their father. I pressed expert No. 7 to say whether this turnabout in the behaviour of the children about going to access with the father after the March settlement represented a miracle or Trojan horse operation organised by their mother. Expert No. 7 did not quite agree with the Trojan horse hypothesis but said that if it were to be take as a form of analysis that the Trojan horse might have happened with the entry of Natasha insofar as she seems to have “united the troops”. There seemed to have been plans made in the final scene of violence where the mobile phone was used to take a video, but he said that their seemed to have been signs that Geraldine was actually enjoying the access and that the mother indicated during the course of the access that she too really needed a break as well from the children.
Ambivalence of Mother
52. Expert No. 7 stated that the mother’s refusal to allow the children to be consulted individually amounted to control detrimental to the children and that he saw with a consultation with the whole family she turned into battle mode with the father in front of the children, and that they had been prepared for this over quite a long time. This was very worrying. Her use of her maiden name only for the children indicated to him that she wanted to eclipse the father out of the situation except for lunch once a month.
53. He stated that neither he nor anyone else would wish to threaten parents but the threat of something, in this case the removal of a child to the custody of the father, may be substantially what actually motivates people to do something and this threat would appeal to the mother’s rational side. Expert No. 7 agreed that if his proposals for access with primary care for mother up to January, 2010 did not work, then Edward would have to be placed in the primary care of his father. He said that because the Court has necessary delays there might be a trigger mechanism which would signal such a change before that time. He discussed settling in periods for school and he suggested that it might be better that Edward would go to school in location No. 1 than in the region of location No.2. He was of the opinion that if Edward was transferred and settled that access for Geraldine would come easier. He thought that the holiday by the sea was a really good idea but wondered whether if Geraldine had been involved in that as well, would the holiday by the sea have happened. He was not sure but he just wondered about that. He stated that he did not really get a chance to talk about the holiday by the sea with either Edward or Geraldine. He found out from the father that they both said that it did not happen and that Edward would not go. The father had told him that this morning he had actually gone to try and have a discussion with Edward about why he would not go on this holiday and there was a problem about even having an individualised discussion with Edward about why he would not come on the holiday by the sea, caused by the mother. He said that Edward is not going on holiday and his view was “a performance and it’s a performance with a particular audience and the audience is the mother…I think if we were to put more thinking into how Edward would have gone on that holiday, when and how and from what place, it might – it might, I am not saying it would necessarily absolutely but it might have been more possible for him to make a transfer to come into the car with his father if his mother was not around”. He conceded that he might have been overly optimistic about that.
How to Effect a Transfer
Alienation – Long Term Effects
Timing of Transfer
Cross Examination of Expert No. 7 by the Mother
59. The mother queried expert No. 7 in relation to how he was contacted by a social worker from the hospital outside the Health Board area that treated the children. He replied that he imagined that the information would have been transferred to a social worker to pick up on the next day and deal with the HSE because on their “Children First Guidelines” the hospital would be bound to have some contact and the probability was that the contact was through the medical social worker attached to that hospital. The mother queried and sought clarification of the piece where he said “the mother took the child away before the treatment was finished”, and expert No. 7 explained that social worker S told him that the professional who made the report then was very concerned about the fact that a small treatment was proposed for the child and, in advance of that being administered, that the mother took the child away from the hospital and that was noted to them. This was what social worker S. was saying as a result from communications from the hospital outside the Health Board area. The mother put it to expert No. 7 and the court that they did not leave the hospital before the treatment was finished and that as a matter of fact on the following Monday, or perhaps Wednesday (she forgot) they called back for a follow up appointment and that there was no question of them leaving before the treatment was completed. She again insisted that she had no contact with any social worker in the hospital outside the Health Board at all that night. When pressed by the mother that it was a very strange statement for people to have made considering the fact that first of all it did not happen, second, that they returned to the follow up treatment, the expert agreed that it was a very strange report to make. The mother took issue with expert No. 7’s belief that the father was not a violent man. He replied by saying that while there may have been exchanges that took place, he was very, very unconvinced by the children’s reports to him that they had been beaten every day by the father or had been starved. The way they spoke to him about it really did not ring true for him. He had listened to many children’s stories over the years where they had been subject to inappropriate aggression by fathers or mothers and their accounts did not ring true to him as statements of real events. He conceded that he might be wrong and always professionals can be wrong and mistaken in their judgment, but he insisted that that was his clinical hunch. She asked him whether there was a reluctance in society for adults to face up to the fact that a parent might actually assault their children and that it would be easier for a parent to say “it did not happen”. He stated that over the last 10 to 15 years, where for lots of good reasons, people have often become overly reactive to children, that children can begin to utilise allegations for their own and for other peoples benefits and sometimes children are highly organised in doing that, even when there is absolutely no reality to the event (that is alleged) occurred. He stated that he lived through the whole spectrum of stages of Irish society over the last 35 to 40 years in a whole mix of social work and as a society we were now at a stage where there was a lot of awareness about the dangers of inappropriate aggressions by parents or others towards children. He continued “but we also have to keep in mind a critical perspective and listen carefully and realise that children are part of that wave, parents are part of that wave, and that is an impetus that can be used for more than one goal”. She asked would there be a distinction between the attitude of middle class people compared with lower class dysfunctional families and he said that he would be listening to children and parents of whatever social class they might be and that, in his experience, there has been aggression in all social classes between parents and children. He did agree that in the past there had been a reluctance sometimes to accept that there was abuse in upper class or upper middle class families, but he excepted himself from that tendency. She pressed expert No. 7 with the question of how he reconciles the fact that she had three very well adjusted children with proven achievement in their school reports with the fact that they have all these difficulties going on within the four walls of the house of their father. He said that he did not agree with her about the reality that the children were fairly well adjusted, that as he had said before they had already been hurt and held back by their lack of a relationship with the father and that they had been to a considerable degree wound into the mother’s view of their father and not in position to make their own independent judgment. He said that a prime example where the children were not in a position to make their own independent judgment, was where the children united in refusing to talk to him. He suggested a well adjusted child in that situation would have had permission from the mother and said “of course I will talk to expert No. 7”. She suggested to him that he had become too close to the case because she had great difficulty in taking the children up to him because they were very defensive based on what has happened to them in the past. She asked “would it be a fair comment to say that perhaps your interpretation and your perception of the children in your own might be an awful lot different than some other person who is seeing them, perhaps, for the first time?” He replied “absolutely, they might well indeed be different. And I have to say that, you know 80, 90% of the time when I am involved in family law matters, it is very often about listening carefully to the children, trying to help the court to understand the voice of the children and to make moves in accordance with the children’s wishes and desires. Now, your situation is different and I was not the first professional who had become involved. And there have been a series of people involved before that and I said to the court that I though that in fact, that it was not helpful to have series of professionals involved. So when you say that I have become too close to the case, I want to ask you what you mean by that? I think I am actually not close enough to the case, because the children are actually in this situation where you meet children who have been, in my view, quite alienated from their father and if the professional then provides a report to the Court and recommends something that the children – opposite to what the children say they want, those children will naturally, when they come back say “you did not listen to us”…but my job on behalf of the Court is to understand the whole situation and provide a view and recommendation about what I think is in the children’s interest in terms of development as a whole. Not just to say that “this is what the children say they want” and ask the court to, enact what they want.
60. The expert continued as follows; “Because I am saying what the children say they want is very different from sometimes from what their actual needs are. And one of the things that I think is really clear to me that their need for their father and their desire and longing for their father has been suppressed, it has been pushed down and has been pushed down by this other negative view of their father as somebody who they are afraid of. So currently, they are in a position where they have a longing for something from their father that is normal and ordinary and good and that has been pushed aside by this fear that has been generated. Now they are playing their part in this too, but I am going to say that I have very significant doubt that your ex-partner is being aggressive currently to your children. I have heard nothing from other professionals that has really said anything different.” The mother in her next question disagreed and said that while expert No. 5 could have had doubts, she was the mother and saw things on the ground and that when Edward ran out of the room (the waiting room of expert No. 7) to run back to her did he think it was anger or could he explain was it fear. Expert No. 7 replied:-
62. The next day the mother commenced her questions by returning to expert No. 7 relaying from the garda sergeant in the garda station close to location No. 2 that he would not give credence to what the young boy said and she put it to him that that sergeant denied to her when she spoke to her “less than two hours ago” that she made any comment whatsoever regarding the credibility of the children and that she spoke to social worker S on the telephone the previous night and questioned if the social worker S gave expert No. 7 the authority to use whatever evidence she “gave him” in court. I inquired whether the Court in exercise of its duty under the Constitution in determining the dispute between herself and the father in relation to custody of their child is dependent on public officials giving their permission to a s. 47 reporter sent by the Court to inquire of them what the position is or whether the Court would have to look for permission to send a subpoena as well. She replied that she spoke to these two people “this morning” and “they are very upset”. “The HSE told me that she is getting her own legal team on board this morning and that they will be looking for the court transcript. And really and truly, I do agree that these people might be to come to court and give their evidence, because I was presented in a particular light yesterday and it is not a true light.” She stated that she now had a question mark over expert No. 7’s motivation over his statements of the previous day. It was not true that she walked out of the hospital outside the health board area. She said she always went to that hospital and what was presented by expert No. 7 emanating from his alleged statements from the garda sergeant and the social worker S was “damning evidence on her character”. Ms. O’Neill protested that the Court was entitled to rely on the report of expert No. 7 which she “has always supported and cooperated with”. At this juncture, Ms. O’Neill stated that her solicitor had obtained notes from the hospital outside the health board area containing details in relation to the attendance of the Geraldine and the treatment of Geraldine and that there were details evident in those notes relating to matters that expert No. 7 gave evidence about on the previous day and that had been disputed by mother. After considerable protest by Ms. O’Neill that to introduce this side issue in relation to what the sergeant and the social worker said to expert No. 7 or the mother would be to hijack the hearing into an investigation regarding an allegation and complaint which was unproven insofar as the father was concerned, I ruled that notwithstanding Ms. O’Neill’s protests, if the mother wanted the statements of the sergeant and/or the social worker to be tested in regard to the form presented by expert No. 7 she was at liberty to have them summoned as witnesses but that the parties should be aware of the cost implications of such procedure. Expert No. 7 had offered to reply to this discussion as it had arisen in a question to him by suggesting to the mother that she could recall in the context of their consultation that expert No. 7 actually said to her and to the father that he would be trying to make contact with the gardaí in the station in the vicinity of location No. 2 and with social worker S and that she knew that he hoped in advance of writing the report to be able to make contact with these two officials but that he was not able to start the review due to difficulties fixing appointments with her and ultimately the refusal by her to allow the children to be spoken to individually by the social worker or to speak to expert No. 7 individually. On the basis that the HSE (represented by social worker S) felt there was no demonstrable evidence that there was any real risk from the father to the children they felt okay about planning no further involvement. She finally stated that the health board were not conducting their investigation because they were awaiting the results of the garda investigation. She then went on to describe the picture of an unnamed social worker supposedly saying that she left the hospital outside the health board area before the treatment was completed and asked expert No. 7 did he consider that the word of a woman whose name he did not know over a telephone call as evidence and did he think that is a professional thing to do. Expert No. 7 replied that he was merely providing the Court with the details of a conversation he had with a professional. That was the information that was provided to him in the course of a conversation with social worker S. He stated that he did not tell the Court that he had contact with the hospital outside the health board area but that it would appear from his conversation with social worker S that the hospital outside the health board area felt obliged to make contact with the HSE. He stated that whether that was factually correct or not, he did not know. Although he was not in a position to verify that, he did feel it was his obligation under the terms of his appointment to provide whatever information he had to the Court. She put it to him that as he was a professional, and she was a professional too, she found it unprofessional that the comments arising from the garda sergeant and social worker S were made the previous day in open court regarding her parenthood without evidence and put it to him that the evidence he gave to the Court was incorrect. Expert No. 7 asked the mother to clarify whether she was saying that expert No. 7 falsified the material of the conversation with the sergeant and social worker in order to damn her character in front of the Court. In response she replied “well, expert No. 7, you know, I am not going to comment on that”. When reminded by the Court that she just cannot pick and choose in relation to the matter and that expert No. 7 wanted to know what was the question and that she should clarify that she was claiming expert No. 7 purposely falsified the evidence to the Court because she was not privy to the phone calls. All she could say is that there was one version given to the Court yesterday and then she was told a different version “this morning”. She was not in a position to make a judgment on that. She would have to await that at a court hearing. The Court pressed the mother in relation to what exactly her allegations were and ultimately she responded after some hesitations as follows:-
68. The mother, in a very long question, reminded Expert No. 7 of the difficulties involving the children and the Sacraments and the introduction of Kathleen into the situation, and that she recalled talking to Expert No. 7 about “the damage that the children had shipped”. She put it to him that she had made arrangements for summer camp for the children when he suggested an immediate consultation, and she was not willing to pull the children from the summer camp, for which she had paid. She said that Expert No. 7 told her that she had taken the children to Florida and that they had enough (holidays); that was the first time that she felt her relationship with Expert No. 7, if you like, was breaking down, and that she also had told the children before that that they were not going to see Expert No. 7 until the autumn, and here was a sudden change.She felt he was putting the needs of the father first and for these children, who had been through so much, it did not really matter whether they had they had their summer camp, or whatever.
