Irish welfare checklist in action in relocation dispute

child contact disputes

As I have said here previously, it can be instructive to look at family court decisions in other jurisdictions. Sometimes it is instructive to see things done in a different way to how the family courts in England and Wales operate. Sometimes, as in the High Court of Ireland decision I am about to mention, it is instructive because the case is dealt with in a very similar way to our courts.

I wrote here last November about the Irish ‘welfare checklist’, i.e. the list of factors to which the court must have regard when deciding whether to make an order relating to a child, such as a child arrangements order in this jurisdiction. As I said then, the Irish version of the checklist is very similar to our own, which is contained in section 1(3) of the Children Act 1989.

The case HOR -v- MR shows the Irish checklist in action, in a case in which the mother was seeking to relocate with the parties’ seven year old son. The court below had granted her application, and the father appealed to the High Court. The case was actually decided last July, but I have only just come across it on Bailii.

The appeal was heard, and refused, by Mr Justice Abbott. In the course of his judgment he went through the checklist. I do not propose here to recite his findings in respect of each of the factors on the checklist (you can read the judgment to see what he says). Instead, I thought I would highlight a few points raised in the judgment, that I think are of equal interest to ‘children cases’ in this country, and not just relocation cases.

The first point to note is the distance involved in the relocation. I realise that the Republic of Ireland is smaller than England and Wales, but I can’t recall coming across an internal relocation case here concerning such a short distance. Usually in this country the relocation involved the parent with whom the child lives moving from one end of the country to the other, a distance of perhaps 350 miles. Obviously, such a distance cannot reasonably be traversed on a daily basis, and therefore has a serious impact upon the relationship between the child and the other parent.

In HOR -v- MR we are not told the exact locations involved, but we are told that “the parties resided in the city” and that the mother “purchased a home in a town in the south west of the outer commuter belt of the city”. We are also told that a round trip between the two locations would be “over 170 km”. By my reckoning that equates to 105 miles, meaning that the two locations are about 50 miles apart. Now, many people commute far further than that each day, so the impact of such a relocation upon the child must surely be considerably less. It is interesting that the Irish court clearly considered the matter to be sufficiently serious, or at least potentially serious, to give it full consideration.

I now move on to a point of general importance in all children cases, and not just relocation cases. One of the checklist factors is, of course, the ascertainable views of the child concerned. In order to ascertain the child’s views he was interviewed by a psychologist, Professor Sheehan. He indicated a preference for living where the mother wished to locate and, tellingly for one so young, expressed a wish that the disputes between his parents should come to an end.

Under the checklist factor of “any harm which the child has suffered or is at risk of suffering including harm as a result of household violence, and the protection of the child’s safety and psychological wellbeing” Mr Justice Abbott mentioned that Professor Sheehan had reported that the father had interviewed the child in relation to his responses to Professor Sheehan’s questions. Mr Justice Abbott had some very strong words to say about this:

“This type of interference with the child is entirely unfair, and places him in a position where he feels bound to adjudicate between the parents or is to blame for the continued differences and acrimony between them. A further adverse effect of this activity by the husband appellant is that when the child is interfered with in this way regarding his accounts to the investigating psychologist, he may be very reluctant to cooperate again with a psychological inquiry and will prefer to remain silent, thereby depriving the court of very valuable evidence in the event of any further inquiries being made on behalf of the court. This type of interference is akin to the offence of contempt in the face of the court by interference with witnesses.”

I think this is a useful warning for any parent tempted to interfere in this way.

Of more direct relevance to relocation cases, but also a matter to consider in many other disputes over arrangements for children, was what was described as the father’s “catastrophizing” the relocation. By this I think is meant that the father was trying to influence the court by exaggerating the negative effects of the relocation, making it seem far worse than it was, and possibly even suggesting that it would have a catastrophic effect upon his relationship with his son. Such tactics are not uncommon in children disputes, and it is interesting to see the court pointing it out in such a clear way.

Finally, it should be pointed out that the mother’s application was in many ways a fait accompli. Prior to making the application she had already purchased a home at the new location, and had even for a time placed the child in a local school there. The father did not object or seek a court order in relation to the proposed relocation when the mother first proposed to purchase the house. Obviously, as Mr Justice Abbott pointed out, the fact that the house had been purchased was a major constraint in the case, and the father’s objections to the move were very much ‘closing the stable door after the horse had bolted’. The moral is clear: if a relocation is proposed, you must decide then whether you object and, if so, act immediately.

You can read the full report of HOR -v- MR here.

Image by John Flannery via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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