L.K. v M.M.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Abbott |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] IEHC 840 |
| Docket Number | [2014 88 CAF] |
| Court | High Court |
| Date | 06 November 2015 |
[2015] IEHC 840
[2014 88 CAF]
THE HIGH COURT
Family – S. 47 of the Family Law Act, 1995 – Appointment of assessor – Biasness – Welfare of child
Facts: The first named applicant, being the testamentary guardian of a child, had filed an appeal against the order of the Circuit Court awarding the custody of the child to the first named applicant with access to the second named applicant, another testamentary guardian and the respondent, being the natural father of the child. The first named applicant contended that an updated report under s. 47 of the Family Law Act, 1995 was needed to sort out the differences between the parties regarding child access. The respondent objected to the preparation of that report by the previous assessor and contended that it should be prepared by an independent assessor as the prior report showed extreme bias against the respondent.
Mr. Justice Abbott granted an order for the preparation of the s. 47 report by the same reporter who had previously made the report subject to the condition that the reporter would speak to the child for the purpose of giving up-to-date information about the child. The Court held that the s. 47 reporter was not determinative of the family law proceedings and he could be examined like any other witness. The Court observed that it would be the discretion of the Court to give appropriate weight to the report of the s. 47 reporter and any statement made by that reporter in extreme terms was nothing more than an expression of opinion. The Court found that though it might not be a good thing to entirely endorse the recommendation contained in an expert report, yet, in practice, it had become regular that the Courts were placing heavy reliance and trust on the contents of the report for expeditious solution of the family law proceedings. The Court opined that the final arbiter of the case would still be the Court and not the s. 47 reporter who had the benefit of hearing both sides before formulating his opinion and hence, an allegation of bias against such persons would be of no aid unless there was breach of fair procedures or constitutional rights.
This judgment relates to a notice of appeal served by the respondent of an order of the Circuit Court dated the 31st July, 2014. The first named applicant issued a notice of motion directing that an updated report, under s.47 of the Family Law Act, 1995 [hereinafter referred to as a ‘s.47 report’], be prepared by Ms. N.D. The respondent/appellant opposed this, and submits that a new report should be made by an independent assessor, as the assessor used in the Circuit Court was biased against him.
The applicants/respondents in this case are the testamentary guardians of a child who was born in 2003. The second named applicant/respondent, however, has stated that she intends to have no further involvement in the matter. The respondent/appellant, Mr. M., is the child's natural father. He was in a relationship with the child's mother that ended soon after his birth. The child's mother then began a relationship with the first named respondent, Mr. K., in 2006. The child was 3 at this time and formed an attachment to Mr. K.. The child lived primarily with his mother and the first named applicant/respondent from 2006 until the time of his mothers death in 2012. The child's mother appointed her own mother Mrs. C., the second named applicant/respondent, and Mr. K., as testamentary guardians of the child.
Following the sad passing of the child's mother, a dispute arose in relation to custody, access and guardianship. This dispute resulted in the Circuit Court, in 2012, directing that a s. 47 report be prepared in relation to the child E., by Dr. B., to assist the Court in deciding what living arrangements were in the child's best interests. The parties entered a settlement agreement on foot of the recommendations made in this report in relation to custody, access and guardianship on the 13th November, 2012. This agreement set out that Mr. K would have sole custody of the child E. with the second named applicant and the respondent/appellant (natural father) having regular access with the child. Recently however the situation between the parties has become strained and the respondent/appellant brought an application on the 17th December, 2013, for directions regarding the welfare of the child, in particular he sought greater access with the child. The Circuit Court directed that a s. 47 report be prepared, this was done by Ms. N.D. and the report was furnished to the Circuit Court on the 13th June, 2014. On the 17th June, 2014, the respondent/appellant (natural father) issued a motion seeking sole custody of the child. This motion was heard in the Circuit Court in June, 2014. The parties and Ms. N.D. (the s. 47 assessor) gave evidence.