69. Expert No. 7 stated that she had triggered his memory and that he was very concerned about her emotional wellbeing and was very concerned about the whole series of events around the First Communion/Confirmation. As access for Edward had broken down, he recalled calling her and saying, “look, there are changed circumstances, things have broken down, the plans for access and holidays and so on between father and son here have broken down, therefore we need to address changed circumstances”.
70. The mother suggested to Expert No. 7 that he had changed his mind and did he recall doing that. He replied that changed circumstances cause people to make new judgments and that they have to evolve their understanding and evolve their action. If he said that they were not going to meet for three months and then she tells him something, or he hears something terrible has happened, from his professional view, he though it was important that they address the breakdown of access and not just let it lie over the whole summer period. He would have been more than happy if access had continued and he would have honoured that, but he was saying was that if someone makes a deal with you and the circumstances change that are pertinent to that deal, then it is reasonable to expect people to think again, talk again, negotiate again, to try to address it.
71. Expert No. 7 said that he put the children before the mother. The mother stated that she did not feel able to go to the children and say that Expert No. 7 had changed his mind and that he wanted them to come back up again and see him. He agreed that there was a letter somewhere indicating that he had changed his mind. She asked him if he agreed that it was not so much that she was opposing him, but that she was surprised at his tone to her, considering he knew that, emotionally, the family were barely surviving at that time. He tried to say that she was not so threatened that she was not able to make very good negotiations about Kathleen’s positioning in different ceremonies and that she was able to get the agreement of Expert No. 7 in relation to that positioning, notwithstanding the father’s disagreement, and that he was persuaded, notwithstanding his great misgivings and his very rare recommendation, that a parent be absent from significant events for the children.
72. There followed an exchange between the mother and Expert No. 7 in relation to Kathleen interfering with the ceremonies and “moving in” on the children, including writing a letter to the HSE complaining that Natasha is a delinquent with the mother suggesting that the father supported Kathleen all the way in relation to these matters, leading to a strong confrontation between the mother and Kathleen, with both of them taking extreme positions around the allegations of Natasha’s delinquency.
73. Expert No. 7 said that he wondered whether the extremity of one position called forth the extremity of another, rather than having the father and mother sort out matters without the involvement of Kathleen. He agreed, when asked by me, that what Kathleen did, in giving this report in the future of Irish society to the HSE was “absolutely over the top”, and he further stated that it was not in the children’s interest, nor in the father’s interest, and it may well have been that Kathleen was not well at this time.
74. From his knowledge, he considered that Kathleen had a worrying sense of her own entitlement and principled position. He agreed that in the upset position which the mother found herself in, that she would naturally have made the response she did to Kathleen - what else could she do but defend her daughter. But the fact was that the mother had acknowledged to the father that Natasha had done some wrong but that in front of Kathleen’s behaviour, that judgment changed.
75. Expert No. 7 agreed that it was unfortunate for Kathleen’s relationship with Natasha because the history of the incident centred around Kathleen giving Natasha a loan of her computer, which was a nice gesture accepted by Natasha. Unfortunately, Natasha got some material which Kathleen would not have wanted her to get into, and Kathleen ended up blaming Natasha for that, rather than saying, “well, look, give it back to me, that material, I should not have made this available to you in this way” and taken responsibility herself for it.
76. The mother then digressed in her questioning to query Expert No. 7 as to whether what Natasha saw on Kathleen’s computer would be damaging to her, and eventually she was reminded by the Court that she was wasting the Court’s time in relation to this matter, as all children would pry into adults’ computers if they had an opportunity, and that the material, however embarrassing to Kathleen, including alleged strategies for dealing with the case, was not a serious matter to be considered by the Court.
77. The mother then asked Expert No. 7 whether there was a contradiction between the father’s and children’s versions of the relationship between them. Expert No. 7 repeated his evidence about the sheer incredibility of the children’s account of their treatment by the father, as in, starving them, but they were so alienated that they would present a very damning picture of the father as someone who is fearful, and somebody who will do them long-term damage. The mother said that she would definitely agree that the children were not starved but that food was withdrawn, specifically on Wednesday 22nd April, when the children had no breakfast because they were bold, and she would say that as things disintegrated, there were no regular mealtimes in the house, and that as he stated himself, the father has no confidence now that access will build up.
78. Expert No. 7 said that he recollected Ms. O’Neill putting that to him and that he was trying to make the case for trying again. He agreed that the father terminated the last access period and that he called the mother to sort out the difficulties. He agreed with her that it was not a good thing that the father would ring her at any part of the country when the children stepped out of line or things became troublesome. He was in a situation where there was a lot of organisation between siblings and that, whether it was true or not, he had it in his mind that the mother was actually on the phone to the siblings. The mother stated that the children were not in touch with her before the incident on the last access.
79. The mother asked Expert No. 7 what his attitude was towards her three children at that time. He stated that it was one of concern and a disposition of care for their present situation and their future development and the relationship with both their parents. He confirmed that they seemed to operate at the moment as “mother’s little army”. When asked would that epithet be offensive to the parents, he stated that it might have been experienced as offensive by the mother, but it was to say that the “little army” was used as a metaphor to describe what he perceived as their disposition. She put it to him that when he questioned the children in his consulting room in her presence, he was “borderline comical, and laughing” and that the children were completely unsupported within the environment of their making complaints.
80. Expert No. 7 stated that the mother was quite wrong in this, and that if she found it comical his asking the father about what he had cooked for the children, she must remember that Expert No. 7 had an interview with the children shortly before, and had been told by them that he gave them nothing to eat. So he felt it was important to try and ask the father in front of the children what it was he gave them to eat, if anything, and was there any recognition, for example, of the rice crispy chicken or the marinated homemade burgers. Expert No. 7 stated that he would not have thought it was inappropriate to actually go over that kind of detail and he suggested that he did not know whether the mother felt, for example, that his attitude was comical when he talked to Natasha about being hit by her father and the mother might recall that he had tried to get from Natasha the extent to which she was hit and, in fact, also, the way and the strength of force with which she was hit. He stated that if she thought that that was inappropriate, that was her view, but it was, to him, taking very seriously the allegations that the children had made about being hit.
81. She asked him, very respectfully, would he in any way feel that he had become biased towards the mother and the children in the middle of the whole case. He disagreed but stated that this did not mean that he would not have formed views. She replied, “okay, the assumption that, without going into it in great detail, about what happened yesterday regarding the HSE in (hospital outside the health board area) the assumption that the children are playing a game and playing a performance, the assumption that Natasha scratched her father’s car, even though her father said he did not see her do it, assumption, even yesterday, that my father was deceased, if you go that far and he is not. He is alive”. Expert No. 7 asked the mother to bring him through the (hospital outside the Health Board area) assumption and tell him what it was. She replied “well the assumption that – that I – well, the evidence you gave to the court yesterday that I had left before the treatment was finished”. He stated that he gave evidence of the conversation he had in relation to the hospital and gave it as truthfully as he could to the Court and to the mother. She then went on to ask him about the assumption that the children were playing a game and that this was a performance rather than the children being in dire straits and he replied, that he had used the word “performance” to indicate that the behaviour was directed towards particular audiences. He was saying to the Court that he thought that in many ways that the mother was the specific targeted audience of some of the children’s behaviour. The mother then asked expert No. 7 if he believed that anything actually happened between the father and the children at the weekend. He stated that clearly something happened. Expert No. 7 referred to the fact that he had wished to deal with the children separately and two of them together but this had been thwarted by the mother, so it was difficult to form a final view in relation to what happened on the last occasion when there was a break down in access.
