Y.B v Z.B

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 16 June 2023
• Neutral Citation: [2023] IECA 154
• Court: Court of Appeal (Ireland)
• Docket Number: Civil Record No.: 2023/35

In the Matter of the Judicial Separation and Family Law Reform Act 1989 and in the Matter of the Family Law Act 1995 (As Amended)

Between/

Y.B

Applicant/Appellant

and

Z.B

Respondent/Respondent

[2023] IECA 154

Donnelly J.

Pilkington J.

Butler J.

Civil Record No.: 2023/35

THE COURT OF APPEAL

Child welfare – Psychological report – Family Law Act 1995 s. 47 – Appellant seeking the preparation of a psychological report concerning the welfare of his child – Whether the appellant’s application was a fact-finding mission

Facts: The appellant husband sought the preparation of a psychological report concerning the welfare of his child. The application was heard by the High Court (Sanfey J) on 2 February 2023. The trial judge issued an ex tempore judgment on the same date. The trial judge decided that it would not be appropriate to order a Family Law Act 1995 s. 47 report to facilitate a reconciliation between the appellant and his child. The appellant appealed to the Court of Appeal. The focus of the appellant’s notice of appeal was the trial judge’s treatment of the evidence. The arguments made fell into three broad groups: firstly, because the application related to a matter concerning the welfare of a child, the High Court should have taken the appellant’s concerns for assessing welfare at their height, i.e. the Court should have assumed that the child would be harmed by the lack of a relationship with him caused by parental alienation; secondly, the trial judge made findings of fact and/or drew inferences which he should not have done on the basis that there was conflicting affidavit evidence; thirdly, the trial judge should not have relied on the respondent wife’s averments as to the child’s desire not to participate in a s. 47 assessment when the appellant had no way of verifying this or of establishing that the child was acting of their own free will and not under the respondent’s influence. Finally, there was an additional legal ground to the effect that the trial judge was wrong to conclude that the appellant’s application was a fact-finding mission as s. 47 has a broad potential to address welfare concerns even in the absence of an application for custody or access. The respondent in response focused on that latter issue and contended that an order under s. 47 can only be made in respect of “any question affecting the welfare” of a person to whom the relevant legislation replies; as such an order was no longer being sought by the appellant and, in any event, would not be appropriate in light of the child’s age, there was no underlying question to which a s. 47 report could be addressed. The respondent also disputed the evidential grounds of appeal contending that the trial judge did not err and that the factual findings made and inferences drawn by him were justified either on the basis of the facts upon which the parties were agreed or on those which were averred to by the respondent and not plausibly denied by the appellant.

Held by Butler J that assuming, without necessarily finding, that the appellant was correct in his assertion that the trial judge should not have relied on the respondent’s hearsay evidence as to the child’s views on the application, it did not follow that the Court should direct the preparation of a s. 47 report regarding the child because such a report would not be directed to any question the High Court would have to decide regarding the child’s welfare. Although the appellant was critical of the trial judge’s characterisation of his intention behind the request being a fact-finding mission, it did seem to Butler J that this was, at least in part, what the appellant sought to achieve. Butler J accepted the bona fides of the appellant’s affidavit evidence that he hoped engagement in a s. 47 process would provide a mechanism through which the child might re-engage with him. However, notwithstanding the desirability of a reconciliation between the appellant and his child, Butler J held that this was not the purpose of s. 47. Butler J did not think the Court had jurisdiction to make an order under that section in order to achieve that end, no matter how desirable it might be.

Butler J held that were she required to form a view as to whether she should accede to the appellant’s application on its merits, she would refuse that application. Her provisional view was that the respondent should be entitled to an order for her costs of the appeal.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Butler delivered on the 16 ^th day of June 2023

Introduction

1 . This appeal raises a net but nonetheless complex legal question as to whether a court can exercise the jurisdiction conferred upon it under s.47 of the Family Law Act 1995 to direct the preparation of a psychological report concerning the welfare of a child when no specific relief is being pursued by the parties to the proceedings relating to the welfare of that child. Although s.47 is widely invoked in family law proceedings, such directions are usually made on consent so there is very little authority on the construction of the section or how it should be applied, if at all, in the circumstances of this case.

2 . The application in this case is being opposed largely because the child whose welfare is ostensibly in issue is due to turn 18 within a few months of the hearing of this appeal. Thus, even assuming it were possible to direct, organise and complete an assessment for the purposes of preparing a report under s.47 before the child turned 18, the substantive proceedings in which the application is made will not be heard much less decided before that date. This, in turn, gives rise to issues as to the status of a s.47 report when the subject of it is no longer a minor or a person whose welfare can be the subject of the proceedings to which the s.47 application relates.

Background Facts and Circumstances

3 . These issues arise in family law proceedings issued by the husband by way of Special Summons in October 2021 following the wife together with the children of the marriage (only one of whom was a minor) leaving the family home a month earlier. The husband claims that the marital relationship broke down suddenly in July 2021 when the wife announced that the marriage was over and that she did this at a meeting with him in the presence of their children. Despite the wife and youngest child (whom I shall refer to as X) remaining in the family home for a further two months, neither she nor any of the children have spoken to him since July 2021 and he has been blocked on the children's phones and social media. He attributes what he characterises as irrational behaviour on the part of his wife as being potentially due to some “medical malady” and makes particular suggestions as to what this might be.

4 . The wife disputes that the breakdown of the marriage was sudden. She claims that there were difficulties in the marriage over many years and that she had tried to address these with her husband, whom she describes as having a complex personality, but that he refused to engage meaningfully with her. On her account, the husband perceives the breakdown as sudden because of his lack of insight into how his behaviour negatively impacted on her and the children. She says that prior to 2020 the husband's regular absences from home on business afforded herself and the children some release from the strain of living with his unpredictability but that the stress of living together in close quarters during the Covid lockdowns made the situation intolerable. She alleges that the meeting in July 2021 was for the purpose of the children explaining to the husband how difficult they found his behaviour but rather than engage with their concerns, he was verbally abusive and demeaning of them. She does not dispute that the marriage had irretrievably broken down by this date. She denies the existence of any medical condition which would cause her to act irrationally.

5 . The circumstances in which the parties' relationship broke down is of broader relevance because the husband believes the reason that none of his children have communicated with him since July 2021 – save to confirm that they do not want to be in contact with him – is due to parental alienation. In other words, he believes that their mother has manipulated or influenced them thereby causing them to reject him. The wife denies this. She says that the husband was never meaningfully involved in his children's lives and their current desire not to have contact with their father is a result of his behaviour towards them. She would be quite happy for them to have contact but, given that all but one of the children are adults and X is close to being an adult, she believes that this is a matter for the children rather than for her, or indeed the Court.

6 . The husband raised the issue of his failed attempts to contact his children in solicitor's correspondence following the wife's leaving the family home with X. From October 2021 his solicitors wrote suggesting the joint appointment of a psychologist by both parents “ to provide a forum at which (X) and (the husband) might articulate and hopefully resolve whatever has taken place”. These letters expressed his hope that by creating this forum his older children might voluntarily engage in a similar process “ with the sole purpose of renewing his relationship with each of them also”. In reply, through her solicitor, the wife indicated that she would continue to encourage the children to reconcile with their father but noted that at their ages “ they can make their mind up if they wish to accept a call and contact from their father”. As the wife did not specifically respond to the suggestion of a jointly appointed psychologist, the husband's solicitors wrote again saying that if she did not revert with the name of a suitably qualified person, he would bring a motion...