The High Court has directed that a report be obtained on a child’s welfare in proceedings concerning a proposed move from Ireland, while declining to decide whether the child may leave the jurisdiction.
In a judgment dated 9 November 2005, O’Higgins J. allowed the father’s appeal against a Circuit Court order that had refused a report under section 47 of the Family Law Act 1995 and refused to restrain the mother from removing the child. The Circuit Court had held that the issue was res judicata, meaning it could not be reopened.
The parents, identified in the judgment only as J.E.N. and M.E.N., married in the United States in 1996 and have one child, identified as B. The judgment says they moved to Ireland in September 2003 after living in Colorado and Cyprus. A District Court consent order in February 2004 provided for joint custody and access, and said the mother could take the child to Fort Collins, Colorado, after June 2004 if she gave the father advance information about travel, residence and schooling.
The father later applied to prevent the child’s removal, saying he had agreed to the order on the mistaken belief he could find suitable work in Colorado. That application was struck out in October 2004 after submissions. The High Court judge found there had been no determination of the merits of removing the child. The judgment also records that mediation did not succeed and that a mediation agreement said it was preferable for the child to finish the 2004/05 school term in Ireland.
The mother argued that the later proceedings were barred by the earlier decisions and amounted to an abuse of process or oppressive litigation. The judge rejected those arguments. He said the proceedings concerned different causes of action, the child’s welfare could require reconsideration, and there had been no substantive hearing on the merits of removal. He also noted evidence of some change in the child’s circumstances and the potential serious consequences of a move where one parent was likely to remain in Ireland.
The court concluded that a section 47 report was highly desirable, with the child’s welfare central to that assessment. The judgment does not state that the report had been completed or make a final decision on relocation or the restraint sought. The judge acknowledged that obtaining a report would prolong stress for both parents and cause particular hardship to the mother.