Supreme Court of Ireland Decisions

1. This is an appeal from an order made by Mr Justice Lavan on the 14th day of July 1998 whereby it was ordered (amongst other things):

2. The appeal is grounded on a variety of allegations to the effect that the learned trial Judge failed to conduct the trial properly, fairly and in accordance with the provisions of the Constitution of Ireland and specifically that:-

3. The Applicant and Respondent were married in the Church of the Holy Spirit, Greenhills, Walkinstown in the City of Dublin on the 7th of September 1979. They had three children, namely, E. born on the 20th day of August 1980, R. born on the 27th day of April 1983 and the above named E. born on the 29th day of April 1987.

4. Apart from a brief period when the Applicant and Respondent lived in England they resided and made their family home in Ireland until they migrated to the United States in 1985 where they acquired a family residence in York, Pennsylvania but it is common case that the Applicant was unhappy with her life in the United States. Whether there were additional problems is a matter of controversy. In any event it was decided in August 1992 that the

5. Applicant would return to Ireland with the three children and that the husband, Respondent, would, as he did, travel to Ireland from time to time. During those visits the husband was afforded full access to the children.

6. In 1995 the eldest child, E., determined, with her mother’s permission, to go and live with her father in the United States. In 1996 the Applicant with the two younger children visited the Respondent in the United States. At that stage the son R. opted to stay with his father and that decision was not opposed by the Applicant. Whether the Respondent attempted to impede the return of E. to Ireland in 1996 was the subject matter of some dispute. In any event she did return with her mother to Ireland.

7. In October 1996 the Respondent unquestionably and admittedly removed his younger daughter E.D. from the jurisdiction of this Court and brought her to reside with him in the United States. She remained there until agreement was reached between the Applicant and the Respondent in the course of family law proceedings in the United States and in pursuance of that agreement E. was returned to the Applicant, her mother. Subsequently agreement was reached in the Irish proceedings which facilitated her spending that period of her summer vacation which concluded on the 15th of August 1997 in the United States with her father.

8. In the result the two elder children are now residing with their father in Pennsylvania and E. the above named daughter has been residing for the greater part with her mother originally in Dublin and more recently in Kerry.

9. The existing proceedings were instituted by way of special summons dated the 22 ^nd November 1996 in which the Applicant sought a declaration pursuant to s.15 of the Child

10. Abduction and Enforcement of Custody Orders , 1991, that the removal of the infant E. by the Respondent from the jurisdiction was a wrongful removal within the meaning of Article 32 of the Convention of the Civil Aspects of International Child Abduction and, secondly, an order pursuant to s. 11 of the Guardianship of Infants Act, 1964, granting to the Applicant sole custody of the infant E.. In the circumstances of the case it was unnecessary to make any order under the Child Abduction Act but the controversy in relation thereto and the affidavits sworn by the parties in relation to that issue was part of the material before the trial Judge. The issue as to custody came before Mr Justice Lavan on the 12th and 13th March 1997 and transcript of the evidence consisting in part of the examination of deponents on affidavits sworn by them was made available to this Court. In March 1997 the matter was adjourned to enable an assessment to be made by Dr Gerard Byrne, consultant psychiatrist, of the parents and their children. The psychiatrist interviewed the parties concerned over a period of months and his report to the Court is dated the 1st day of May 1998. The hearing before Mr Justice Lavan resumed on the 14th July 1998 and Counsel’s note of the evidence given on that date and the ex tempore judgment of the trial Judge has been approved by the parties and by the Judge.

11. That the marriage between the Applicant and the Respondent is at an end is now certain. When it ended is one of the many points of disagreement between the parties. In our changing society the breakdown of a marriage is no longer exceptional or embarrassing but it continues to be painful for the parents and devastating for the children. Humane legislation has been enacted to regulate relationships between the estranged parties. Judicial facilities and social services where necessary are put at the disposal of those affected by the tragedy of matrimonial breakdown. But nothing can solve the essential problem relating to the children.

12. They need and are entitled to the care and affection of both parents in a united family. By

13. The learned trial Judge gave custody of E. to her father and directed that access by the mother to the child should be determined by the American Courts. I fully appreciate the hurt which this decision will inflict not only on the mother but also on the daughter. Of course custody to the mother would have had a corresponding effect on the father and again on the child. On balance I take the view that the learned Judge was correct in his decision to award custody of the child to the father. Certainly I am satisfied there was nothing in his decision or the manner in which it was reached which would justify this Court in reversing his decision or directing a rehearing of the issue.

14. It is clear that Counsel on behalf of the Applicant/Appellant was aggrieved by the rulings of the learned trial Judge which curtailed her cross-examination of the psychiatrist. In a very full report Dr Byrne had set out the written material which was available to him and detailed summaries of the interviews which he had with Mr D., Mrs D., the three children, A.T. (sister of Mrs D.) and Ms E.M. sister-in-law of Mrs D.. The Doctor records his note of statements made by each of the interviewees in response to questions asked by him of them. It was his conclusion that Mr D. was “better able to understand and respond to the children’ s needs” and it was his impression of Mrs D. that “she has found it difficult to place the children ‘s needs ahead of her own” . He did expressly refer (at page 21 of the report) to certain actions on the part of the mother which, though not serious in themselves, had given rise to anxiety of

15. Whilst the recommendation of the Doctor favoured the father against the mother it is difficult to see that there was anything in his handling of the information before him which was unfair or anything in his analysis or recommendation which could or did mislead the Court. The submissions made by Counsel on behalf of the Applicant were primarily to the effect that “evidence” obtained by the Doctor from the father was not “put” to the mother nor was she afforded the opportunity of giving evidence in relation thereto. It was contended that this was unjust and indeed was indicative of a bias on the part of the medical expert. In my view this argument is based upon a misconception of the role of the medical expert in proceedings of this nature. Whilst the psychiatrist did assemble a body of facts to enable him to carry out his assessment and did invite the persons whom he interviewed to express opinions on various matters of fact whether agreed or in dispute he was not in any sense determining matters of fact nor were the procedures adopted by him comparable to those of a court of law or subject to review by reference to criteria appropriate to such procedures. Whilst it may be tempting

16. The general body of evidence comprised in the affidavits, the transcript of evidence and the opinion of the psychiatrist provided ample material for the learned trial Judge on which to make the difficult decision as to which of the parents should have custody. It is erroneous to believe that it is necessary for a trial Judge to resolve every issue which emerges in the married life of a couple to enable the important decision as to custody to be determined. Indeed it is for that reason that I refrain from further comment on the issues which have emerged during the two years in which these proceedings have been in being. The decision as to custody has been made and should be implemented without further delay and hopefully in accordance with the good sense shown in the two agreements previously reached between the parties in relation to E.’s travelling to and from Ireland and the express recommendations

17. I would dismiss the appeal.