82. The mother then asked expert No. 7 if he thought that when a child is being mistreated by a parent the child has the right to say “no” and that they have the right to be listened to and taken seriously, and he agreed with that proposition absolutely.
Order Changing Access
• the draft childcare plan prepared by the Respondent be approved in general terms
• in the event of any proposed substantial changes to the said plan the Respondent to notify the Applicant 24 hours before intended implementation of the said change by text or email
• the Applicant and Respondent both to remain as legal guardians of the child with the Applicant having the rights of a legal guardian to be consulted in relation to matter of fundamental and strategic importance to the life development health and welfare of Edward
• as a general strategy in the short term the said care plan submitted by the Respondent to be taken as the plan notified to the Applicant under her rights as a guardian of Edward the said child of the parties. The Respondent to be given full discretion to implement that Care Plan with the minimum of interference from the Applicant and the maximum of support
• the involvement of expert no 7 herein to continue into the future
• the in camera rule to be observed by the parties herein
• pending the meeting with expert no.7 the children of the parties not to be informed of the terms of this Order
• pending the said meeting the Applicant not to speak to the children or to anyone having contact with the children in respect of the terms of this Order
• the children to be informed of the terms of this Order this day by expert no.7 only
• the Applicant to bring the children of the parties to expert no. 7’s rooms at 6 W D at 6pm on Friday the 6th day of November 2009 for the purpose of informing the said children of the terms of the Order made herein this day and for the purpose of effecting the hand over in respect of the custody of Edward from the Applicant to the Respondent the Applicant to vacate the said rooms after delivery of the children and to wait elsewhere to have Geraldine and Natasha brought to her by a third party
• access not to take place between Edward and his mother and/or his sisters Natasha and Geraldine for a period of two weeks after the handover in respect of the custody of Edward
• Expert no. 7 to assess arrangements for future access during the said period of two weeks
• Expert no. 7 to recommend arrangements to the parties for future family access following the said period of two weeks
AND IT IS ORDERED that this matter be adjourned to a date to be fixed for the giving of reasons in writing for the decision made herein this day
AND IT IS ORDERED that this mater be listed for further consideration on Friday the 11th day of December 2009
AND IT IS FUTHER ORDERED that there be liberty to apply herein
87. Expert No. 7 was at pains to point out that Sean and the mother had acted in a completely appropriate manner throughout the journey and planning for the intended transfer and during the transfer. In retrospect, and with hindsight, expert No. 7 said that he should have anticipated the girls possibly getting physical and could have taken steps to ensure that the transfer process was made more secure. He agreed with the Court that a lot of harm could have been done even in such a short time. He said that the father’s reaction to expert No. 7’s instructions to call off the transfer was to be completely cooperative as was Sean and the children went straight outside the door and things quietened down once expert No.7 said to stop. He agreed that it had been a very distressing situation incident for the children. When they were going out with Sean they were not crying, they had been shouting before. Expert No. 7 tried to reach the mother on her mobile phone but the phone rang out and there was no answer. Subsequently expert No. 7 was contacted by the local garda station in location No. 1 asking if he would mind coming to talk to them about an incident that occurred in his practice rooms. The gardaí did not inform him who had reported the incident, nor did he ask them. He made a statement to the gardaí and they did not give him any further information about any further action. It is interesting to note that this simple account was punctuated by two objections by Ms. Clissmann on the grounds that it involved hearsay, and I pointed out to her that I ruled in relation to this type of objection in a particular way when it was made by the mother when she was acting in person some days previously. Expert no.7 stated that subsequent to the Court making the order for the transfer on the previous week he received contact from the Superintendents office in the station in the vicinity of location No. 2 stating that a complaint had been made in relation to his contacts with the Sergeant from that station and referred to in the hearing in court the previous week. He stated that the superintendent indicated to him that he wanted to have a word with him about his conversation with the sergeant on the previous week and indicated to him that while the gardaí were always glad and were obliged to be of help to him with whatever information they had, as they had a complaint made that they would be obliged if in future he would contact them in writing and they assured him that they would write back to him utterly promptly with whatever information they had, and assured him of their continuing help. He also had a communication from social worker S. indicating that she had a communication from the hospital in location No. 1 where the children were brought by the mother after the incident of the failed transfer in his consultation rooms. She informed him that there were allegations coming from there that the children had been struck “and so on”. Social worker S. went on to tell him “do you know, having heard the social worker from (hospital in location 1) we are absolutely still of the view that the children are not at risk with the father”. He added that there had been further conversations between him and the children in his consultation rooms before he announced the order of the court for the transfer and they raised an incident surrounding the father’s bum in the wardrobe which culminated in an allegation of violence by the father against Geraldine, in particular, and they had further discussions in relation to the starvation issue and he found that the children agreed that they were not starved but the burgers were greasy and not nice. Ms. O’Neill introduced a medical report furnished by the solicitor for the mother which was agreed to be read to the Court in which it appeared that both Geraldine and Edward presented with painful arms which were placed in plaster of paris but on examination of the x-ray it was found that the suspected small breaks on the arms were not shown on the x-ray. I immediately became very suspicious of this outcome especially in view of the earlier “tubigrip” incident and initially inquired if all the medical attendants and consultants could attend to court to explain why a plaster-of-paris would be applied to a child’s arm suspected to be fractured before same was confirmed by x-ray. I became concerned that this represented an over reporting by the mother as had occurred on other occasions. A subsequent expert appointed under s. 47 (expert No. 9) convinced me notwithstanding the views of expert No. 7 and my general experience of the matter that, indeed, such a procedure is not entirely uncommon in Irish medical practice. There followed a general discussion in the Court generally between myself and expert No. 7 in relation to the possibilities for a resolution of the case in the light of the unfortunate failure of the transfer as planned. The option of abandonment of action was strongly canvassed by me to expert No.7 and expert No. 7 put the case for continued action. When I asked what possible good a further attempt for transfer could do to Edward on the basis that it would be very hard for him. I set out expert No. 7’s reply in full as follows:-
The following order was then made:
2. the following further arrangements for said transfer of custody of Edward do apply
3. the Respondent to arrange to have three men of his choosing with him to assist him in relation to effecting the transfer of custody of Edward at an appropriate time either in a public place or in such private place as he would as father be entitled to go in relation to recovering Edward - he at all times to exercise discretion so that he does not involve Geraldine or Natasha or the Applicant
4. the Respondent in his active endeavours and arrangements to effect the transfer of custody of Edward to be accompanied by two Gardaí
5. the Solicitors for the Respondent to notify An Gardai Siochana at Superintendent level of the Orders of this Court with instructions that the accompanying Gardai should be willing officers prepared to attend at this event or second attempts if no actual contact is initially made by the Respondent with Edward by reason of the fact that the occurrence of a breach of a solemn Order of the Court could occur and that there is a danger of public disturbance and a disturbance of the peace and that there is a requirement that An Garda Siochana ensure through their very best endeavours as Gardai Siochana to protect the Respondent in the lawful exercise of his right to effect the transfer of custody Edward
6. in the event of An Garda Siochana having any difficulty in the compliance with the spirit and explicit terms of the Orders of the Court that they should apply to Court at the earliest opportunity to explain their attitude and make such suggestions to the Court as may be necessary otherwise that they should communicate with the Respondent and should advise the Respondent as to the appropriate course which he should take so that he is in a position to comply with his lawfully directed actions by Orders of this Court in the most efficient manner possible so as to effect the transfer of custody of Edward
7. following the effecting of transfer of custody of Edward by the Respondent An Gardaí Siochana to ensure the safe exit of the Respondent so as to complete the delivery of Edward to the Respondent’s home in accordance with the care plan as directed by Order herein dated the 5th day of November 2009
8. the Applicant to continue to take care of Edward and to have him available as he would be normally in his usual routine of life pending the said transfer of custody
9. all other provisions of the said Order dated the 5th day of November 2009 be confirmed
10. the Respondent’s Solicitors do have liberty to issue a subpoena duces tecum for a date to be fixed to all the medical personnel from the Hospital Dublin who treated Edward the children of the parties on the 6th/7th November 2009 - they to bring with them their complete file to be fully examined in relation the said treatment of the Edward
11. no contact to be made by the Applicant or her Solicitors or anyone on her behalf with the said medial personnel in the Hospital Dublin
12. the Solicitors for the Respondent to consult with the said medical personnel regarding a suitable date and time for them to attend jointly or in succession for the purpose of hearing their evidence
13. the parties to observe the in camera rule herein
14. without prejudice to the in camera rule on the assumption that there would be no more contact between the Respondent and any of the children of the parties - should the Applicant wish to communicate with An Garda Siochana in relation to any matters she to give advance notification to the Solicitors for the Respondent of her intention to do so and details of the content of that complaint - without restricting her rights to complain in respect of any alleged wrongdoing in respect of any contact taking place in the future
15. no Order at present for the release of the Transcripts of the hearings before this Court other than that a transcript of the ex tempore Judgment of the Court in this matter be furnished to the parties
16. that a copy of the affidavit of the Applicant dated the 17th day July 2009 and copy exhibits thereto be furnished by the Solicitors for the Applicant to the Solicitors for the Respondent
AND IT IS ORDERED that the whole issue of continued access and contact between the Applicant and Edward and the Respondent and Geraldine and Natasha be reviewed on the 11th day of December 2009
AND IT IS ORDERED that this matter be adjourned for further consideration to the 11th day of December 2009”
88. On the 25th November, 2009, Mr. Gill who was instructing Ms. Clissmann S.C., for the mother, applied ex parte to the Court for a review of the order and to that end had filed an extensive affidavit of the mother setting out in great detail the circumstances of Edward’s new life with his father in location No. 1. The main and most stark features of that existence was that he had effectively been detained in an upstairs room with the window barricaded with a camp toilet and on occasions, at least, the door locked, when he was not in the company of his father outside the house and inside it. There was a complaint that a male carer of the ill grandfather had not got garda clearance for contact with children. As the matter was extremely serious, I allowed Mr. Gill to argue the merits of his position extensively notwithstanding the absence of any representative from the other side. This was helpful insofar as it signalled what would emerge as quite serious issues in the future development of the case. Mr. Gill submitted that in the middle of a regime which had been put in place to effect the transfer from the mother, Edward had his own personal constitutional and European rights and that he was in a place effectively detained where he did not wish to be and is indicative of a child on his account of it whose mental state is worsening and in respect of which expert No. 7 said to the mother the previous day when asked “how long will this go on” replied “it will go on as long it takes”. Mr. Gill said that it seemed to him that there was massive conflict between his client the mother, the father and now “the panoply of the Court and expert No. 7”, and apart from his client’s position it appeared to him that this was a case where the child’s personal rights may be in conflict or caught up in the conflict between his parents. He referred to the authority of the Supreme Court in the judgment of Walsh J., as far back as G. v An Bord Uctala (1980) IR 32, to the effect that the parents rights vis-à-vis the children’s rights are not necessarily primary. I refused the application of Mr. Gill for a review of the order and it is instructive to record verbatim my ex-tempore judgment as follows:-
I know that you are doing your job to the very best of your ability and the Court is very grateful to the very serious submissions you have made to the Court in relation to the law and the Court is very zealous (in the protection) of the child’s constitutional rights. But I regret to say that the Court would be absolutely trammelling the child’s constitutional rights if the child is left in a situation where the child can use his mother as a shop steward to undermine his proper upbringing. The attitude of the mother will have to change in this case. It is very sad to see the mother coming in with the type of affidavit she has done where it is all concern about the child in the care of the father and not prepared to say that there is a new reality in the life where there is going to be joint parenting. Because this is what the Court has essentially ordered, joint parenting, which has been denied to that child by the manipulative and over emotionally, bound up attitude of the mother. And the Court must ensure that the situation is given a chance to work.”
