C.B. v C.M.

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 16 April 2021
• Neutral Citation: [2021] IEHC 860
• Court: High Court
• Docket Number: [2018 No. 56M]

Between

C.B.

Petitioner

and

C.M.

Respondent

[2021] IEHC 860

[2018 No. 56M]

THE HIGH COURT

MATRIMONIAL

Medical inspection – Discovery – Family Law Act 1995 s. 47 – Respondent seeking to allow Family Law Act 1995 s. 47 reports to be provided to the medical inspector appointed by the High Court – Whether providing the s. 47 reports to the medical inspector was appropriate

Facts: The respondent applied to the High Court to allow the Family Law Act 1995 s. 47 reports prepared by “Dr. A.B.” to be provided to the medical inspector appointed by the Court on the 13th December 2019 (“Professor P.C.”). The request by the respondent for directions came about because the medical inspector appointed requested sight of the s. 47 reports in circumstances where it was her view that it was the best practice in psychiatry to have such information as was contained in those reports available to her before finalising her report to the Court. The s. 47 reports came into being as a result of a s. 47 order which the Court made for a very specific purpose. The question arose, in light of the Supreme Court authority and the High Court authority in particular which the Court had been referred to, as to whether it was appropriate or whether it was in accordance with those decisions that the reports be provided to her. In that regard, the respondent referred to a number of authorities dealing largely with issues of discovery.

Held by Jordan J that the Supreme Court decision in P.McG. v. A.F. [2001] 1 I.R. 599 and the decision of O’Neill J. in F.P. v. S.P. [2002] 4 I.R. 280 were helpful and clear authorities. Jordan J held that this was not a case which was creating an embargo on either side calling such evidence as they considered appropriate or necessary and cross-examining in such fashion as they considered appropriate or necessary in light of the information available to them at the hearing of the action. Jordan J held that this was a case about ensuring that the process of medical inspection in accordance with the Court order was carried out in line with the Supreme Court authority and High Court authority. It seemed to the Court that it would involve an overreach of her position if Professor P.C. was to stray into the realm of interviews conducted by Dr. A.B. and conclusions arrived at and recommendations made by her. It seemed to the Court that it was unnecessary that that should happen and inappropriate that Jordan J should make the order that had been sought.

Jordan J granted a direction as sought by the petitioner. Jordan J directed that the s. 47 reports were not to be furnished to Professor P.C. in light of the Supreme Court authority and the High Court authority which accorded with Jordan J’s own view of the matter. Jordan J considered that it would be incorrect and an overreach to allow Professor P.C. to have the s. 47 reports. It seemed to Jordan J that an order refusing Professor P.C. access to the s. 47 reports was an order that Jordan J was required to make in light of the Supreme Court decision and in light of the High Court decision of O’Neill J, with which he agreed.

Application refused.

EX TEMPORE JUDGMENT of Mr. Justice Jordan delivered on the 16 ^th day of April 2021

1 . The Court has heard the submissions on behalf of both parties and it has considered the authorities submitted by both parties.

The Application

2 . The application before the Court is in effect an application to allow the s.47 reports prepared by Dr. A.B. to be provided to the medical inspector appointed by this Court on the 13 ^th December 2019. The appointment of the medical inspector was to carry out the function referred to in the Rules of the Superior Courts. Insofar as the request by the respondent for directions is concerned, it comes about because the medical inspector appointed requested sight of the s.47 reports in circumstances where it is her view that it is the best practice in psychiatry to have such information as is contained in those reports available to her before finalising her report to the Court. I think it is important to say in that regard that it is apparent from Professor P.C.'s correspondence which is exhibited in the grounding affidavit that she is in a position to complete her report and has in fact indicated that she will complete the report and that it will be available without delay, even if she is not provided with the s.47 reports, but her view is that the best practice in psychiatry does cause her to make the enquiry and does place her in the position that she considers it best to have this information before finalising the report. In other words, she considers it desirable to see this information, to see this documentation.

3 . The other point to make in relation to the documentation which is sought is that the s.47 report or reports came into being as a result of a s.47 Order which the Court made for a very specific purpose. In the ordinary course of events these s.47 reports contain a factual narrative obtained by Dr. A.B. and then her conclusion and recommendations as a result of the information she has received.

The Legal Position

The question arises, if it is appropriate in light of the Supreme Court authority and the High Court authority in particular which the Court has been referred to, whether it is appropriate or whether it is in accordance with those decisions that the reports be provided to her. In that regard, the respondent has referred to a number of authorities dealing largely with issues of discovery and while helpful in the round they are not directly relevant to the issue which is before the Court today. In the Court's view, the Supreme Court decision in P.McG. v. A.F. [2001] 1 I.R. 599 and the decision of O'Neill J. in F.P. v. S.P. [2002] 4 I.R. 280 — are very helpful and clear authorities — although it is the position that they are not dealing with exactly the same point but they are relevant and the views expressed by the Supreme Court and by O'Neill J. are very helpful.

4 . In the first instance, it is useful to set out the relevant provision (section 47) of the Family Law Act 1995:-

‘47.—(1) In proceedings to which this section applies, the court may, of its own motion or on application to it in that behalf by a party to the proceedings, by order give such directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings or any other person to whom they relate from—

(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 the Child and Family Agency specified in the order as the Child and Family Agency may nominate, being a person who in its opinion 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...