C. v D

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Jordan
• Judgment Date: 07 February 2024
• Neutral Citation: [2024] IEHC 638
• Docket Number: Record No. 2023 73 CAF

Between:

C.

Appellant

and

D.

Respondent

[2024] IEHC 638

Record No. 2023 73 CAF

THE HIGH COURT

FAMILY LAW

Relocation – Best interests – Maintenance – Applicant seeking to relocate with the dependent child – Whether it would be in the child’s best interests to allow relocation

Facts: The applicant mother wished to travel with the dependent child to the United States where she said that she had a strong network and an American family. She appealed to the High Court from the Circuit Court decision delivered on 12 June 2023, refusing relocation. The respondent father appealed aspects of the subsequent Circuit Court order made on 6 November 2023 dealing with other guardianship, custody and access and related matters at issue between the parents. He appealed in respect of the portion of the order directing that a property be independently valued and the equivalent sum be paid to the applicant within three months. He also appealed in respect of the order directing him to continue to discharge the sum of €1,026 per month in respect of maintenance for the child. In fact, the sum being paid was €1,126 and he sought a reduction in that sum.

Held by Jordan J that he would affirm the order of the Circuit Court refusing the applicant’s application to relocate. He would not consider that he had regard to the child’s best interests if he allowed it to happen. It seemed to him that the opinions expressed by Professor Sheehan and Ms O’Farrell were correct, but they were opinions and views that he had arrived at independently. He dismissed the appeal against the order of 12 June 2023.

Jordan J held that, regarding the order of 6 November 2023, he proposed changing para. (e) to read “an order directing the Respondent to continue to discharge the sum of €1,126 per month in respect of maintenance for the dependent child until payment of the lumpsum and thereafter that payment to reduce to €1,000 per month in respect of maintenance for the dependent child and in addition, [the respondent] is to pay 50% of the medical, dental and educational expenses”. Insofar as the property was concerned, he varied para. (d) to read an order directing the respondent to pay to the applicant the sum of €300,000 within two months of the date of the judgment, the intention being that she will use that money towards the acquisition of accommodation as in a house or an apartment for herself and the child as a home. Jordan J intended to add the following orders in sub. (a): the applicant will have one week at Easter time during which she can bring the child to the United States - the plans in that regard to be made at least three months in advance and the weeks to alternate every other year; commencing the coming Christmas, the applicant may take the child to the United States for a seven-day period commencing on 22 December to 29 December 2024; should the applicant wish to take the child to the United Kingdom or to mainland Europe for a long weekend then she is entitled to do so two times per year, provided the plans are made three months in advance and a long weekend is to be three nights and four days or thereabouts. Jordan J directed that the child continue her primary education in the primary school which she was attending, noting that: (1) she was doing well there; (2) the applicant picked the school; and (3) a substantial sum of money of €300,000 was being paid to the applicant to go towards the purchase of a home in the greater area.

Appeal dismissed.

JUDGMENT of Mr. Justice Jordan delivered on the 7 ^th day of February 2024 .

1 . This is an application involving A, who was born in 2015 in Ireland, and her parents. It is a relocation application in that the mother, who is the applicant in the proceedings, wishes to travel with A. to the United States where she lived for several years and where she says that she has a strong network and an American family. It is an appeal from a Circuit Court decision, or more correctly from two Circuit Court decisions. The first was delivered on 12 June 2023 — which judgment was followed by a written judgment delivered on 17 August 2023. A subsequent Court order dealing with other guardianship, custody and access and related matters at issue between the parents was made on 06 November 2023 — and there was again a short written judgment in relation to that aspect of the matter dated 31 October 2023.

2 . The applicant mother has appealed the refusal to relocate which is the order made on 12 June 2023 and the respondent has appealed aspects of the subsequent Court order made on 06 November 2023. One part of that Court order is now moot because it provided at para. C for Christmas access for the Christmas gone by. There is an appeal in respect of the portion of the order of 06 November 2023, which was an order directing that the property at …. be independently valued and the equivalent sum be paid to the applicant within three months. There is also an appeal in respect of the order directing the respondent to continue to discharge the sum of €1,026 per month in respect of maintenance for the dependent child. In fact, the sum being paid, and it has been paid for some years now, is €1,126 and the appellant/respondent father is seeking a reduction in that sum.

3 . In relation to the proposed relocation application there are a number of points which need to be made. The first is that A. is fortunate to have two doting parents and she is thriving because of the love and affection and care which she is receiving from them both. The second is that I do have a very carefully prepared portfolio, as it was referred to by the appellant, in respect of her proposed relocation. It is a book running to some 53 pages with a very carefully thought-out presentation in relation to the proposed relocation. In the book there are photographs relating to the American family, the American connections, and relating to the happy time spent with the appellant and A. in the United States. There are photographs from those locations and it is readily apparent that the appellant has good friends and has support in the United States and has in the past enjoyed very happy times there, which happy times are repeated for herself and A. when they go to the United States.

4 . Another point which needs to be made is that it is clear from the appellant's evidence that the breakdown in the relationship between herself and the respondent and its aftermath have taken a heavy toll on her. It is clear that C. is unhappy at this present moment in time and believes that she would be happier in the United States amongst her American family. While it is the position that some of the American family, or perhaps those captured by that phrase, are not blood, it is also apparent that the appellant does have blood relatives in the United States. She is American by birth and holds an American passport and also holds an Irish passport, although her parents are South American and are living in a South American Country where she has spent many years and where she went to with her parents when a very young child.

5 . What also needs to be said, and I will return to this, is that the issue I am concerned with here is the welfare of a young girl and what is best for her and in circumstances where unfortunately, I cannot deliver a judgment which would allow both the appellant and the respondent, the mother and the father, to leave this Court joyful and happy. There is what is referred to in the authorities as a binary choice involved here — whether C. is allowed to relocate with A. or not. Indeed it might well be, and probably is the case, that the outcome today will be tinged with sadness for both sides. The truth of it is, notwithstanding the breakdown of the relationship, it does seem to me that the father and mother of A. understand the importance of cooperation between them both in order to ensure that she continues to thrive. Neither the appellant nor the respondent will be oblivious to the sadness and hurt that the outcome of this appeal will cause to the other and will likely consider how that will impact on A. This is a conundrum that this Court cannot solve but it is something that the father and mother can together mitigate after the decision is made on this appeal.

6 . The position in relation to the law is that it is quite well settled in this area and is dealt with in a quite recent appeal in the Court of Appeal, the decision in K v K which is reported at [2022] IECA 246. At p.246, para. 4 of that judgment Whelan J. states when dealing with a relocation application before the Court:-

“Ultimately in such applications the burden rests with the moving party to demonstrate to the satisfaction of the court the benefits to be conferred on the child or children by the proposed move abroad, while satisfying the court that the relationship of the child with the left-behind parent can and will be maintained over time by the constructive ongoing operation of sufficiently comprehensive and extensive contact and access with the left-behind parent.”

That is making the point that if relocation is allowed the Court must strive to do everything in its power to ensure that proper and appropriate contact is maintained between the child and the parent who is left behind. It is making the point also that in these applications the burden rests with the Appellant to demonstrate in effect how it is in the best interests of A. that the relocation be allowed.

7 . In the same case Collins J. cited, with approval an earlier decision of Whelan J. in SK v AL [2019] IECA 177:-

“What is involved is “an exercise in welfare assessment”, without any presumption either in favour of or against the proposed relocation. The exercise is necessarily comparative: what the court is required to do is to identify and evaluate the available options, carrying out a “balancing exercise in which each option is evaluated to the degree of...