Complaint against Expert No. 7 – and “Children First”
91. Expert No. 7 was in Court and gave evidence in relation to his position. He explained that he had been told by two gardaí that a complaint had been made against him by Edward but he did not have details whether of time or otherwise relating to the complaint. He indicated to the Court that he would be satisfied to continue to act professionally in the case and monitor the progress of Edward’s settling in period with the presence of another health professional whenever in contact with Edward to address the safety concerns of the Court. He stated that he could assist the Court in relation to such contact as he had with the parents and Edward in relation to telephone access between the mother and Edward and conversations which he had with the two parents and Edward in relation to progress. He stated that the settling in process had already begun, that he had commenced school in location No. 1 on the day before. In his professional monitoring capacity he had the opportunity of overhearing a telephone conversation between the mother and Edward and noted a particular feature whereof was that he heard the mother say to Edward “you don’t have to take a shower if you don’t want to”. He was cross examined by Ms. Clissmann in relation to the likely conflict between his involvement in monitoring the settling in period which would be essentially a therapeutic role and his position as a person against whom a complaint of sexual abuse had been made. Expert No. 7 did not agree that there was in fact conflict as he experienced the situation in the preceding day or so insofar as in his conversations with the father and Edward it appeared that Edward was looking forward to meeting expert No. 7 and had inquired about him by reason of the fact that expert No. 7 was regarded by Edward as providing a prospect of telephone or other contact with his mother.
92. In the course of the continuing cross examination of expert No. 7 by Ms. Clissmann it became apparent that the continuation of expert No. 7, even on the qualified and well intentioned basis suggested by him, was extremely doubtful and that his continuation as an expert in the case was by no means secure. I took the view that it was important for the Court to protect the process of the Court and ensure the continuation and management of the settling in period by demanding of Ms. Clissmann that her client apologise to the Court for saying to Edward “you don’t have to have a shower if you don’t want to”, on the basis that I considered this to be a crass violation of the mother’s obligations to obey court orders and to co-operate with the process of settling in. I left Ms. Clissmann in no doubt but that the apology was not only in respect of this particular incident but also in relation to her general lack of co-operation.
94. When asked the following question by Ms. O’Neill “in circumstances where your approach towards Edward not taking a shower might conflict with his father’s approach to Edward taking a shower, do you think that is good for Edward?”, she replied “I would have to say that I said many other things on the telephone call where I did my best to be proactive, to tell Edward to adjust to his new surroundings, to eat, and to sleep, and to play with his toys. I asked him a lot of questions about – to tell me how his days had gone. And I tried to keep things as normal as possible”. Towards the end of the cross examination she said that she did feel that she could encourage Edward and the girls to have a relationship with their father. When I asked her to give examples of that, she said that she was thinking about what she did in the past and that they “would have a lot of discussions about how, you know, sort of – around the area of flesh and blood, how is the father, how – while we might not be living together now as man and wife, that he is their father and is – and will always be their father, and the children, of course, have some traits of both father and mother, but we would also discuss the traits that they would have similar to the father and we would discuss the interests that their father has, and the food that he eats, and there is quite a lot of conversation in the house around cooking and what the things that their father might cook and the things that I might cook. And, generally a kind of I won’t call it a universal discussion, but a discussion in a broad sense about fathers in general and the roles that they play in life. And with my oldest daughter, we have a lot of discussion about, maybe, grandchildren, and when the children grow up, that even though they find they may have had their differences with their father over the years, that – I have often said to my oldest child that she could have a child that looks like their father or their grandfather, and that it would be a good idea to try and mend fences and to try to build up a relationship. I have generally done that, judge, over the last two years. Huge efforts, and – and often times if there would be discussions in the household at home about different things, and their father, would be mentioned, we would discuss all round that in very, very very very positive terms. So, I wouldn’t, I wouldn’t agree that it’s while that is what has sort of been said to the Court here that daggers have been drawn. I don’t agree with that at all, within the household at home. I think the children have grown up and there is nearly a sense of humour about what has happened between myself and their father, but we have moved past that, and into – certainly with two girls, into the area of the fact that their father is their father, and that nobody is perfect, and that you know looking at it say from a universal level and the whole life level – they are the facts of the matter, despite all the difficulties and I don’t think there is any tension – and there is no problem in that area within the home, and Edward would have felt like that as well, other than the way things have been”. She agreed absolutely that if she failed to encourage Edward in his living arrangements with his father she would be undermining the Court’s order. At the conclusion of the cross examination I made an ex-tempore ruling, over a page and a half of the transcript, indicating that I was satisfied that the apology signalled a certain level of good faith on the part of mother and her indication of co-operation with the Court. I strongly rejected her claim that the case was still not one where daggers were drawn between father and mother, and I held that she still had a serious psychological block in terms of accepting co-parenting. Thereafter, the cross examination of expert No. 7 continued with Ms. O’Neill continuing to claim that he should have a continuing role and Ms. Clissmann disputing this on the basis of conflict of interest. Ms. Clissmann’s cross examination proceeded much beyond that narrow boundary and, in spite of her client’s undertaking to co-operate with the Court in the settling down process, which was emphasised by her attritional cross examination, Ms. Clissmann proceeded to query expert No. 7 on various aspects of what she referred to as Edward’s “detention and captivity”. Expert No. 7 stated that while the window of the upstairs room was securely fenced to prevent escape and there was a camp toilet in the room, the father had stayed with Edward at night in the bedroom. Edward had been encouraged to go downstairs to join the rest of the family during the day but had refused to do so. According to expert no.7, if there was any captivity of Edward it was the psychological captivity of the mother.
Direction of Cross Examination and Issues
Withdrawal of Expert No. 7
97. Before weekend access was established, the Court allowed supervised access in various contact points commencing with the house of Kathleen’s parents at location No. 1, where Edward had been staying, and then in various hotels or parks where an accompanying person, initially a sister of the father, would be present. The purpose of having this supervised access was to stop or discourage alienating conversations from mother to son but on the admission of the father’s sister, it was difficult to establish whether this purpose was being served and eventually the Court dispensed with such supervised access. Expert No. 9 had an opportunity to observe the handover on the occasions of these hotel visits of access and noted the lack of cordiality from the mother to the father on the handover and reminded her of her apology and undertaking to co-operate with the settling in process in the context of this lack of cordiality. The mother’s response was that her apology and undertaking for the Court was made under duress and hence, was irrelevant to her present behaviour. Ultimately, after some months, weekend access for the mother at location No. 2 was allowed by the Court and the parties, with the encouragement of expert No. 9, and displayed some co-operation in arranging the detail of the duration and handovers for such access. The handovers were not entirely without difficulty and one such occasion occurred just after the handover at location No. 2 when the father and Edward proceeded back to location No. 1, passing through location No. 3 towards the town, a short number of miles past location No. 3 where the father stopped the vehicle to get a takeaway leaving Edward in the vehicle on his own. Edward seized on this opportunity to make his escape in the direction of home at location No. 2 (which on his terms was within reasonable striking distance of a few miles). Edward was stopped on this attempt by the father chasing him, capturing him and returning him to the car. This whole process was observed by parties closely connected to the mother, one of whom had substantial connections with a certain law enforcement agency in another jurisdiction. This third party complained this matter to the gardaí and Edward made a statement and a criminal investigation ensued. This was not before the certain third party involved had pulled rank with the father and indicated that she would use her position in the law enforcement authority in the other jurisdiction to ensure that he would be punished for what he regarded as an assault on Edward. With the evidence available, the Court is not in a position to determine whether the appearance of this connected third party some miles from location No. 1 was by accident or designed. As the hearings progressed at this stage it became evident on the mother’s own account that connected third parties of various kinds had banded together to provide funds to the mother for legal representation of this phase of the proceedings and, on mother’s account, this process was formalised to the extent of established a “save Edward fund”. This title suggests activities which might well go beyond the mere assistance of the mother in legal representation during the course of her claimed undertaking to co-operate with the court orders relating to the settling in period of Edward. The reporting task of expert No. 9 was extremely onerous in what now must have become an unprecedented case of complication and conflict. He set about the task capably and conscientiously, never exceeding his own assessment of his capacities as expert, and with the approval of the Court and agreement of the parties sought to recruit the assistance of the HSE in relation to therapeutic counselling in respect of which he considered Edward greatly in need. His efforts of recruiting the HSE into the case did not meet with immediate success and he had to experience somewhat frustrating delays in negotiating through the various HSE authorisations which are required. Neither expert No. 9 nor the Court would criticise the HSE for these delays as it is readily accepted that this case was extremely fraught, not only by the complex counselling needs of Edward which expert No. 9 summarised as exhibiting some of the aspects of Post Traumatic Stress Syndrome as well as his more obvious washing and clothing behaviour and the mannerisms which had been exhibited prior to handover, and appeal to the High Court as set out in the reports of expert No. 7. When the HSE eventually came on board, the objective of their assistance, apart from providing an overall co-ordinating function in relation to ensuring that Edward would have the very best services available to him, was to recruit on an agency basis the Lucena Clinic which was accepted as the best organisation to provide the sensitive and expert counselling which Edward required. Expert No. 9 established contact with the Lucena Clinic where he was informed that they did not wish to commence such counselling until Edward’s situation had become secure, by which it was understood that the involvement of Lucena Clinic would not occur until the criminal prosecution (if any) or investigations relating thereto and this appeal were concluded. Expert No. 9 was able to liaise with the garda authorities in a general way without intruding on the criminal investigation process and report on the modalities of same to the Court.
