The Court of Appeal upheld a temporary suspension of overnight access between a father and his two children, but overturned a separate order that barred applications about the children’s welfare before a scheduled High Court review.
In a judgment delivered on 23 February 2015, Mr Justice Kelly said the High Court was entitled to suspend overnight access for a few months. The appeal concerned a High Court order made on 12 December 2014, which paused overnight stays and directed that no further application concerning the children be made by way of enforcement or review before 26 March 2015.
The parents, identified in the judgment as M.M. and G.M., have two children. The High Court had previously made the mother the primary custodial parent, with the children living with her in Dublin, and established structured access arrangements for their father, who does not live in the State.
The plan included regular overnight access in Belfast. The first overnight stay, planned for the end of October 2014, did not take place after an encounter between the mother and the nanny provided by the father. The High Court judge found the mother’s approach to the nanny disrespectful and said the confrontation distressed her. The Court of Appeal recounted that finding as part of the background to the December hearing.
At that hearing, Professor Sheehan, who had been involved in facilitating the access arrangements, described the children as distressed by the conflict between their parents. He said they were not frightened of their father, but were fearful of the conflict. The younger child told him: “I want the war to end. I want peace.”
The Court of Appeal said the High Court judge had concluded that forced overnight access would not benefit the children while they were distressed. It found he was entitled to pause overnight stays for a limited period, and declined to interfere with that part of the order. The High Court was due to review access issues on 26 March 2015.
The appeal court set aside the prohibition on applications. Mr Justice Kelly said a literal reading would deny access to the courts on an important question of children’s welfare and would not comply with constitutional norms. The judgment said an urgent welfare application could not properly be barred by that order.
The Court of Appeal therefore allowed the appeal only in respect of the restriction on applications. It did not restore overnight access. The judgment also said the High Court could consider more generous overnight access at the scheduled review, without directing what decision should be made.