Her Honour Judge Murphy provided a full written judgment in the Circuit Court, in relation to the application made by the respondent/appellant for full custody of the child. She awarded custody of the child to the first named applicant/respondent and provided the natural father and second named applicant/respondent with access rights in relation to the child. Importantly in this judgment, Judge Murphy assessed the allegation of bias submitted by counsel for the respondent/appellant, in relation to the author of the s. 47 report. She found that there was no such bias, and considered the report favourable to both parties and fair in its assessment.
The respondent/appellant (natural father) served a notice of appeal in relation to the decision of the Circuit Court. In light of this, difficulties have arisen in relation to the access arrangement currently in place. The applicant/respondent's solicitors wrote to the respondent/appellant in relation to Ms. N.D. preparing an updated s. 47 report. However, the respondent/appellant is not agreeable to this, as he outlined that Ms. N.D. was biased against him in formulating the original report. The respondent/appellant submits that Ms. N.D. stated in her evidence that ‘even if the M. family were perfect in all respects, I still would not have recommended that Mr. M. be granted sole custody of [the child]’. He further submits that she that acknowledged she was incorrect in this assessment, and outlines the reason for this to be that she got emotional in the court setting. The solicitor for the applicants denies that Ms. N.D. made a statement in relation to becoming emotional in the court setting. Additionally, it is submitted that the respondent ignores the lengthy explanation provided by Ms. N.D., in this assessment encompassing many factors including the child's own view. He further submits that it is unfair to subject the child to have a further full s. 47 report, as this will be the third he will have had to engage with in the past 4 years. It is submitted by the applicants that Ms. N.D. is best placed to carry out the updated report, as she has significant previous knowledge of the case. It is therefore submitted that Ms. N.D. carrying out the report would save the strain on the child of another full report, carried out by a further expert.
The hearing proceeded on the basis of the affidavits, filed on behalf of both parties, being opened. These dealt with the respondent/appellant's allegations of bias and his claims that the applicants/respondent's (Mr. K's.) claim for an updated s. 47 report, should be refused.
Counsel for the applicant/respondent submitted that the position in relation to alleged bias by the s.47 expert ought to be considered in the light of the parallel jurisprudence of which the leading case was Ryanair v. Limited v Terravision London Finance Limited [2011] IEHC 244, (unreported 30th June, 2011). The judgement, of Fennelly J., in that case related to the criteria for establishing objective bias on the part of a judge sought to be prevented from hearing a case. She submitted that the suggested bias of the s. 47 expert fell far short of meeting these criteria, and, in any event, the position of the s. 47 expert should be considered in the light of the Supreme Court judgement analysing the role of s. 47 experts in G.McD. v. P. L. and B.M. [2010] 2 I.R. 199.
Counsel for the respondent/appellant submitted that the offending statement of the s. 47 report reporter clearly indicated bias, such that the respondent/appellant could have no confidence in her, and that furthermore the Court could not be justified in continuing her appointment as an independent expert under s. 47. He cited the practice of this Court and of the Circuit Court in relation to the replacement of s. 47 reporters, and stated that the approach should be to pose the question (asked by one Circuit Court judge experienced in family law) as to whether the parties ‘could have confidence in the procedure going ahead’.
The statement of evidence which is claimed to give rise to bias on the part of the s. 47 expert is as follows:-
‘even if the M. family were perfect in all respects I would not have recommended that Mr. M. be granted sole custody of E.’
The Court is of the view that this statement is a means of indicating the weight which the witness attached to the factors relied upon by her, to come to the opinion that the respondent/appellant should not be granted sole custody of the child. It represents, in verbal terms, a summary of a hypothetical situation being an improvement on the picture presented in the evidence of the respondent/appellant's situation, and an indication that these hypothetical improvements would not change her opinion. In doing so, the s. 47 reporter engages in nothing more than a literary exercise used by...
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