THE  HIGH  COURT
HC 265/04		   
 Record Number: 2004/1119 SS

IN THE MATTER OF ARTICLE 40.4 OF BUNREACHT NA hEIREANN AND IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS BY E.G., AND IN THE MATTER OF A.D. (AN INFANT)

Between:
E. G
Applicant			
And

D. D
Respondent	
Judgment of Mr Justice Michael Peart delivered the 9th day of July 2004:

This hearing which, due to commendable effort on the part of both legal teams has taken place at very short notice, and following an order made by me this morning for an order of Habeas Corpus in respect of a one year old boy, A.D, who is the child of both the applicant mother and respondent father. The application this morning was grounded upon a short affidavit from mother in which she set out certain matters leading up to the situation where father has physical possession of the said A.D., and that she has not seen the child since last week-end. Allegations of violence towards her were set out in this affidavit, and it was asserted that she was afraid of the father, and that a martial arts licence had been removed from father on account of some trouble he had been in related to assault. I should say immediately that the allegation about his having a black belt in martial arts has been completely denied by the respondent in his oral evidence, and unless he is a very convincing liar, I have to accept the genuineness of his denial.

I made this application returnable for 7pm this evening, since the possible safety and well-being of the child appeared on a prima facie basis this morning to be potentially compromised, and it was important to ensure that access to the courts was as swift as possible.

It is now after 10.30pm and I have heard a great deal of evidence from both father and mother, and at the outset I must say that I am no longer concerned for the physical well-being of the child. I know that both parents feel deeply for their son, and it is safe to say that the real risk to their son’s well-being emanates more from father and mother’s own rows between themselves, and not as a result of any lack of love or concern for their son, or any risk of harm to him.

I do not propose to detail the evidence which I have heard as time does not permit that. The fact is that following a serious row which occurred in the early hours of last Saturday morning, following mother’s return to the house in which they all lived at that time, and at about 4.30 or 5am, and when mother, on her own admission had had too much to drink, father eventually left the house with the child, and for all practical purposes has not returned except to collect some things for the child. He is living at his parents’ house, as is the child. He is being well looked after there.

There have been a number of serious rows in the past, some involving violence. On some of these occasions mother has struck father, and she in turn says that father has been violent and abusive to her. Accusation and counter-accusation have been made, and it is neither possible nor desirable that I should determine now where the truth lies.

What is certain at the moment is that mother and father, in their own interests, but more particularly in the interests of the child’s welfare and safety, should not live together, without some serious and sustained relationship counselling, if both of them wish to engage in such a process. Their present relationship is one fraught with tension and some aggression, and I suggest that this situation is made worse on occasion by what I have perceived to be a problem which mother may have with alcohol. She will need to be honest with herself in addressing that aspect of her life in the immediate future because, if as I suspect, I am right about that, her problems in that regard are going to get worse, and that has the potential to affect any decision as to whether she is the appropriate guardian of their child. 

However, what I must deal with at the moment is the situation which presents itself now. There is no doubt that under the law, mother is the sole custodian of the chid since mother and father are not married to each other. But I accept father’s evidence that father was under an impression, or at least believed that he was a joint custodian of his child, but he has now accepted that under the law he is not, but can make application to the District Court for such rights. But it is the forum in which that application must be made, and that Court has ample powers to direct such reports as may be necessary, and such other evidence as may be necessary to either award him custody rights, or not as that Court will decide. What he is not entitled to do, no matter how well intentioned he may be, is to take the law into his own hands and achieve de facto sole custody in the way he has attempted. 

I want to say immediately that I accept his evidence that he acted, as a result the serious situation which developed last Saturday morning, out of genuine concern for the physical safety of his son. However, I believe that his son’s safety is compromised only because of the rowing which takes place between him and the applicant. I accept that mother has a deep, genuine and natural love for her child, and would never willingly harm her child, though I am concerned that she would think it appropriate to slap or in any way physically chastise her baby of one year old. She needs to address that habit, and stop doing it immediately, and if she has any difficulty stopping that form of action, she should seek appropriate help in order to alter her behaviour. 

But the fact remains that she is the lawful and sole custodian of the child, until such time as any order is made pursuant to an application by father for rights. The Court, however, in spite of that being the legal situation, does, as Counsel for the father has said, have an inherent jurisdiction to take any step appropriate to ensure that the child’s welfare is not compromised in any way, and while this couple might be living together, those concerns do not at present exist to any degree which requires that custody be taken away from mother. But I have to say that I am concerned about her use of alcohol and the effect which it seems to produce on her when taken to excess, and she will have to address that problem or risk custody of her son being the subject of a Court’s consideration in the future, particularly in  a situation where she is living alone with her son.

At the moment I need to return the status quo ante until such time as appropriate applications are made to the District Court. I do not consider that the applications currently lodged in the District Court for issuing by father as being either helpful or necessary. In an ideal world what should happen now in the interests of their child’s future arrangements with both his parents is that the summonses lodged in the District Court for issuing should be withdrawn, and a fresh application lodged in which father should seek an order relating to his custody rights. If necessary only, and I believe that it may not be necessary, he can apply for access to his child, but this should if possible be arranged on a consent basis, given the fact that father does not work at the moment and mother does, so commonsense would suggest that father should be able to look after the child during the day until mother ceases work. But I know that things are often more difficult than they might appear to me now, but I would earnestly ask this couple to put their son’s welfare first and to put their own relationship difficulties into second place, if they cannot eliminate them completely from the picture. Their baby must not be used as part of the weaponry of warfare between them.

I am therefore going to direct that the child be returned now to his mother, on her undertaking to this Court that she will not reside outside Carlow before the determination of any application by father to the District Court for rights, and if necessary for access rights, and on her undertaking that she will not abuse alcohol, and by that I mean that she will never drink an amount of alcohol which will interfere with or compromise her ability to care properly for her son. I believe that she will willingly give these undertakings, given the concern which the Court is expressing about her possible difficulties with alcohol, given some of her own evidence in that regard about the past.

I also want her to undertake to this Court that pending any order which may be made in the District Court in this regard, she will adopt a reasonable attitude in any discussion between her solicitor and father’s solicitor with a view to arranging forthwith that he will have reasonable access, because I know that he loves their son and will not harm him, and that it is in the best interests of their son that he has the company of both parents as much as is possible.

I also require father to undertake that he will not take the law into his own hands, but will act in whatever way he is advised by his solicitor in relation to applications to the District Court either for rights or for access or both.

Lastly I wish to thank again both legal teams for their commendable skill, and the speed with which they have facilitated the Court’s intervention in this matter at such short notice.