98. In several detailed and rigorous reports to the Court, expert No. 9 outlined to the Court the efforts he made in the consultations between or with the father and mother and the other children to encourage a mediation type of approach. On balance he found the father more amenable to this approach than the mother but, in general, while his efforts did not meet with great success he remained optimistic that a negotiated approach from the parents to shared parenting was the way forward for this case rather than have further repeated applications to court. The Court shares this view as the fundamental balance of parenting arrangements have changed to the extent that the balance of interests of the parents have been altered, especially those of the mother which are to co-operate with an expert driven mediation approach so as to ensure the maximum contact and good relations with her son Edward as her perfectly valid maternal instincts would dictate.
99. As exemplified by his rigorous approach in relation to other disciplines, expert No. 9 went to considerable rounds to recruit expertise to assess Edward’s progress in his new national school in location No. 1. In his conversations with Edward he was presented by Edward with a picture of a child not having any friends in school, not partaking in sports and generally being an odd man out in the schooling situation. These accounts were not matched either by the father’s accounts or by the school principal’s accounts where it emerged that Edward had acquired new friends, had played with new friends and had participated in various sports and had a talent and aptitude for sports, although as yet he had not declared for any school teams. The mother in her participation in the proceedings had placed particular emphasis on school results. Expert No. 9 had obtained these results, both from Edward’s new school in location No. 1 but also in his old school in location No. 2. The only significant difference between the results was that there was a notable deterioration in Edward’s performance in maths. While expert No. 9 was far from satisfied that the information available to him would allow a conclusion that Edward had suffered a marked deterioration in his maths result after his change to school in location No. 1, without further detailed forensic investigations and some involvement of education assessors, I took the view that such further forensic involvement of the Court would be counterproductive insofar as it could undermine the important resources of mother. It would be preferable to proceed on the basis of the contention of the mother on a worst case scenario of deterioration of maths results, because I could accept that one might not expect a completely academically faultless handover of Edward in the circumstances and that if he had suffered a temporary setback in his maths performance which at least was temporarily associated with his handover through court order that, if his other settling in problems were dealt with, that the father and mother were in a good place to help him catch up in the most important area of mathematical studies.
Guardian ad Litem – The Law
101. Ms. Clissmann met these arguments in her later submissions. She adverted to the fact that in the cases dealt with in the Children’s List in the High Court involving the use an invitation of inherent jurisdiction of the Court, many of these cases were not classic public law cases but were cases where married parents were seeking the Court to exercise its inherent jurisdiction to compel the child care agencies or other state agencies, to provide facilities and solutions for unruly or uncontrollable children then in the care and custody of the parents. She further opened the works of Dr. Ursula Kilkelly which proposed a shunning of the paternalistic approach indicated by the welfare approach of the Irish Constitution and legislation towards a more rights based approach based on the UN Convention of the Rights of the Child and other international instruments. I am satisfied that on the basis of the decision of the Supreme Court in the Baby Anne case, (N. & anor. -v- Health Service Executive & ors.  IESC 60) the position of parents of a martial child, such as this case, is such that both they and the child benefit from the presumption that the welfare of the child is best served through the case and decisions of the parents. While the judgments in that case, for instance, that of Hardiman J., do not deal with situations where the marital parents disagree in relation to the welfare of the child, that situation is envisaged by him in discussing these principles. I hold that it has been long accepted that the Court, in acting in a private family law matter in resolving disputes between parents in relation to the welfare of the children, is merely acting as an instrument of applying parental authority depending on the very best psychological advice. While Dr. Kilkelly has developed the debate in this jurisdiction regarding the dichotomy between the so called paternalistic and rights based approach towards decisions regarding the children, I find that such categories referring to paternalistic or rights based treatment, while helpful by way of development of academic debate and understanding, do not really set out any basis for the Court taking the additional step of finding that it had an inherent jurisdiction to appoint a guardian ad litem. Even if one were to adopt the rights based approach advocated by Dr. Kilkelly to this case, I see no difference in the result from the actual process that occurred. One of the indicia of the rights based approach proffered by Dr. Kilkelly is that the courts in this jurisdiction adopt a welfare check list such as has been adopted in other jurisdictions. I have referred to the welfare check list generated by s. 1 of the Children Act, the jurisdiction of England and Wales and, I find that in the outcome of this case, whether at an interlocutory or a final level of the appeal the proceedings and inquiries of this Court driven by interaction with the various experts has generated a purpose built check list which has been systematically examined by the Court and conclusions made in relation thereto. Finally, if the mother in this case wished an order appointing a guardian ad litem she could have initiated plenary proceedings in this Court claiming against the HSE and/or the State and the Attorney General representing the State an order relieving against the wrongs which she perceived through her counsel as having been suffered by Edward. I am very diffident about the prospects of such proceedings if they were initiated, especially in the light of the mother’s persistent lack of co-operation with the HSE authorities at every level and her active undermining of their officials in certain instances.
103. The Court decided to hear the children not on the basis of the so called light touch method outlined in the case of D. v. O’D, 2 IR 225, but on the method used by hearing children in court in the C. v. W. case. The shunning of the light touch method was dictated by the concerns of the Court that it was dealing with a case where there had been serious interference and undermining primarily by the mother of the various experts who examined and spoke to the children and the parties, coupled with the fact that the Court was doing its business in the context of an as yet unresolved complaint of sexual abuse against one of the experts. I made this decision with some reluctance as I consider that children giving their views in court in this way seem to have difficulty in giving their views untainted by an anxiety to perform satisfactorily on behalf of the party whom they favour. This was all the more so in view of the fact that there had been a finding by a number of experts already that there was alienation of the children by the mother against the father. The balance was tilted in favour of this approach by reason of the necessity to protect the process of the Court and above all to ensure transparency. As it transpired the two girls told the Court that their wish was to be left to themselves, to establish a relationship with their father “if they wanted to” and to various degrees lamenting what they called the break up of the family. Edward spoke to the Court in a composed fashion, although he not did display any of the ticking found by expert No. 7 but resorted to nail biting in pauses in his articulate exposé to the Court. He stated in strong terms that he did not regard his father as a good father – “not like Sean” to whom he referred by the endearing name “Seanie”, and that in contrast his father would pull him by the arm if he did not go somewhere and was constantly ordering him to do things. He worried that his father might take him away to France, he did not like Kathleen, and he did not participate in school and wished to live at home with his mother. The Court left him to understand that he was free to say anything or, indeed, to say nothing as he wished to the Court, but the Court, through me and through expert No. 9, asked him to comment about his non-showering and aspects related to it and I asked him how did he feel about it and he failed to respond to any of these queries and, in fact, remained silent. While the Court must always be prepared in a common law jurisdiction in compliance with Brussels II bis to give due weight to the wishes of the children having introduced any factors arising from the interview into the forensic area to be dealt with inquiry based on evidence, rather than the mere recitation of a child of its wishes, such views need not be determinative of the issues to which they may be addressed. The Court told the children of its obligation to hear their views and also of the fact that, without any disrespect to them, their views might not be determinative of the issues at the end of the day. No issue arose for further forensic examination on the interview with the three children save for queries to expert No. 9 in respect of the possible forced crying in the later stages of the interview with the Geraldine, which expert No. 9 confirmed in unchallenged evidence to the Court. In view of the opinions of the experts and the consistent presentation of the children at interview, I am satisfied that they continue to be alienated by the mother and hence, consider that their views should not be allowed to change the fundamental approach of the Court.
Attachment of Edward to Main Players
105. The further main issue upon which the Court depended to sign off on the settling in period or make a fundamental change by allowing Edward back into the custody of his mother was heavily influenced by the opinion of expert No. 9 when asked if custody were transferred back to the mother would it be likely that she could afford or would allow access for Edward to the father, for instance, at weekends or other convenient times. His opinion that it was likely that such access would not be likely by reason of the attitude of the mother and the alienation of Edward. Upon hearing this opinion I became convinced in the light of other factors pointing against the return of Edward to the custody of his mother that he should remain in the custody of his father, subject to the protections and steps set out in the order made which arose by reason of the many detailed recommendations and arrangements made by expert No. 9, but not accepting his recommendation that the parties would be banned from litigating their differences in court again on the basis that such a blanket order against litigation would not be justified by the law, and especially would not recognise the paramountcy of Edward’s interests. Instead I substituted an order that, as a preliminary to any court application, the parties should refer their disputes for mediation by a named mediator skilled in that area.
106. I have concluded that primary care of Edward should be transferred to the father for the multiple reasons advanced by expert No. 7 bolstered by my own recorded observations of the matter in the interest of Edward and in the interest of objectivisation of the issue in the eyes of his sisters. I have found the conclusion of expert No. 8 to be a helpful critical tool for the testing of expert No. 7’s view, but I do not follow it as it does not differentiate between the alienation of sisters and Edward in view of his more tender years and fails to give any weight to the actual adverse affects – anxiety, nail biting etc of Edward – even in a situation where there is no transfer of custody, or the likely further undermining and alienating activities of mother. I make the following order;-
(a) permitting Edward the child of the parties to instruct a Solicitor to represent his interest his interests before the Court and by way of alternative
(b) that the Court would appoint a Guardian ad Litem whose primary role is to convey Edward’s wishes to the Court.
