Court of Appeal: Records of judge’s meeting with children in family proceedings must be disclosed to parties

About this case:

• Citation:
  [2022] IECA 54
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Maurice Collins

Delivering judgment in the case, Mr Justice Maurice Collins held that the respondent was entitled to have access to all the evidence which the trial judge relied on in making her decision. Further, it was stated that usual practice should be for the patties to agree to terms when children are meeting with a judge in family cases.

Background

The applicant and the respondent were husband and wife. The couple had three children aged 15, 12 and 10 at the time of the proceedings. The marriage broke down and the husband issued judicial separation proceedings.

The applicant was an Irish national and the respondent was a national of another country. However, the family had lived in a third country prior to the break up of the marriage. The respondent applied for orders directing that the children be placed in her sole care and permitting her to permanently relocate the children to her home country. This was opposed by the applicant.

During the proceedings, the High Court made an order for an independent expert report to be provided to ascertain the wishes of the children pursuant to section 32 of the Guardianship of Infants Act 1964. The expert reported that, if the couple could not agree to live in the same country, then the children should be relocated to live with the respondent.

The court also met with each of the children privately, with the meetings recorded on the DAR but not made available to the parties. The meetings were only suggested late in the trial and no terms of engagement were agreed with the court. Ultimately, the court refused the application for relocation on the basis that it was not in the best interests of the children. The respondent appealed the decision to the Court of Appeal.

Following the lodging of the appeal, the respondent applied for the DAR of the trial judge’s meeting with the children. The judge refused the application, holding that the meetings were private and confidential. The applicant supported this point. As such, the respondent also appealed the judge’s refusal to provide the DAR of the meetings.

The respondent submitted that she was entitled to see all evidence which the judge relied on in making her decision. It was said that the judge based her decision substantially on the meetings with the children and the refusal to release the DAR was a denial of fair procedures. As such, it was said that the respondent was prejudiced in her appeal of the relocation decision because she did not have the full evidence to which the judge had access.

Court of Appeal

The court began by considering a child’s right to be heard under the 1964 Act. It was noted that the 1964 Act did not prescribe the manner in which the wishes or views of a child were to be ascertained, although there was a specific mechanism provided in the form of an expert report under section 32. It was further noted that there was several requirements of an expert under the the Guardianship of Infants Act 1964 (Child’s View Expert) Regulations 2018, which clearly suggested that there were complexities in ascertaining the views of a child.

It was held that an expert report was to be “put before the court” which suggested that all parties would have access to same. However, the court decided that it would not express a definitive view on this point.

Critically, the court held: “What can be said about the 1964 Act is that there is not a hint in its detailed provisions of any legislative intention that issues such as those raised by the relocation application could, or should, be determined by reference to evidence not disclosed to the parties or any suggestion that the Oireachtas contemplated that a court hearing proceedings under the Act might ascertain the views of the child on a confidential basis and then rely on those views to reach a decision, without those views being disclosed to the parties or the parties having an opportunity to comment on them.”

Although there was no provision in the 1964 Act for a court to meet with a child, it was accepted that it was a long-established practice for a court to engage with a child to ascertain their views (see In re Mary Elliott (an infant) (1893) 23 Law Reports (Ireland) 504; In re Story, Infants [1916] IR 328; In re Frost, Infants [1945] IR 3).

The court identified a key difficulty in the present case was that the judges and parties had not established the terms on which the court would meet the children. It had previously been held in O’ D v O’ D [2013] 3 IR 189 that such terms necessary for a fair hearing of the matter. The court described this as “highly regrettable”. Accordingly, it had not been established that the meetings would take place on a confidential basis.

It was held that the respondent had a constitutionally-enshrined right to appeal the relocation decision and it was an irreducible minimum requirement that she should have access to all the evidence which the trial judge relied upon in the decision (AP v Minister for Justice and Equality [2019] IESC 47). No judgment could be based on information that was not disclosed to the parties, the court said.

If the transcript of the meetings was not made available to the respondent, then she would have to prove that the trial judge erred in her decision without sight of the full evidence. The right of appeal would be “wholly frustrated” in those circumstances.

Even if the meetings were not technically evidence, it was accepted by the trial judge that she relied on the meetings in making the decision. As such, it was appropriate for the DAR to be disclosed. Further, it was no answer for the appellate court to have access to the transcript if the respondent did not.

The court also rejected a suggestion that disclosure of the transcript would render the children liable to cross-examination. Finally, the court dismissed the submission that the meetings had to be confidential in order for the children to express their real views about their parents. This was described as “an entirely hypothetical argument without any apparent foundation in the facts”.

Conclusion

The court allowed the appeal and ordered the disclosure of the DAR to the parties.