J.S. v C.S. (Orse. C.T.)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1995 No. 43M]
• Court: High Court

J.S. v. C.S. (orse. C.T.) (Nullity)

J.S.

Petitioner

and

C.S. (orse. C.T.)

Respondent

[1995 No. 43M]

High Court

Family law - Nullity - Jurisdiction - Master of the High Court - Contested nullity petition - Consultant psychiatrist appointed as medical inspector by Master's order - Whether Master had jurisdiction to make order in contested petition - Whether incapacity to enter into and sustain a relationship included psychological incapacity - Whether Master exercised discretion properly - Whether subject of psychiatric examination put at risk - Whether psychiatric examination constituted an interference with right to bodily integrity or privacy - Whether protection afforded by privilege against self-incrimination - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 36, r. 4, O. 70, r. 32 - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (33 & 34 Vict., c. 110), ss. 7, 13 - Court Officers Act, 1926 (No. 27), s. 3, s. 31, sub-s. 3 - Courts (Supplemental Provisions) Act, 1961 (No. 31).

Constitution - Personal rights - Whether psychiatric examination constituted an interference with right to bodily integrity or privacy - Privilege against self-incrimination - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 36, r. 4, O. 70, r. 32 - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (33 & 34 Vict., c. 110), ss. 7, 13 - Court Officers Act, 1926 (No. 27), s. 3, s. 31, sub-s. 3 - Courts (Supplemental Provisions) Act, 1961 (No. 31).

Words and phrases - "Inspection" - Whether interview included - Whether invasive test procedures or treatment included - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 36, r. 4, O. 70, r. 32.

Under O. 36, r. 4 of the Rules of the Superior Courts, 1986, the petitioner in matrimonial matters shall apply by motion on notice to the Master for directions, and the Master may make orders in respect of certain matters, including examination of witnesses, settlement of issues "or otherwise, which may be necessary or expedient."Under O. 70, r. 32, in nullity proceedings based on impotence or incapacity, the petitioner shall apply to the Master to determine "whether medical inspectors should be appointed to examine the parties", and the Master may appoint such inspectors to report the result of such examination.

This matter came before the High Court in the form of motions in a contested petition for nullity of marriage. On the 17th April, 1996, the Master of the High Court ordered that a named consultant psychiatrist be appointed as independent medical inspector for both parties, to prepare a report on certain issues fixed by him pursuant to O. 36, r. 4 and O. 70, r. 32 of the Rules. These issues involved, inter alia, the capacity of the psyche of one or both of the parties to enter into and sustain a normal marital relationship. The respondent appealed the decision of the Master to the High Court claiming that the Master had no jurisdiction to make such order in a contested petition, but that if such jurisdiction existed, he should have exercised his discretion in refusing to make the appointment. The petitioner brought a second motion under O. 70 for the High Court's directions and orders should the petitioner succeed in challenging the Master's jurisdiction.

Held by Budd J., in confirming the order of the Master of the High Court, 1, that while the forms contained in the Rules of the Superior Courts, 1986, concerning the appointment of and reports by medical inspectors clearly envisaged a physical examination of the parts and organs of generation, in practice, the forms were amended to take into account the appointment of consultant psychiatrists as medical inspectors. While the rules provided for the appointment of two medical inspectors, the appointment of one consultant psychiatrist was preferable so as to minimise stress and the incursion into the parties' privacy.

2. That the Master and the court had power, under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, the statutes authorising the making of the rules, and the provisions of O. 70, r. 32, to appoint a medical examiner, including a psychiatrist or psychologist, when grounds of impotence or incapacity were raised, and both had such power whether or not the making of the order was opposed.

• C.D. v. E.D. (Unreported, High Court, Henchy J., 21st June, 1971) considered.

3. That the word "inspection" had a wide connotation and included interview, although any invasive test procedures or treatment were excluded.

4. That, in view of the issues concerning the psyche which had been fixed by the Master, it was a proper exercise of the Master's discretion to appoint a consultant psychiatrist to carry out an independent examination of the parties, so that the court could benefit from such professional assessment before determining the issues.

McDowell v. Strannix [1951] N.I. 57 considered. Anderson v. Irwin[1966] N.I. 156 distinguished.