(An application for representation of Edward having been was first made to the Court on the 3rd day of December 2009 and which application was on the 27th day of January 2010 expressed in the aforesaid terms) in the presence of Counsel for the Applicant (apart from dates when the Applicant was not professionally represented and attended in person) and Counsel for the Respondent
And upon reading the said Notices the pleadings herein and the Orders made herein in the said Circuit Court and this Court the documents exhibited and adduced in evidence the written legal submissions on behalf of the Applicant and the Respondent respectively the respective Reports of (the Guardian as Litem appointed by Order of the said Circuit Court dated the 25th day of June 2008 – this Court having directed on the 19th day of January 2009 that her Report and evidence should be heard notwithstanding this Court not regarding her as the Guardian as Litem for the purposes of this Appeal) and of expert no.7 and 8 (the successive persons appointed to report to the Court pursuant to Section 47 of the Family Law Act, 1995)
And on hearing the oral evidence of the Applicant and Respondent respectively and of the experts
And the Court having interviewed Natasha, Geraldine and Edward the children of the parties on the 3rd day of June 2010 in the presence of Counsel for the Applicant and Respondent
And on hearing Counsel for the Applicant and Counsel for the Respondent
And the Court having reserved its decision herein on the 8th day of July 2010
And the decision of the Court being delivered ex tempore this day
IT IS ORDERED AS FOLLOWS: -
1. That the said Order of the Circuit Judge dated the 16th and 22nd days of October 2008 be vacated and the Orders following hereafter be substituted therefor
2. that legal joint custody of Natasha, Geraldine and Edward the children of the parties remain in place as a mark of expectation that the parents will collaborate and that relationships will be restored
3. that Edward to remain in the primary care of his father
4. That Edward do continue attending school at location B.
5. that Geraldine and Natasha do remain in the primary care of their mother
6. that the Parenting Plan regarding Edward as detailed in the Section 47 Report dated the 24th of March 2010 do continue including the provision for Edward having two weekends in four with his mother -the frequency of Wednesday's visits by his mother with Edward and Week Two and Week Four Sunday visits do reduce at the mother's discretion to be notified at least five days in advance to the father - the midweek visits to be flexible and to coincide with the mother's attending family therapy in Dublin
7. that expert do inform Edward of today’s decision of the Court on a day on which he is in the care of his father occurring after the 16th of July 2010 - no information in respect of this decision to be given to Edward by anyone including Natasha and Geraldine in advance of Edward’s meeting with said expert - Geraldine and Natasha in turn not to be informed of this decision until after Edward has been so informed
8. that said expert do inform Edward that in the event of his taking any of the steps outlined in Paragraph 13 that he would be compelled to obey the terms of this Order and in his discretion do explain to him the consequences provided for in this Order in the event of any such actions
9. that contact and access by Geraldine with her father is not being prescribed by the Court in this Order
10. that notwithstanding the legal joint custody position in respect of Edward the issue of choice of Edward's secondary education to be the father's sole decision in circumstances where it transpires that there is not agreement between father and mother on this issue following family therapy and mediation
11. that both parents do provide each other all information reasonably requested regarding Edward's progress and wellbeing and do consult each other regarding important decisions about his health welfare and education
12. that the Applicant is to provide all information and to consult with the Respondent in relation to Geraldine and Natasha
13. that in the event of Edward refusing to return to his Respondent on Sunday 15th of August or any other date agreed between his parents during the summer period or in the event of his absconding from the care of his father in circumstances that necessitate the Gardai being notified that in that event or in the event that he is away from his father overnight or that he has to be returned by the authorities by means of enforcement the following restrictions are to apply: -
(A) that his second summer period schedule with his mother to be cancelled and he is to remain with his father for the remainder of the summer holidays, i.e. in the case of an occurrence before the 30th of July when this period with his mother is due to commence;
(B) that weekend visits to the mother should be suspended until he is settled back in to regular attendance at school not resumed in any case before Friday the 24th of September;
(C) that during such periods of restriction visits from his mother to take place from 4 pm to 6 pm on Sunday 1st August, 29th August and 12th September, unless his father has arranged for him to be away on holiday, in which case an alternative visit date to be agreed;
(D) that these visits to be at home, at the home of his father subject to agreement or in the absence of such agreement that his mother would take Edward out for two hours;
(E) That thereafter normal weekends with the mother to resume not before Friday 24th September.
14. That in the event of the circumstances arising as referred to at Paragraph 13 and Edward's enforced return to his father being required the HSE social work department to be notified and liaison to take place between the Gardai and the HSE prior to any enforcement
15. that in the event of Edward's placing himself in any danger or threatening to do so such that any person chooses to notify the HSE as a matter of child protection both parents to cooperate fully in the HSE response
16. that in the event of events provided for at Paragraph 13 occurring An Garda Siochana at Superintendent level to be notified so that they be may provide assistance to the Respondent in the return of Edward to his custody in circumstances which they may consider would be a threat to public order as previously provided for in the Order herein dated the 12th day of November 2009
17. That the father and mother do engage with the Clanwilliam Institute for the following pieces of integrated work
A) Family therapy eventually to include Geraldine, Natasha and Edward
B) The option of Edward attending for individual therapy at Clanwilliam to be discussed at an early stage
C) mediation prior to September 2011 to agree the parenting schedule for the following year and make preliminary decisions for Edward's secondary schooling in September 2012
D) the Applicant and Respondent to seek assistance from Clanwilliam for referral to a clinical psychologist as detailed further in this order
E) as requested by Clanwilliam father and mother should note that the Clanwilliam Institute does not provide the assessment services as at D above and in the next paragraph of this order, but may be in a position to assist with referral for this piece of work and does not provide court reports
18. Each parent should self-refer to a clinical psychologist separate from the Clanwilliam Institute for the purpose of assessment of personality issues that might be impinging in the historic conflict and in this regard the Respondent is ordered to continue the contact he has had with the medical experts in relation to suspected Asperger's Syndrome or personality emphasis and bring that investigation to a conclusion and take steps to ameliorate that aspect of his personality in relation to the fathering of Edward and his sisters. Failure in this regard may be taken into account by the Court in respect of any decision on costs herein. Both parents should bring any insights gained from this process from self-referral to the clinical psychologist into the process of family therapy. In the Respondent’s case, while the emphasis is on the involvement of specialists with experience of Asperger's Syndrome, that does not restrict other aspects of the therapy to be taken into consideration by the Applicant and the Respondent. And the contact with the clinical psychologist should include psychometric assessment for both the Applicant and the Respondent
19. That there be no Order prohibiting further litigation herein but that in the event of any dispute arising between the parties the matter to be referred to solution to the mediation of Ms Lucey-Neale Barrister-at-Law in the first instance and that in the event of such mediation not being proceeded with and acted upon in a cooperative basis then the Court having seisin of any further dispute may take that into consideration as a matter affecting costs in accordance with the provisions now existing in the High Court Family Law Practice Direction
20. that F G should not be present at any of the handovers pending further order
21. that both F Gl and S P are expected to act in avuncular style in relation to Edward and in a manner which is encouraging and supportive of the parenting role both of the Applicant and the Respondent - the Applicant and the Respondent do convey to the said FG and S P the wishes of the Court in relation to this matter
22. That the Solicitors for the parties do notify forthwith by joint letter C F Social Worker Health Service Executive of the terms of this Order - said notification to be followed by forwarding to her a copy of this Order as soon as same becomes available
23. That the in camera rule be lifted for this purpose
24. That the costs herein be reserved until after the delivery of the written reasons for these decisions
25. That any further applications herein to be made in the Circuit Court
26. That the results of the current assessment of Professor F in respect of the Respondent be made available either directly or through the Respondent to the person or persons in the Clanwilliam Institute who will be dealing with the integrated work ordered by this Court in terms of family therapy and other matters – such results only to be communicated in the event of such family therapy taking place – any decision on whether the Report of Professor F be communicated to the Applicant to be at the discretion of the said person in the Clanwilliam Institute in the context of a Family Therapy situation
27. That a copy of this Transcript be furnished by the Registrar of this Court to BS
28. that the application by the Applicant seeking (a) a Guardian ad Litem to be appointed in respect of Edward and (b) separate representation in respect of Edward be refused
AND IT IS ORDERED that this matter be adjourned to a date to be fixed in respect of the delivery of the written reasons for the decision of the Court this day and in respect of costs”
107. Following such a lengthy appeal at the end of many protracted proceedings spanning numbers of years the question must be asked “what steps, if any, by way of court procedures could have been taken to avoid or, at least, reduce the extent of this profligate and destructive litigation?” In examining this question I consider that there are two aspects of the litigation which acted to the detriment of the parties and the children.
108. The first such aspect was the determination of the mother to query and undermine any expert who gave an opinion unfavourable to her. The first, and one of the most dramatic instances of this, involved her making a complaint to the British Medical Professional body in respect of the legal expert who was assigned by the District Court to examine the mental health of the father even before the commencement of proceedings in the Circuit Court. The Circuit Court file has the details of the correspondence consisting of the mother’s complaint which was detailed and full of professional skill seeking the finding of serious professional misconduct on the part of the examining expert insofar as he did not carry out a forensic examination of each and every fact recounted to him by the father. The second and most dramatic instance of this approach occurred in relation to expert No. 5 who dealt with a report to the court for the purpose of establishing, inter alia, whether the father should be allowed to take the children on holiday abroad. It is not clear from the papers how exactly this expert was sidelined from the proceedings, but it is clear from the mother’s later accounts especially to expert No. 8 (and in her evidence) that, while she considered all the experts and psychologists not to be helpful in the case, that expert No. 5 was particularly so. On reading expert No. 5’s report I can see not a scintilla of inappropriate reporting and examination. Quite the contrary. Her reports indicating that the father should be allowed to take the children on a holiday and her opinion that the children had been seriously alienated by the mother are opinions who would have been or, in fact, were shared (in relation to alienation) by the later experts in the case. While I accept that expert No. 6 excused herself from the case of her volition, the level of co-operation between the mother and expert No. 7 left a lot to be desired from the outset with the mother very tardy and selective about bringing the children to see expert No. 7. This culminated in the mother suggesting to the Court that expert No. 7 had gone past his usefulness in the case and sought his dismissal from the case. Even when it came to dealing with expert No. 8, who was a purported guardian ad litem selected by the mother and urged upon the Court to be appointed as guardian ad litem, the mother refused to allow expert No. 8 to deal with the children in the professional manner she thought appropriate by speaking to them alone in a location outside the home. When queried by expert No. 8 in relation to why the mother would not allow the children to speak to her alone unaccompanied by the mother in a location outside the home, the mother explained to expert No. 8 that while she would allow expert No. 8 to speak to the children while they were at home in a secure situation, it was an entirely different proposition to have such a facility while they were away from home. In this aspect I considered that the mother harmfully influenced expert No. 8 who was plainly and conscientiously trying to deal with a situation which had become very fraught and required the very best professional standards to the extent that she was not able to apply these professional standards for the benefit of the children and the Court. Even at the eleventh hour during the tenure of expert No. 9, the mother, on the account of expert No. 9, was less than fulsome in her co-operation with him at times.
