D.K. v P.I.K.
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 09 March 2022 |
| Neutral Citation | [2022] IECA 54 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No 2021/232 |
[2022] IECA 54
Haughton J.
Collins J.
Barniville J.
Court of Appeal Record No 2021/232
THE COURT OF APPEAL
CIVIL
Judicial separation – Relocation – Access – Appellant seeking access to the digital audio recording of the judge’s meetings with the children – Whether the judge was justified in refusing access to the transcript of the meetings
Facts: The respondent father issued proceedings for judicial separation. In February 2020, the appellant mother applied for orders directing that the children be returned to her primary care, regulating the father’s access to them and permitting her to permanently relocate the children. The father opposed the application. On 23 July 2021, after a 5 day hearing in June 2021, the High Court (O’Hanlon J) refused the application: [2021] IEHC 516. The High Court concluded that the proposed relocation was not in the best interests and welfare of the children. The Judge met with each of the children on 8 July 2021. The mother appealed the refusal of the relocation application to the Court of Appeal. The mother applied for access to the Digital Audio Recording of the meetings with the children. The application came before the Judge on 30 July 2021. The father opposed the application and it was refused. The mother appealed that refusal. The net question presented by the appeal was whether the Judge was justified in refusing access to the transcript of the meetings. The appeal came on for hearing on 6 December 2021. Having heard the submissions of counsel for each of the parties, the Court of Appeal announced that it was allowing the appeal and it directed that the transcript of the meetings should be furnished to the solicitors for each party, subject to the condition that they may be used only for the purpose of the judicial separation proceedings (including the appeal from the refusal of the relocation application). The Court indicated that it would give its reasons at a later date.
Held by Collins J that AP v Minister for Justice and Equality [2019] IESC 47 and AC v Cork University Hospital [2019] IESC 73 clearly indicate that to have required the mother to present her appeal in circumstances where she and her legal representatives had not had sight of material that was clearly relied on by the Judge in reaching the decision the subject of the appeal would have been fundamentally unjust and contrary to the basic ground rules of the administration of justice under the Constitution. In those circumstances, and in the absence of any relevant countervailing factors, the Court concluded that the order sought by the mother should be made.
Collins J held that, given that the mother had been “entirely successful”, s. 169(1) of the Legal Services Regulation Act 2015 gave her an entitlement to an award of costs against the father. In Collins J’s provisional view, it would not be appropriate that the mother should have to bear those costs and, accordingly, he would be minded to make an order directing the father to pay the costs of the mother, such costs to be the subject of adjudication in default of agreement.
Appeal allowed.
(ACCESS TO TRANSCRIPT OF JUDGE'S MEETINGS WITH CHILDREN)
JUDGMENT of Mr Justice Maurice Collins delivered on 9 March 2022
The right of children to have their views taken into account – the right to be heard — in proceedings that directly affect them is now widely recognised. It is reflected in the fundamental law of the State. Article 42A.4.2 of Bunreacht na hÉireann (inserted by the Thirty-First Amendment of the Constitution ( Children) Act 2012) provides ( inter alia) that provision “ shall be made by law for securing, as far as practicable, that in all proceedings [concerning the adoption, guardianship or custody of, or access to, any child] in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.” 1
The child's right to be heard is also enshrined in the Charter of Fundamental Rights of the European Union 2 and in the UN Convention on the Rights of the Child 3.
While there is significant international consensus at the level of principle that children should be heard, as this appeal illustrates difficult questions may nevertheless arise in practice as to how that ought to be done and the conditions in which it should take place.
The proceedings here are for judicial separation. There are three children of the marriage, E (a girl now 15 years of age), L (a boy aged 12) and I (a girl aged 10). DK (the father) is an Irish national. PIK (the mother) is a national of D. The family has resided in a third country, I, for many years. DK and PIK's marriage broke down some time ago. PIK issued family law proceedings in I in 2017, but in 2019 the court declined jurisdiction for reasons which it is not necessary to recite. Subsequently, these proceedings for judicial separation were issued by DK.
