The High Court has upheld an order requiring disclosure of private emails and text messages in a Dublin custody dispute, while restricting how that material can be used.
The case arose during judicial separation proceedings between P. and Q., who married in 1992 and have one child. The father sought sole custody and alleged that aspects of the mother's private adult sexual activity affected her ability to care for their child and created a risk that the child could encounter explicit material.
The mother denied that her private life had adversely affected the child. She also alleged that passwords and access codes for her laptop and private websites had been obtained illegally from a locked safe.
In February 2012, the Circuit Court ordered discovery of specified email accounts, mobile-phone accounts and associated text messages for the preceding six months. The mother appealed.
Mr Justice Michael White recognised that she had a constitutional and European Convention right to privacy. He also stressed that consensual adult sexual activity in private cannot, by itself, justify restrictions on custody or access. The decisive question was whether the activity affected the child's welfare.
A court-appointed expert had reported concerns about boundaries between the mother's adult life and her adolescent child's developing world. The court also noted that the child had inadvertently seen an explicit image involving his mother and her partner.
The High Court held that family law discovery rules apply despite the private nature of proceedings. Although courts should be reluctant to rely on material tainted by illegality, the welfare of a child is the paramount consideration in custody proceedings and could outweigh the mother's privacy interests here.
The Circuit Court order was therefore affirmed, but with safeguards. Disclosed material could be used only to assess the child's welfare, irrelevant material had to be returned, and any dispute about relevance was to be decided by the Circuit Court judge.