109. The second aspect in answer to the question posed in this reflection is closely related to the activities of mother sidelining, or seeking to sideline, the experts from the proceedings. That arises from the fact that although a number of experts had reported to the Court that the mother was guilty of alienating tendencies, (even before expert No. 5 had an opportunity to report in clear and more dramatic terms about this alienation), the Court itself took no steps to put on record a conclusion and finding that there was underlining alienation activity by the mother and, therefore, was not in a position to take any action to counteract its corrosive effect or to alert any further court that there was severe risk of alienation. Furthermore, there was a failure to examine possible intrinsic causes for the alienating behaviour or reasons for it. The Court could have, for instance, examined why the mother was so intent on alienation and on taking this course. In this case it has certainly emerged from the mother’s accounts to various experts and the accounts of Geraldine in relation to the prospects of Edward not having to have access to his father once he reached the age of ten, that the mother was influenced by a closely connected third party who had somehow shaken off the obligation to ensure access for her children to their father. This appears to have become a standard for all the family, including the children, giving rise to an expectation that somehow the Court would bow to a rule of “no access over ten”. Early focusing on this aspect coupled with firm action to prevent the mother from intimidating experts and improperly influence them as she improperly influenced gardaí and social workers on occasion, would have left the mother considerably less convinced in her capacity to override the court process seeking to establish reasonable arrangements to ensure a continuation of the relationship between the father and children.
110. In dealing with s. 47 reports the court should record its conclusions arising from them. This prevents harm resulting to the parties to the proceedings, and also prevents great harm to the resources of the courts and, indeed, the various experts themselves, as failure to record conclusions in relation to a s. 47 reports has (for instance in the case of expert No. 5., effectively wasted the resource of that report and encourages the parties seeking to manipulate the s. 47 process in a more confident position that they may be able to repeat the process yet again in respect of the s. 47 expert by replacing the expert formerly used). In making the foregoing comments I am very conscious that the various Circuit Court Judges in dealing with this matter acted entirely in accordance with the rules of due process and natural justice and in a conscientious way, having regard to the best traditions of the Circuit Court. The response of the Circuit Court in a provincial circuit setting was attentive and timely having regard to the time taken to respond to the various applications brought before it. However, I accept the proposition made on behalf of the father by Ms. O’Neill that, whether by accident or design, the mother developed a system of defying court orders for access and allowing time to be lost in the development of the relationship between the children and the father only to consent in fulsome fashion to a renewed and liberal regime of access when brought to heel by a court application on behalf of the father. This ploy, I am convinced, occurred more by design than by accident as time went on and, in fact, this Court on appeal was unhappily lulled into the same process insofar as the Court was convinced to accept uncritically undertakings by the mother to afford access after a two days of dispute in the appeal before this Court. Under the Guardianship of Infants Act, 1964, as amended, the Circuit Court and the High Court on appeal, has reserved to it the jurisdiction to approve or disapprove of any custody settlement brought before it. With the haste and enthusiasm of the courts and practitioners to encourage parents to make positive and amicable arrangements for the parenting of their children in separated/divorce situations, a court might easily approve a settlement which might be in the interest of preventing systems failure in the courts and doing an injustice to the children especially, might have been more properly queried and adjusted to test the bona fides of the agreeing parties in the light of litigation history and to refuse to approve the settlement without being assured of a more active dynamic and provisions guaranteeing its desired results for responsible parenting. The course which this Court took following the apology by the mother relating to the “shower remarks” by inviting cross examination of the mother might be used sparingly, to test and strengthen the resolve of a likely offending party to comply with the proposed settlement. I certainly consider that, while the cross examination of mother in this case following her apology and undertaking to comply, was not wholly successful insofar as there remained a grudging and highly litigious attitude on the part of mother, I have no doubt that her Herculean efforts in travelling from location No. 1 to location No. 2 on a frequent basis for access with Edward would not have been achieved had the Court not put down some marker on that occasion.
111. In view of the foregoing judgment in a fraught and highly contested case, it is appropriate to examine and if possible extract some principles relating to s. 47 reports.
1. Section 47 of the Family Law Act 1995, as amended by s. 52 of the Family Law (Divorce) Act 1996, states as follows:-
Monitoring and Use of S. 47 Reports
(a) such probation and welfare officer (within the meaning of the Child Abduction and Enforcement of Custody Orders Act, 1991 ) as the Minister for Justice may nominate,
(b) such person nominated by a health board specified in the order as that board may nominate, being a person who, in the opinion of that board, is Suitably qualified for the purpose, or
(c) any other person specified in the order.
(2) In deciding whether or not to make an order under subsection (1), the court shall have regard to any submission made to it in relation to the matter by or on behalf of a party to the proceedings concerned or any other person to whom they relate.
(3) A copy of a report under subsection (1) shall be given to the parties to the proceedings concerned and (if he or she is not a party to the proceedings) to the person to whom it relates and may be received in evidence in the proceedings.
(4) The fees and expenses incurred in the preparation of a report under subsection (1) shall be paid by such parties to the proceedings concerned and in such proportions, or by such party to the proceedings, as the court may determine.
(5) The court or a party to proceedings to which this section applies may call as a witness in the proceedings a person who prepared a report under subsection (1) pursuant to an order under that subsection in those proceedings.
(6) This section applies to proceedings—
(a) under the Act of 1964,
(b) under the Act of 1976,
(c) under the Family Home Protection Act, 1976 ,
(d) under the Act of 1981,
(e) under the Status of Children Act, 1987 ,
(f) under the Act of 1989,
(g) under the Child Abduction and Enforcement of Custody Orders Act, 1991 ,
(h) in relation to an application for a decree of nullity, and
(i) under this Act.
(7) The function conferred on a health board by subsection (1) (b) shall be a function of the chief executive officer of the board.
2. The type of experts generally used for s. 47 reporting are child psychologists, psychiatrists, experienced counsellors with a focus on such reports and social workers. From time to time these reports have been produced by the Probation Service. Following a suspension of State subvention for this type of support, a scheme was recently introduced for the Circuit Court only and is not available for High Court appeals from the Circuit Court. The availability of this helpful scheme has, however, been restricted by the limitation of funds for it, so the overall position is that for all practical purposes these reports have to be funded by the parties themselves.
Implications for the Parties
4. Again, the unrestricted appointment under the general terms of the section results in an inevitable delay of between three and six months leading to a significant loss of time in addressing urgent child issues. From the point of the view of the expert appointed, unrestricted terms of reference under a s. 47 appointment results in their investigating many aspects of the case which are irrelevant to any real or likely issues in the case and, thus, wasteful of the expert’s time. From the point of view of members of the family, parents and children, an unfocused s. 47 reference gives rise to needless and intrusive interviews and inquiries which could, with no detriment to the family law proceedings, be avoided.
5. All of the foregoing considerations point to the necessity for the court, when making s. 47 orders, to focus their terms of reference in line with the requirements of the case and the paramountcy of the welfare of the child or children involved to ensure that urgent children’s issues are addressed without delay. This may well hasten the appointment of a s. 47 expert and depending on the urgency of the case may require a report from the expert within days or weeks, rather than the usual number of months. Experience has shown that this is extremely onerous, if not impracticable. With the continuous case management system in the High Court it has been easy to achieve this approach with the attention of legal practitioners and occasional appropriate inquiries from the list or case managing judge where the practitioners might be somewhat distracted by pressing financial aspects of the case.
6. In relation to a s. 47 report, terms of reference may be made by the judge in consultation with the legal representatives and, in most cases there is some initial pleading or affidavit documentation to give initial pointers to this process. On occasions it may be worthwhile and time saving for a judge to speak briefly to the children on a light touch basis to get some insight into whether the s. 47 report is necessary at all, or to match the s. 47 reporting procedure to the needs of the child and/or the inability of the court to gather enough material to resolve the issue. The active and prompt management of the court itself of the issue of appointing a s. 47 reporter, even to the point of being prepared to briefly talk to the children, very often has the effect of focusing the minds of the parties on the need to achieve a joint parenting solution leading to an interim or final settlement of the parenting issues, thereby avoiding the necessity for a s. 47 report and further court time. While the Circuit Court in many instances does not have the advantage of a more or less continuous availability of the court management function for children’s cases in private family law proceedings, the introduction of a system of case progression meetings with county registrars under the case progression practice direction and the act of intervention of practitioners and judges in court whenever interim or interlocutory applications in relation to parenting issues arise should bring about considerable cost and time savings for the parties, the courts, experts and ultimately for the Exchequer if it is funding the reports. Sometimes these further reports may arise by reason of the inability of the initial reporter to appear in court or continue to act in the case of one of the parties. The focusing of the requirements of such further reports is no less necessary and in most cases much easier than the first report. Even in cases where there is an objection upheld in relation to the continuing involvement of a s. 47 expert, it may be still open to the court to make the findings of fact in a written judgment or add brief findings of fact to such final or interlocutory order which may be made before the appointment of the next s. 47 expert so that unnecessary duplication is avoided where the court has as a result of the distraction of interim settlements of the parties never actually faced up to the long term problems in the case such as developing alienation. In these cases considerable savings and curtailment of the proceedings if not outright solution of the problems could be greatly influenced by the court of its own motion or with the assistance of the legal representatives in making interim findings in relation to s. 47 reports which are available to the court without necessarily undermining the good work of the parties and legal practitioners in arriving at the amicable interim settlement. I have witnessed situations where parents and children have been subjected to ten or more s. 47 reports over the years and it is saddening and disappointing to see how both parents and children eventually suffer from interview fatigue which greatly diminishes the capacity of the s. 47 experts to do their work, and is very damaging for the parties and their children. For example, in the O’D v. O’D case in which I gave judgment setting out broad outlines for what is since described as the “light touch” system of judge speaking to children, the interview with the children took place against the background of the father applying to have a new s. 47 expert appointed in view of the existing s. 47 expert having “outlived his usefulness in the case”. The purpose of the judge talking to the children in that case was to see if any useful purpose could be served by a further intrusive s. 47 report, and having spoken to the children I decided that no such s. 47 report would be required as to do so would, indeed, worsen the interview fatigue of the children and threaten their security where they were perfectly happy with their access arrangements subject to such tweaking as they preferred. The foregoing comments apply with even more force where there has been a full hearing of a parenting application resulting in a decision of the court, and in that instance the court order should not only address the decision reached on the resolution of the disputes between the parents, but also should make brief findings on fact based on the s. 47 reports so that when the matter comes back to court in the event of a breakdown of parenting arrangements between the parties that the initial s. 47 report will become a meaningful part of the litigation history of the parents.