In 2019 PIK removed the children to D (the State of her nationality) without the consent of DK. After proceedings were brought by DK under the Hague Convention, PIK returned the children to I and they have resided there since. Custody of the children is shared by DK and PIK on a week on, week off basis.
In February 2020 PIK applied in the judicial separation proceedings for orders directing that the children be returned to her primary care, regulating DK's access to them and permitting her to permanently relocate the children to D. In addition, PIK sought an order pursuant to section 32 of the Guardianship of Infants Act 1964 (as amended) ( “the 1964 Act”) appointing an expert to determine and convey the wishes of the children. As explained below, a section 32 order was made in advance of the hearing of the motion and the only relief ultimately pursued at the hearing was that of relocation. That being so, I shall refer to this application as the “ relocation application.”
DK opposed the application. After a 5 day hearing in June 2021, the High Court (O' Hanlon J) refused the application for the reasons set out in her lengthy judgment delivered on 23 July 2021 ( [2021] IEHC 516). In essence, the High Court concluded that the proposed relocation was not in the best interests and welfare of the children.
As her judgment records, the Judge met with each of the children. While the Judge refers to her interactions with the children as “ interviews”, I prefer to refer to them as meetings. The meetings all took place on 8 July 2021 — after the conclusion of the hearing and before judgment was given — face-to-face in the courtroom, in the presence of the registrar. The Judge met each of the children separately. Neither DK or PIK nor their legal representatives were present. The meetings were recorded by the Digital Audio Recording (DAR) system and, on the direction of the Judge, a transcript was prepared and put on the court file in a sealed envelope (Judgment, para 123). The circumstances in which these meetings took place is discussed in more detail below.
PIK subsequently appealed the refusal of the relocation application to this Court and that appeal is listed for hearing on 4 April 2022.
After the Judge gave her Judgment, PIK applied for access to the DAR of the meetings with the children (she also sought the DAR of the hearing itself but that aspect of the application is not relevant to this appeal). The application came before the Judge on 30 July 2021. DK opposed the application and it was refused.
PIK appealed that refusal. The net question presented by the appeal was whether the Judge was justified in refusing access to the transcript of the meetings. The appeal came on for hearing on 6 December 2021. Having heard the submissions of counsel for each of the parties, the Court announced that it was allowing the appeal and it directed that the transcript of the meetings should be furnished to the solicitors for each party, subject to the condition that they may be used only for the purpose of the judicial separation proceedings (including the appeal from the refusal of the relocation application). The Court indicated that it would give its reasons at a later date. This judgment sets out my reasons for allowing the appeal.
It is necessary at this stage to say something more about the course of the proceedings in the High Court.
As I have mentioned, one of the reliefs sought by PIK in the relocation application was an order appointing an expert pursuant to section 32 of the 1964 Act.
Section 32 is an important provision which was referred to extensively in argument before us. It was inserted into the 1964 Act by section 63 of the Children and Family Relationships Act 2015. Section 32(1) provides that in proceedings to which section 3(1)(a) of the Act applies — any proceedings in which the guardianship, custody or upbringing of, or access to, a child is in question — the court hearing the proceedings may, by order, do either or both of the following:
“(a) give such directions as it thinks proper for the purpose of procuring from an expert a report in writing on any question affecting the welfare of the child;
or
(b) appoint an expert to determine and convey the child's views.”
Such an order may be made by the court of its own motion or on application to it. In deciding whether to make an order, the court must have regard to the views of any party to the proceedings or any person to whom they relate (section 32(2)) and section 32(3) sets out certain factors to which the court must have regard in particular in deciding whether to make such an order. In argument, counsel for PIK placed particular reliance on Section 32(4) and so I shall set out in...
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K v K
...appeal from the refusal of the relocation application): see my judgment of 9 March 2022 (Haughton and Barniville J concurring), DK v PIK [2022] IECA 54. As will appear, the Judge's meetings with the children was also a central issue in this THE COURSE OF THE PROCEEDINGS IN THE HIGH COURT 18......