B . v O'R

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 15 May 2009
• Neutral Citation: [2009] IEHC 247
• Court: High Court
• Date: 15 May 2009

[2009] IEHC 247

THE HIGH COURT

[No. 78 C. A./2008]

B (K) v O'R (L)

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964, AS AMENDED

IN THE MATTER OF J.B., H.B. AND H.B. (MINORS)

BETWEEN/

K.B.

APPLICANT

AND

L.O'R.

RESPONDENT

FAMILY LAW ACT 1995 S47

FAMILY LAW ACT 1995 S49

GUARDIANSHIP OF INFANTS ACT 1964 S11

P (W P) v W (S R) 2000 4 IR 401 2001 1 ILRM 371 1999/22/7070

FRISCIONI v FRISCIONI 2009 FAM CA 45

SHANNON CHILD LAW 2005 70-1

JOHANSEN v NORWAY 1997 23 EHRR 33

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

PAYNE v PAYNE 2001 FAM 473 2001 2 WLR 1826

CHILDREN ACT 1989 S13(1)(B) (UK)

POEL v POEL 1970 1 WLR 1469

GUARDIANSHIP OF INFANTS ACT 1964 S3

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622 2000/13/4960

CONSTITUTION ART 41

CONSTITUTION ART 42.5

L (F) v L (C) 2007 2 IR 630 2006/33/7001 2006 IEHC 66

FAMILY LAW

Custody

Non-married parents - Father resident in Ireland - Custodial mother seeking to move to England and marry - Psychiatrist's report - Allegations that children influenced by respective parents as to their views - Whether father or mother appropriate custodian - Whether appropriate to reduce Circuit Court award of maintenance in light of economic downturn - WPP v SRW [2001] 1 ILRM 371, W v R (2006) 35 Fam LR 608, AMS v ALF [1999] FLC 92-852, Frisconi v Frisconi [2009] FAN CA 45, Johansen v Norway [1996] 3 EHRR 979, Payne v Payne [2001] Fam 473, Poel v Poel [1970] 1 WLR 1469, Northwestern Health Board v HW [2001] 3 IR 622 and FL v CL [2006] IEHC 66 [2007] IR 630 considered - Guardianship of Infants Act 1964 (No 7), ss 3 and 11 - Circuit Court order giving mother custody of children affirmed, maintenance order varied (2009/75CA - Murphy J - 15/5/2009) [2009] IEHC 247

B (K) v O'R (L)

Facts: the applicant was granted guardianship and joint custody of his children by the Circuit Court with primary care and control to the respondent. It made a further order that the children take up residence with the respondent mother in England. The applicant appealed that part of the order to the High Court.

Held by Murphy J in dismissing the appeal that, when granting leave to a parent to relocate with children, a regime had to be devised, as far as possible, which fulfilled the child’s right to regular contact with the parent no longer living permanelty in close physical proximity. In this context, the welfare of the child was the paramount consideration. The welfare of the children was best served by them remaining with the respondent, their primary carer.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Roderick Murphy delivered 15th day of May, 2009

1. Appeal

2 This appeal was heard initially on 16 ^th and 17 ^th February, 2009, at Naas.

3 By agreement of the parties I met the eldest child on Friday 27 ^th February, 2009.

4 The matter resumed on 1 ^st April in Dublin.

5 The Circuit Family Court (Judge Michael White) delivered a detailed judgment on 27 ^th November, 2008, having heard evidence over four days late in October. The order of the Circuit Court made on that date appointed the father as joint guardian having joint custody of the three children with primary care and control to the children's mother. Before that the mother was the guardian and the father's applications in that regard to become guardian had not been successful.

6 The court further ordered that the children take up residence with their mother in Yorkshire within a radius of 20 miles from Harrowgate not before July, 2009. The order was to be ruled in the English Court prior to the children being moved.

7 A detailed order was made in relation to custody and access.

8 The mother was to choose the primary school for H. and H. in Yorkshire. In the absence of agreement the court would approve a secondary school for the eldest child which would include Irish day or boarding schools.

9 Other orders followed in relation to communications.

10 It was ordered that the father pay:-

11 (a) A weekly sum of €342.00 for the maintenance of the children to be paid weekly by direct debit subject to annual CPI increases, and

12 (b) An annual sum of €3,000.00 to assist in defraying additional expenses payable in the sum of €1,500.00 twice yearly with separate arrangements for the eldest child to attend school in Ireland.