Focusing to Date
8. Another example of legislatively driven focus is by reason of the universal requirements of the European Union, Brussels II bis Regulations Enforcements 2005, of the court hearing the views of the child in cases of parental responsibility involving the hearing of parental responsibility cases under the jurisdiction of the court accepted under these Regulations (which in effect means all parental responsibility cases, as one never knows when a child from non European Union parties might travel to another EU jurisdiction and require enforcement of an Irish order). In practical terms there may be no issues in the case concerning parental responsibility requiring the broad use of a s. 47 report regarding welfare issues and in these instances the scope of the s. 47 report, a child and hearing his or her voice in relation to the proposed or likely changes or arrangements in the proceedings in an age appropriate way, may be considerably advanced.
Expert Witness under Section 47
10. While accepting that the s. 47 witness is in the mainstream of court witnesses, it should be noted that there are certain fundamental differences between the role of the s. 47 witness in family law proceedings and the general run of witnesses called as experts in court. I innumerate these differences as follows:-
12. The establishment of such rapport and trust leading to the pouring out of intimate details of life and wide ranging allegations to the expert on all sides without having himself resolve the conflicting allegations between the parties in the expert’s report or they might expect a court to do. Far more upsetting for the party are understandable reactions from parties which lead to unnecessary, irrelevant and prolonged wasteful cross examination of experts in court and in some instances, are very damaging to the experts themselves insofar as their interest and motivation being involved in family cases may diminish or be eliminated by reason of the lack of control of such cross examination. In more extreme cases, the incensed party not understanding the process may instruct their legal representatives to apply to have the s. 47 reporter discharged by reason of bias or their credibility attacked by reason of alleged bias in not having resolved their allegations or perhaps having not resolved or put counter allegations by the opposing party before them for comment. The case decided by the Supreme Court in the judgment of Murphy J. in L.D. v. T.D. (Unreported, 9th November, 1998) is instructive in relation to how the court should approach these very common situations arising in the treatment of s. 47 expert witnesses in court. In that case, there was a report from a consultant psychiatrist before the High Court which favoured the father. One of the grounds of appeal was that in the preparation of the report, the psychiatrist had gathered evidence from the father which had not been put to the mother and that the mother had not been afforded the opportunity to give evidence in relation thereto. Murphy J. pointed out that while the psychiatrist was involved to some extent in the gathering of facts and opinions of relevant persons, he was in no sense determining those matters. The procedures adopted by such a person are not comfortable to those of a court and are not to be reviewed according to criteria appropriate for courts. The purpose of the report was to show the manner in which the judge went on to make helpful comments in relation to the assessment of the evidence of the expert and circumstances in which substantial failings of the expert in his professional discipline could lead to the court rejecting the opinion of the expert or seeking the expert to make further investigations or further consider his opinion in the light of the court experience. Difficulties may arise in relation to party disappointed about unresolved allegations which arise in a case for instance involving access arrangements for a child where access has been ongoing but the details thereof are in serious dispute but that without doubt the parties agree that liberal access should be granted but in the interviews one or both parties make serious allegations about violence which occurred several years before and do not make any allegation continuation thereof or indeed any allegation of any likelihood or possibility that it would occur again. Clearly, in such a case violence is (no matter how strongly it is to be condemned) occurring several years ago and ascertainable observations and facts would regard them as “par for the course”. Litigating parties have not the benefit of such insights which were not resolved by the expert. On the other hand, the court is duty bound in the interest of all concerned to control unnecessary irrelevant and inflammatory cross examination which will tend to pursue the subjective and unhelpful reaction of the parties for saying themselves, that they have been hurt by these allegations.
13. The court will have to proceed with sensitivity to the parties no matter how irrational or unprofessional their reaction may be in view of the very understandable nature of the emotions generated by an incomplete understanding of the party of the process involved in the s. 47 report. Clearly, most parties having been just introduced to this unusual procedure would not understand the process and therefore when the court of necessity seeks to control the legal representatives in relation to pursing these irrelevancies, it must show that sensitivity by explaining to the litigant why the court is taking such an approach either by addressing the litigant’s representative or addressing the litigant directly in the witness box.
14. In the absence of such a court explanation, not only is the position of the s. 47 expert weakened by the lack of understanding and confidence generated but also the appreciation of the litigant of the role of the court is certainly not enhanced with wasteful engagement in court cross examination.
Further Hazard Is the Phenomenon of the Family Law Litigant
16. Within the scope of these comments it is not necessary to give an opinion in relation to whether there is immunity from suit for expert witnesses arising from their work in preparing s. 47 reports and giving evidence in court. The century’s long immunity from suit in the English and Welsh Courts has in recent years been halted by the decision of the UK Supreme Court in the case Jones v. Kaney  UKSC 13. It is unnecessary to speculate as to whether the courts in this jurisdiction have or will follow that decision. Even on a worst case assumption that s. 47 experts may be liable to suit, or may be subject to disciplinary proceedings of their own profession in relation to their work in the courts as s. 47 experts, there are in my opinion certain steps which the court may take to protect the due process of court from malicious attempts to undermine the s. 47 procedure by complaints to disciplinary bodies or law suits for negligence threatened or initiated during the course of the s. 47 procedure. A helpful authority indicating the power of the court to control the disclosure of in-camera information arising from a s. 47 report and the evidence of the expert involved is the case M.P. v. A.P. (in-camera proceedings  1 I.R. 144 High Court, in which Laffoy J. held that a litigant in judicial separation proceedings seeking to make a complaint to the disciplinary body on the activities of an expert appointed under the equivalent to s. 47 in the 1989 Act could be prohibited from revealing these documentations in breach of the in-camera rule and also held that, pursuant of such disciplinary complaints was not consistent with the immunity from suit of experts. While this case was distinguished by Barr J. in his judgment in a later case, Eastern Health Board Applicant v. Fitness to Practice Committee of the Medical Council Respondent, Dr. Kathleen Celia Woods Families RFS & H Notice Parties,  3 IR 399, it seems to me that though a complaint may be made to a disciplinary body, such complaints may not be pursued by the complainant by the revelation of in-camera documents without the leave of the court. It also seems to me that the court in exercise of its power to protect its own process may at least grant an injunction against the complainant pursuing the complaint during the course of the hearing of the court if this may be done without damage arising from any delay in time involved. Equally, even if there is a right to sue an expert in respect of evidence in court or documents prepared in relation thereto, the court is justified in the protection of the process of the court under its implied powers to do so to injunct a stay on such proceedings until the process of giving evidence is over. The destructive tendencies of obsessive and disgruntled parties intent on attacking the process of the court through damaging s. 47 experts or their international equivalents has been subject to much attention and discussion from lawyers, experts and judges internationally. Proposals proliferate in relation to legislative provisions protecting s. 47 experts or their equivalent from unjust attack by nuisance actions or complaints to disciplinary bodies, and I am aware of at least one of the United States of America enacting a law through its legislature to that effect. Until it is found that the courts in this jurisdiction using their implied powers to protect the process of the court are not sufficient to protect family law proceedings from the harm of such vexatious and obstructive proceedings or complaints, it is premature to suggest that there might be legislative intervention as of necessity. Sometimes it is argued that this type of order protecting the process of the court arising by implication is a matter only for the High Court and not for the Circuit Court, the jurisdiction of which is conferred by Statute and, therefore, more limited than the High Court, a jurisdiction of which is of constitutional origin. This argument carries no weight as a tribunal of any kind must be taken as having an implied power to control its own process to ensure fairness and justice in accordance with its jurisdiction. In this connection it is important to realise the difference between an implied power of even an inferior tribunal or a court established in a statutory framework, such as the Circuit Court, and what is regarded as the inherent jurisdiction of the High Court arising to enforce rights of children or persons of unsound mind under the Constitution which have not been vindicated by legislative and/or administrative provision by the State.
Management of Cross Examination of Experts
18. A method which might ameliorate these problems in the case of a situation where there are two opposing expert witnesses would be to invite the experts to meet to discuss possible agreed positions and recommendations as specified in the Practice Direction on witnesses in family law cases of the Courts in England and Wales. Such a process is possible under the High Court Family Law Direction relating to expert witnesses generally, but I have never seen it used except in relation to witnesses relating to valuations and financial matters. Indeed, I would be reluctant to suggest the use of this direction unless very specifically requested to do so by the parties. This reluctance I justify on the basis that in cases where two opposing experts are retained there is probably much fragility and hostility of the parties arising from perceived or actual wrongs suffered by them through the activities of the opposing expert.
19. The foregoing comments may well give rise to further consideration in court and it might be suggested at some later date that guidelines would be formulated into a Practice Direction in relation to these matters. However, a word of warning should be sounded in relation to over optimism in relation to guidelines which might emerge to go towards solving the problems highlighted in this commentary. This warning is prompted by the experience of the English and Welsh courts arising from the Practice Direction made in 2008 regarding the necessity for an early hearing of the court to decide in a case where violence is raised as an issue as to whether access be refused by reason of the violence complained of by reason of an early determination on the issue of violence before decision of other aspects of the case. This is a laudable objective in this and any other jurisdiction and the approach of the courts in family law proceedings towards violence should be characterised in colloquial terms as that of zero tolerance. However, the experience in England and Wales following the 2008 Practice Direction was that ingenious and obsessive litigants raised the spectre to the extent that in many proceedings much time was wasted in protracted inquires in relation to violence in proceedings where ultimately it would be held that complaints of domestic violence would not be a bar to access. The result of the consequent litigation log jams through destructive forensic feedback resulted in not one but two revisions of that Practice Directive and the guidelines contained therein, leading to a more flexible approach leaving it to the judge to decide ultimately whether in a particular case domestic violence was likely in the end of the proceedings to be a factor which would preclude the granting of access, or which would upset the practical assumption of “contact”.