L.D. v N.D.(2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Jordan
• Judgment Date: 27 February 2020
• Neutral Citation: [2020] IEHC 267
• Date: 27 February 2020
• Docket Number: [2019/24 CAF]
• Court: High Court

IN THE MATTER OF THE GUARDIAN OF INFANTS ACT, 1964 (AS AMENDED)

AND

IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976

AND

IN THE MATTER OF R.D. (A MINOR)

BETWEEN:

L.D.

APPELLANT

AND

N.D.

RESPONDENT

[2020] IEHC 267

Jordan J.

[2019/24 CAF]

THE HIGH COURT

FAMILY LAW

Relocation – Child welfare assessment – Evidence – Appellant seeking to be allowed to relocate to reside in the United Kingdom along with the child of her marriage with the respondent – Whether evidence was relevant and admissible

Facts: The appellant applied to be allowed to relocate to reside in the United Kingdom, her place of origin, along with her daughter, the child of her marriage with the respondent. The matter came before the High Court by way of an appeal from the Circuit Court judgment and order of Judge Ryan of the 28th of March 2019. The notice of appeal filed on the 2nd of April 2019 by the appellant was an appeal against the whole of the judgment and order of the Circuit Family Court. Shortly before the commencement of the appeal hearing, the legal team for the appellant notified the respondent’s legal team that they intended to call Dr. Byrne-Lynch and objection had been taken to her being called to give evidence. Mr McCarthy S.C., for the respondent, said that this was fresh evidence which would completely alter the landscape and put his client at a disadvantage and perpetrate an injustice on him.

Held by Jordan J that the evidence was relevant and admissible. He held that the respondent was at liberty to exercise the right of cross-examination, insofar as the evidence of Dr. Byrne-Lynch was concerned. It seemed to the Court that, in circumstances where it was engaged in a child welfare assessment, it would be wrong of it to exclude the evidence and in those circumstances it proposed to allow Dr. Byrne-Lynch to be called by the appellant.

Jordan J held that the appellant was entitled to call the evidence that was under discussion.

Appellant entitled to call evidence objected to.

EX TEMPORE JUDGMENT of Mr. Justice Jordan delivered on the 27th day February, 2020

1 An objection has arisen at the outset of this appeal concerning the calling of evidence arising from the report prepared by Dr. L. The Court has considered the submissions of both sides. They raise an interesting question concerning the difference, if one exists, between the procedure in respect of appeals from the Circuit Court to the High Court as opposed to appeals from the High Court to the Court of Appeal and to the Supreme Court.

2 The matter arises because of the fact that in July 2018, having received the report of Dr. L, the solicitors for Mr. D. (hereafter ‘the respondent’) raised a concern that the author had made reference in a report to the fact that in addition to having cited the court affidavits, she had cited also emails and medical notes and other notes which were provided by the parties. The solicitors for the respondent (Dillon Solicitors) pointed out that their client was not asked to provide any additional documentation, nor did he do so. He was not given any opportunity to either have sight of, or to comment on, any of these additional documents and a request was made that the documentation in question provided by Ms. D. (hereafter ‘the appellant’) to the author of the report be furnished to Dillon Solicitors. Correspondence ensued on that particular issue, resulting in a letter from Keith Walsh Solicitors (representing the appellant) on the 18th September 2018, to Dillon Solicitors listing nine separate categories of documentation which the appellant had furnished to Dr. L.

3 There was further correspondence, which was professional and co-operative, between the solicitors on both sides in relation to the issue which had arisen and ultimately the solicitors for the appellant wrote to Dillon Solicitors on the 25th of October 2018, referring to a draft letter which had been prepared for another expert whom it was proposed to bring in, Mr. F. In the second paragraph of that letter, Keith Walsh Solicitors stated:-

“Having discussed this matter with counsel we believe it would be essential that a motion is issued by you grounded on a short affidavit setting out that for reasons outside the control of both parties it has been agreed that Dr. L is no longer to continue in her appointment and that Dr. [sic.] F will replace her”.

4 Subsequently, there was some correspondence to achieve that desired end and Keith Walsh Solicitors wrote on the 2nd November by email to Dillon Solicitors, referring in the final sentence to “the one outstanding matter is that we should agree a formula of words to deal with Dr. L's exit from the scene”.

5 So by agreement between the parties, Mr. F. came in and Dr. L ‘exited from the scene’ and did not give evidence in the Circuit Court, although she had prepared and finalised a report.

6 Shortly before the commencement of this appeal hearing, the legal team for the appellant notified the respondent's legal team that they intended to call Dr. L and objection has been taken to her being called to give evidence. Mr. McCarthy S.C., for the respondent, says that this is fresh evidence which would completely alter the landscape and put his client at a disadvantage and perpetrate an injustice on him.

7 The Court has had the benefit of two folders of legal authorities, one from each side, and has heard submissions from both sides on the first and second day of the hearing of...