Parental alienation not established in custody battle case, judge finds

An estranged couple involved in a "saga of litigation" concerning their young daughter have been urged by a High Court judge to act in the best interests of their child.

Mr Justice Donald Binchy also stressed he will not tolerate any “flouting” of court orders made in the case.

The child was born in another European country some years ago, the woman started divorce proceedings there soon afterwards and various orders were made including over access. After the woman brought the child here when she was about four, the man challenged that.

Issues were referred to the Court of Justice of the EU and the Supreme Court later found the removal of the child here was lawful, she had been habitually resident here for some years and refused to order her return to the other country.

The parties later agreed a settlement, made subject of a High Court consent order in 2017. Further disputes arose leading to both the man and woman making applications concerning the consent order during which each was critical of the other’s behaviour.

The man alleged the woman has sought to alienate the child from him and sought orders so he would see his daughter only in his own country. He said he had had a good relationship with his daughter but it had now “broken”, he had not seen here since late 2017, and was very upset she earlier that year stopped calling him “Daddy”.

Denial

The woman denied alienating the child. She also expressed concern court orders in the other country might require the child to remain there after an access visit and asked The court to direct the man would only have electronic access to the child via Skype and other means.

In his judgment on both applications, Mr Justice Binchy said the evidence fell short of establishing the woman has been engaging in parental alienation but the court would remain “vigilant” and take whatever action was in the child’s best interests.

The focus must be on the future and on the child’s best interests, he stressed. Parents have a duty “to put their differences aside” and to promote good relations between the child and the other parent.

The issue was not where the fault lay for the current relationship between the man and his daughter but what needed to be done to improve it and establish, or re-establish, a loving and enduring relationship between them.

The daughter had expressed opposition to living in the other country and the man’s position ignores his daughter’s best interests, he said. Their relationship could only be re-established by degrees and with professional assistance and it was to be hoped the man would accept that.

Restoring the relationship

A report of professionals who assessed the daughter set out clear steps to restore the father-daughter relationship and made clear the woman would need to encourage the child to have a positive relationship with her father.

Because of the current breakdown of the father-daughter relationship, the judge suspended certain access provisions of the consent order. Future access will be decided by professionals engaged to assist in restoring the father-daughter relationship, he directed.

To ensure the mother would not be in fear of court proceeding in the other country, he affirmed orders aimed at ensuring the Irish courts govern the relationship between the parties and obliging the man to secure those orders in the other country.

Because of document service failures, the judge noted he had earlier dismissed the man’s application to commit the woman over alleged breach of the consent order. The evidence suggested the woman may have decided, some time in autumn 2017, not to facilitate the man’s access to the daughter, he said.

If that was correct, it would amount to “clear breach” of the consent order but it would not be in the best interests of the child to make orders against the woman arising out of that.

There remained a “heavy onus” on the woman to co-operate in re-establishing a good relationship between father and daughter. The man, the judge said, has also acted contrary to the consent order at least in spirit in complaints made by him against the woman in the courts of the other country.

Courts “cannot stand idly by” when parties “flout” their orders and both parties “stand warned” the court will not do so should deliberate breaches of its orders occur in the future, he stressed.