13 By notice of appeal, undated, the applicant appealed part of the judgment in relation to the relocation of the three dependent children.

14 Both parties are in separate relationships. They were never married to one another.

15 The court has considered the affidavits sworn in the Circuit Court proceedings. The affidavit of the father of 29 ^th May, 2008, and the replying affidavit of the mother of 3 ^rd July, 2008, were considered together with the evidence of the parties in the appeal hearing and the submissions of counsel.

16 The central issue was the secondary schooling of the eldest child, J. B.. A secondary issue was a draft agreement dated 4 ^th December, 2008, between the parties which was drafted by the father to be signed by the parties and also by the eldest child regarding the possibility of him returning to Ireland if he did not settle in England and if he wished to return. The father agreed to look after the children should the mother be unable to do so on any occasion.

2. Pleadings

17 On 7 ^th September, 2005, a notice of appeal against the District Court order of 6 ^th September, 2005, refusing the guardianship application was served.

18 On 1 ^st April, 2008, an equity law civil bill claiming sole custody of the children to the father was delivered with provision for access by the mother. An order was also sought restraining the removal of the children from the jurisdiction and an application was made for a section 47 report.

19 On 29 ^th April, 2008, an order was made that a section 47 report be made and, on 6 ^th May, 2008, the order appointed Dr. Brian Houlihan as the author of that report.

20 On 31 ^st July, 2008, an order was made restraining the mother from removing the children from jurisdiction and granting joint custody under s. 11 of the Guardianship of Infants Act.

21 On 27 ^th November, 2008, the judgment, already referred to of the learned District Court judge gave primary care to the mother and deemed the welfare of the eldest child a "more difficult issue". The judge held that the eldest child had not been unduly influenced by the father.

3. Legal precedent

22 The law in relation to custody and access where the defendant brought the children to this jurisdiction without informing the plaintiff was the subject of W.P.P. v. S.R.W. [2001] 1 I.L.R.M. 371.

23 Keane C.J. held at 381 as follows:-

"The exercise of the right to determine a child's place of residence may, of course, be restricted by order of the court awarding custody to one parent by prohibiting the removal of the child from the jurisdiction of the court without the further leave of the court or the consent of the other parent. In such a case, as already indicated, the removal of the child, without such leave and without the consent of the other parent may constitute a breach of the right of custody vested in the court. In this case, however, we are concerned with an order which gave the plaintiff rights of access only. It is clear, in my view, that the appropriate machinery for enforcing such rights is article 21 of the Convention. To order the return of children and their custodial parent to the jurisdiction in which they were formerly habitually resident merely so as to entitle the non-custodial parent to exercise his rights of access is not warranted by the terms of the Convention."

24 In A.M.S. v A.I.F. [1999] F.L.C. 92-852, the question of relocation to another State in Australia was considered. The court, in granting leave to relocate held that it was necessary to devise a regime which adequately fulfilled the child's right to regular contact with the remaining parent.

25 In Friscioni v. Friscioni [2009] FAM C A 45, the court granted leave for the child to relocate with her mother in the Czech Republic subject to spending six weeks each summer with her father. At page 70-71, para. 2-100 in The Child Law (2005), Geoffrey Shannon summarises the principles which have emerged in Australian jurisprudence:-

"…A test appears to be for the Court to focus on what is best for the child. It determines what benefits the child will have, what detriments the child will suffer in a move, and the consequence that will follow from an order restricting movements. In determining such cases, the courts in Australia have evolved the following principles:-"

26 The welfare and best interests of the child remains of paramount importance but is not the sole consideration; The court cannot require the applicant for the child's relocation to demonstrate 'compelling reasons,' for the relocation.

27 Similarly, the party opposing relocation will not be required to show 'compelling reasons' for opposing it. Neither party bears such an onus."

28 It is necessary for this Court to evaluate each of the proposals advanced by the parties.

29 A court cannot proceed to determine the issue in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no division of the case into discreet issues such as primary issues as to who should have residence and a further issue or separate issues as to whether the relocation should be permitted.

30 The evaluation of the competing proposals must weigh the evidence in submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

31 The statutory criteria must be considered.

32 The issue of freedom of movement must be weighed.

33 When granting leave to relocate...