About this case:

• Citation:
  [2023] IECA 154
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Nuala Butler

Delivering judgment in the appeal, Ms Justice Nuala Butler held that the language of s.47 required a pending matter before the court relating to child welfare before a report could be directed. It was not a “self-standing relief” but instead, it was a procedure to be called in aid to assist a court in reaching a conclusion as to the grant of relief sought by a party to the proceedings, the court said.

Background

The applicant and the respondent were husband and wife. The couple had several children, although only one was under the age of 18 and was a few months away from achieving maturity. The marital relationship broke down in July 2021 when the wife left the family home and took the children with her.

The wife relocated from the family home to Dublin and lived there with the minor child and one of the adult children. The minor (X) was transferred from their previous school to a Dublin school. Although all children had a mobile phone, none of the children contacted the father who they blocked.

The father issued family law proceedings in October 2021 and, in October 2022, he issued a motion seeking to have a psychologist appointed to prepare a report on the welfare of X. It was alleged that welfare issues arose due to the children breaking off contact with him and that the move to Dublin made parenting impossible for the husband.

The wife opposed the application. Both parties had diametrically opposing views on the reasons for the breakdown in the marriage which were placed on affidavit. In a High Court judgment, Mr Justice Sanfey determined that he could not resolve any conflicts of fact.

The court went on to make “observations” that the children had not been in contact with the husband since July 2021 despite his claims of having a very good relationship and that X had chosen not to contact the husband but would have tried to organise their return if the Dublin move had gone poorly.

The trial judge held that it would require very strong grounds to require a 17-year-old to undergo the psychological assessment process against their will. Further, it was said that the intention behind the s.47 application was to engage in fact-finding rather than deal with the child’s welfare.

The husband appealed the decision to the Court of Appeal. The main issue in the appeal was whether there was jurisdiction under s.47 to direct the preparation of a report where no specific relief relating to child welfare was sought in the proceedings.

Court of Appeal

Ms Justice Butler held that, in analysing the provisions of the 1995 Act cumulatively, a court had a broad jurisdiction to make orders in relation to the welfare of a child. However, this jurisdiction was not open-ended or unstructured.

The court outlined that the language of s.47 pre-supposed that there was relief sought in respect of the welfare of a child in the proceedings. The court held that the cases relied on by the parties did not directly address the net legal question in the present case (see McG(P) v. F(A) [2000] IEHC 11; AB v CD [2012] IEHC 543; McD v. L [2010] 2 IR 199).

The court stated: “Looking at the language used in s.47, it seems to me that it necessarily requires that there be pending before the court a question relating to the welfare of the subject of the report which (absent a subsequent agreement) the parties require the court to determine.”

The court continued: “It is not itself a free-standing relief, but rather a procedure which may be called in aid to assist a court in reaching a conclusion as to the grant or refusal of other relief which has been sought by the parties to the proceedings.”

The court also noted that the husband was not seeking orders in respect of custody or access to X on account of their age. It was acknowledged that the court could not make any orders in respect of X’s welfare once they turned 18 years old.

In the circumstances, the court held that there was “no reality” that a s.47 could have any bearing on the question of X’s welfare where the court would not be in a position to determine matters before X turned 18. In this regard, it was noted that even if a report was directed, X would likely turn 18 before the matter would be returned before the courts.

Accordingly, the court held that there was no jurisdiction to make a s.47 report in the case and the appeal could be dismissed on that basis alone. The court went on to consider the trial judge’s treatment of the evidence and determined that the husband pointed to no authority which stated that a trial judge must assume the correctness of facts underpinning a s.47 application where those facts are disputed on affidavit.

It was open to the husband to cross-examine the wife on the averments he did not agree with, but he chose not to do so, the court held. There were also matters in the wife’s affidavit which the husband failed to address at all, meaning they were uncontested averments.

While the trial judge may have erred by accepting the wife’s hearsay account of X’s views, this was not determinative of the matter. This was because the merits of the s.47 application were rejected by Ms Justice Butler.

Since a s.47 report would not be directed to the question of X’s welfare, it was not appropriate to make an order for the report. It was also necessary to consider the age of X, who would turn 18 soon. It was said that X had a reasonable entitlement not to be forced to undergo evaluation without ongoing consent.

Finally, the court noted that the husband made concerning allegations about the wife’s mental state and claimed she suffered from a “medical malady”. This had been contradicted by medical evidence but was repeated in submissions. The court would be very reluctant to make a s.47 order (which required interviews with parents) where unsubstantiated allegations of the sort were made.

Conclusion

The court concluded that there was no jurisdiction to make a direction under s.47 for a psychologist’s report where a specific remedy for the welfare of a child was not sought in proceedings.

YB v. ZB [2023] IECA 154