High Court judgment
Neutral Citation IEHC 519
Judgment was delivered on April 15th, 2011, by Mr Justice John MacMenamin
An application for the relocation of children from Ireland to Spain with their mother, who was separated from their father, was refused as not in the interests of the welfare of the children.
The applicant was the Spanish mother of two boys now aged 12 and six years old. The mother came to live in Ireland when she married the boys’ father in 1999. The couple separated in 2007, and obtained a judicial separation the following year. They are joint guardians of the children and have joint custody, with the children spending every second weekend from Friday to Sunday with the father, along with two evenings a week from 3pm to 7pm.
The mother sought to move to Spain with the boys, where she would have the support of her family and better employment prospects. This was opposed by the father.
Mr Justice MacMenamin said the father’s conduct towards the mother “has been far below the standards any wife and mother has a right to expect, and his hostility had been a significant contributory factor to the bad relations between them”. He had been verbally threatening to the mother and had been the subject of a protection order and a safety order, which he had breached, leading to the imposition of a term of imprisonment, which is under appeal. He was unemployed and paying no maintenance.
The mother was living in rented accommodation with no income except the lone parent’s allowance and child benefit.
Despite the tension between the parents, the children were very close to both parents, both of whom played an important part in their lives. These facts had to be considered in the light of constitutional and legal principles.
The main focus in the case was the balance to be struck between Articles 40.3 and 41 of the Constitution, he said. Under Article 41 the family was the natural primary unit group of society, and the State guaranteed to protect it. Under Article 40.3 the children had the personal right to have decisions in relation to guardianship and custody taken in the interests of their welfare.
In this and the neighbouring jurisdiction there had been considerable judicial discussion as to whether there was a presumption that a court should give effect to the views of the custodial parent in such cases. The decisions showed that the child’s welfare was the paramount consideration.
A balancing exercise was involved, which must have regard to the constitutional rights of children to have these decisions taken in the interests of their welfare, which included the right to have access to or contact with their parents.
A recent English judgment also emphasised the necessity of obtaining the views of the child having regard to his or her age and maturity.
In this case a consultant psychologist had interviewed the children. He reported that both were cheerful, well cared for, pleasant and friendly. The older boy had special educational needs, but was an insightful, intelligent and articulate boy. The boys clearly had a very close bond with both parents and with each other.
The psychologist’s view was that he could see no reason why the mother’s wish to relocate should be refused. He recommended fortnightly contact meetings alternately in Spain and Ireland. The father did not agree to the parenting plan.
Mr Justice MacMenamin said that such contact, involving the boys travelling from Spain to Ireland every month alone or with another person, and the father travelling and finding accommodation on a monthly basis, was not practical from a logistical or financial point of view. He expressed concern that no adequate expression had been given to the views of the children.
The mother did not consent to his speaking to them and, though she did not have the right to veto it, he did not force the issue.
Mr Justice MacMenamin said he did not think relocation should take place now as it would have the effect of diminishing the father’s relationship with the children. He pointed out that all such orders can be revisited because circumstances can change.
Neil Vaughan Buckley BL, instructed by Brunswick St Law Centre, for the appellant; Gerry Durcan SC and Catherine Lucey Neale BL, instructed by MacCarthy Associates Solicitors, for the respondent.
The full judgment is on courts.ie/Judgments
Irish Times | Mon, Feb 20, 2012 | Link to Irish Times Article