5. That the court would not lightly order an examination which was unpleasant, painful or potentially dangerous. A psychiatric examination did not necessarily constitute an interference with a right to bodily integrity. The court had the right to hear relevant and admissible testimony from witnesses and the appointment of an independent medical inspector with psychiatric skills appeared to be reasonable in the circumstances.

Kennedy v. Ireland [1987] I.R. 587 distinguished; Aspinall v. Sterling Mansell Ltd. [1981] 3 All E.R. 866; Prescott v. Bulldog Tools Ltd. [1981] 3 All E.R. 869 considered.

6. That, as the thrust of the petitioner's application was that the parties were never validly married, marital privacy should not prevail as a bar to an enquiry into the marriage's validity.

7. That the privilege against self-incrimination should be construed in a narrow sense, and should only operate to allow a witness in legal proceedings to refuse to answer questions when the answers might tend to incriminate by exposing the witness to subsequent criminal proceedings.

Cases mentioned in this report:—

Anderson v. Irwin [1966] N.I. 156.

Aspinall v. Sterling Mansell Ltd. [1981] 3 All E.R. 866.

D. v. C. [1984] I.L.R.M. 173.

C.D. v. E.D. (Unreported, High Court, Henchy J., 21st June, 1971).

Estin v. Estin 334 U.S. 541.

U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330.

R.S.J. v. J.S.J. [1982] I.L.R.M. 263.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

McDowell v. Strannix [1951] N.I. 57.

McGee v. Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

McM. v. McM. [1936] I.R. 177.

N. (orse. K.) v. K. [1985] I.R. 733; [1986] I.L.R.M. 75.

Prescott v. Bulldog Tools Ltd. [1981] 3 All E.R. 869.

Roe v. McMullen [1928] I.R. 9; (1927) 62 I.L.T.R. 33.

Motion on notice.

The facts have been summarised in the headnote and are fully set out in the judgment of Budd J., infra.

By petition dated the 26th July, 1995, the petitioner sought a decree of nullity.

By order dated the 17th April, 1996, the Master of the High Court ordered that a named consultant psychiatrist be appointed as medical inspector for both the petitioner and the respondent.

By notice of motion dated the 22nd April, 1996, the respondent appealed that order. The petitioner's motion for directions was dated the 2nd July, 1996.

The motions were heard by the High Court (Budd J.) on the 31st July, 14th October and the 17th October, 1996.

Cur. adv. vult.

Budd J.

Three motions in this nullity suit came before this Court. The first motion was an appeal from the order of the Master made under O. 36, r. 4 and O. 70, r. 32 of the Rules of the Superior Courts on the 17th April, 1996, appointing Dr. G.B. as medical inspector for both parties in the above entitled action.

The second motion was a motion for directions and orders under O. 70 of the Rules. This motion was brought by the petitioner, adopting a"belt and braces" approach, in case the respondent should succeed in her contention that the Master had no jurisdiction to make the order appointing a consultant psychiatrist as a medical inspector in a contested application. The petitioner's "fall-back position" is that the High Court itself at least has the power to make such an appointment and should do so in the circumstances of this case.

The third motion was in respect of an order for alimony pendente liteand while all three motions were more or less heard concurrently, this aspect was resolved after some airing before the court and an order was made by the court on foot of agreement between the parties.

Background

The parties went through a ceremony of marriage in a Roman Catholic church in Dublin on the 9th September, 1978. Both are Irish citizens and of Irish domicile. They have lived together at four addresses in Dublin and three children were born to them, namely D.S. in 1979, E.S. in 1980 and H.S. in 1989.

An answer strongly contesting the contents of the petition has been filed. The issues fixed by the Master to be tried involve matters not only of capacity to give consent but also include at least six issues concerning the capacity of the psyche of one or other or both of the parties to enter into and sustain a normal marital relationship.

The cases of D. v. C. [1984] I.L.R.M. 173, a decision of Costello J.,R.S.J. v. J.S.J. [1982] I.L.R.M. 263, a decision of Barrington J. and U.F. (orse. U.C.) v. J.C. [1991] 2 I.R. 330, a decision of the Supreme Court, all recognise the advances in knowledge of the psyche and that a decree of nullity can now be granted where the court concludes that a spouse, because of an emotional disability or incapacity, or an inherent quality or personal characteristic, at the time of the marriage was unable to enter into and sustain a normal marital relationship. Accordingly, it might appear that an appeal against the Master's order appointing a consultant psychiatrist as a medical inspector in a case involving these typres of issues would be...