High Court of Ireland Decisions

1. Having concluded the hearing of the Applicants’ claim for a decree of Nullity I immediately thereafter embarked on the second set of proceedings between the parties namely the application under the aforesaid Act.

2. By Special Summons dated the 15th January, 1999, the Applicant father, sought against the Respondent mother, Orders, pursuant to the provisions of the Guardianship of Infant Act, 1964, seeking direction as to the right of two children to reside with the Applicant; an Order for custody of both children to be given to the Applicant and further and other relief.

3. The Interim Order of O’Sullivan J dated the 2nd November, 1999 gave the Applicant custody of the infant pending the substantive hearing by the High Court. The eldest son is now of full age and no Orders are sought in respect of him.

4. In this Court, upon the substantive hearing of the case, as to whom should have custody of the 13 year old R.B. I have had regard to the following matters;-

5. Having heard this evidence I came to the conclusion that it was imperative that I should deal with the issue of custody having regard to this Court’s obligation to consider the infants’ well being in all respects as required by the Act aforesaid.

6. I deliberately deferred giving judgment on, what to my mind is, the essential issue in this case, namely the access to be granted to the Respondent, so that I could assess the Respondent in as reasonable a manner as the elapse of time would permit. My notes as to the Respondent’s attitude to this issue are clear. I regret to say that after two months deliberation I see no reason to change my mind as to the Respondent’s attitude to this problem.

7. The Applicant and his Solicitor (Mr. Shatter) agree that the Respondent ought to have access. There are two problems in seeking to resolve the matter; (a) the Respondent’s attitude and (b) the child's attitude: The Respondent insists on having access subject to her conditions. The child will not agree to these.

8. My view is that a 13 year old is too immature to make this decision. However, the problem is not easily resolved because of the Respondents conduct to the child prior to these proceedings and her continued insistence on determining how and where access will take place.

9. Turning to the evidence; The Report and evidence of Dr. Cummisky is compelling in her views and recommendations. I accept same and am in agreement with same and will, in this judgment, seek to give effect to same.

10. The eldest son is a mature 19 year old, a credit to both parents. He is in 3rd level education and has altered his life substantially to adjust to his parents disagreement. An outstanding sportsman in his field he has chosen to give this up as part of his effort at coping with the family’s problems.

11. He was pleasant, honest, insightful and I am happy to rely on the undoubted discretion he displayed as to his parents and their problems.

12. I was most reluctant to interview R.B., the subject of this case. He, I am glad to report, had similar reservations. He is a fine young man of 13 years. There is a conflict between the Applicant and the Respondent as to his schooling. There appears to be a conflict on the part of the Respondent with every matter concerning this child. He, for his part, is frank, clear and to the point. He likes his school. He wants to remain there. He is happy there. He fully participates in the educational syllabus and is greatly taken with his sporting pursuits. Immediately after school Monday’s to Friday’s he plays soccer and rugby. Thereafter, he is collected and returned home where he has his dinner and engages in his homework. He was not happy for this term to attend a psychologist.

13. Speaking with this young man, I am satisfied that he has had and retains a deep sense of justice concerning the problems between his parents. Over the past two years his dignity has been affronted by the Respondent’s conduct. On the balance of probability I accept the Applicant’s evidence as to the Respondent’s conduct up to and including the hearing of this case. The mother’s conduct has been hysterical before the Interim Order was made by O’Sullivan J and remains of that nature including the days when I heard the matter. The child has been affronted to his core by the unhappy events which have occurred and by the conduct he has witnessed from the Respondent before he left what was then the family home.

14. I concluded, from my interview with him, that he is mature for his years. His views were expressed in a firm and dignified manner.

15. In the result I accept the Applicant’s evidence as showing what has occurred between the Applicant and the Respondent on the balance of probabilities. I have no hesitation in awarding custody of R. B. to the Applicant and have no doubt that this is in R.B.’s best interests having regard to the provisions of the Act aforesaid.

16. The next issue for consideration is the access the Respondent ought to have to her son R. B.

17. The Applicant and the Court agrees with Dr. Cummisky’s recommendation that liberal access be granted to the Respondent as set out in her report. However, this must have regard to the last paragraph of those recommendations which, on the evidence, I treat as serious.

18. The child has major reservations about his mother taking him away. He has major reservations about the conduct of his stepbrother C. And I note from the Interim Order of O’Sullivan J that he granted an Injunction restraining C from having anything to do with R. B. The child does not want to be regimented, as he sees it, by the Respondent with other members of his extended family. The Respondent is insisting on this course of action which I deem to be unwise in the extreme. It is perfectly clear that bridges have to be rebuilt between the Respondent and the child.

19. I regret that I have to come to the conclusion that the Respondent is not concerned for the well being of R. B. She is blind to his needs, and has been for some 2 years. She sees only her own needs. She is a law unto herself. She has no idea of the affront she has caused her child.

20. Any Court would have regard to the position of a person, such as the Respondent, who’s second marriage is under challenge. However, to take this upset out upon her two children is understandable yet not to be countenanced by this Court.

21. I have therefore come to the conclusion as to how this Court ought to deal with the problem of an intractable mother and very definite child.

22. I consider that R. B. needs a breathing space following my decision on the 20th of December, 2000 that he remain in the custody of his father.

23. He does not want his sporting activities to be interfered with.

24. I have decided that he and the Respondent visit with an agreed psychologist. R the eldest son has found this a worthwhile experience with the psychologist in question and he continues to attend this psychologist as it helps to accommodate his parents problems. It will be for the psychologist to determine whether the interviews are separate or together.

25. I strongly recommend to the Respondent that she ought to try and understand that her relationship with R. B. is paramount to any German or Irish cultural realities.

26. The relationship with C (the Respondent’s child by her first marriage) is fraught with problems. These ought not to be exacerbated by the Respondent’s attempts to get them together and to get them to relate to each other. This is simply not possible in the present climate.

27. In relation to access. I will therefore direct that R. B. undergoes counselling with a psychologist of his choice after Easter 2001. The mother to participate in this counselling as directed by the Psychologist.

28. The matter may then be re-listed before me at 11 am on Friday the 20th of July, when I will expect a report from the Psychologist together with his recommendations at which stage I hope to be in a position to make firm Orders in relation to access.