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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'S. (D.F.) v. A. (C.) [1999] IEHC 147 (20 April 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/147.html Cite as: [1999] IEHC 147

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O'S. (D.F.) v. A. (C.) [1999] IEHC 147 (20th April, 1999)

THE HIGH COURT

1998 No. 111 M

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF R V O'S AN INFANT

BETWEEN

D F O'S

PLAINTIFF

AND

C A

DEFENDANT

JUDGMENT of Mrs. Justice Catherine McGuinness delivered the 20th day of April 1999.

1. These proceedings concern the future of a child, R, whose parents are unmarried but who cohabited for a period of some four years. R was born on the 18th October, 1994 and is now 4½ years of age.
2. In his special summons the Plaintiff father seeks an Order pursuant to Section 11 of the Guardianship of Infants Act granting him "sole care, custody and control" of his daughter, together with an Order "determining the extent and nature of the access (if any) to be enjoyed" by the child's mother.
3. In her defence and counterclaim, the mother also seeks sole custody of the child, with an Order regulating access.
4. In circumstances to which I shall refer later, an Order was made on 24th October, 1997 by the District Court in W appointing the father as a guardian of the child. A further Order granting the father joint custody of the child was made on the same day. Both Orders were made by consent. The joint Custody Order has since been varied by an Order of this Court made on the 31st July, 1998 granting sole custody to the Plaintiff.
5. Senior Counsel for the mother, Miss Clissman, informed the Court that the mother accepted the father as joint guardian of the child. In seeking custody of the child, the mother did not wish to rely on any superior constitutional rights which she might claim. She wished the matter to be decided solely on the basis of the welfare of R. This approach is to be welcomed, particularly in a case where there is a very deep level of hostility between the parties.

Under Section 11(1) of the Guardianship of Infants Act, 1964 "any person being a guardian of an infant may apply to the Court for its direction on any question affecting the welfare of the infant and the Court may make such Order as it thinks proper". Under Section 11(2)(a) such an Order may include "such directions as the Court thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother".

Section 3 of the 1964 Act provides:-

"Where in any proceedings before any Court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration".

Under Section 2 "welfare" in relation to an infant is defined as comprising "the religious and moral, intellectual, physical and social welfare of the infant".

6. The factual background of the proceedings may be summarised as follows. The Plaintiff, O'S, who is Irish, is employed in a full time position by the South Eastern Health Board. He has, in addition, a small private practice. He is some 40 years of age and is a Roman Catholic. The Defendant, Mrs. A, who is English, is a nurse by profession. She is qualified both as a general nurse and as a psychiatric nurse and has held nursing management posts in England. While in this country she has worked part-time in her profession from time to time. She is 36 years of age and an Anglican.
7. The parties met in England in or about May 1993. At that time O'S was employed in the Birmingham area, specialising in the treatment of drug and alcohol abuse. Mrs. A was employed in managing a unit in the voluntary sector which also treated substance abusers. She was then married to K A, a Community Psychiatric Nurse, and she has one daughter by her marriage, L, who was born on the 13th May, 1986 and is now nearly 13 years of age. Marital difficulties apparently existed between A and her husband and they separated in or about December 1993, Mr. A leaving the family home. Mrs. A has at all times had custody of L, who has access to her father from time to time. Mr. and Mrs. A have obtained a divorce in the English Courts, the decree absolute having been pronounced on the 7th April, 1997.
8. In the latter part of 1993, the Plaintiff and the Defendant developed a relationship which became a sexual relationship. Mrs. A became pregnant with R in January 1994. At first D O welcomed the pregnancy but during the Spring of 1994, he became somewhat ambivalent about the situation and suggested that the couple should consider all possibilities open to them including the termination of the pregnancy. Mrs. A alleges that he pressed her to have an abortion; he denies this. In any case, she refused to consider terminating the pregnancy on grounds of principle.
9. In May 1994 the lease on O'S rented accommodation ran out and he moved into Mrs. A home, which had been her family home during her marriage and which was jointly owned by herself and her husband. There were considerable difficulties during the time while the parties lived in this house. Among other things, they disagreed both on household management and on the upbringing of L. O'S expressed his uneasiness at living in Mrs. A former matrimonial home. In August 1994 the couple and L moved into a property owned by O'S in Droitwich. R was born on 18th October, 1994. O'S was present at the birth and is registered as her father on the birth certificate.
10. Mrs. A has been an insulin-dependant diabetic since the age of 10 years. A great deal of the evidence and much of the conflict in the lengthy proceedings before this Court turned on the nature and severity of her illness, to which I shall refer in more detail later. It appears that at some time prior to R's birth, she experienced difficulties (as did many diabetics) in changing from porcine to human insulin and she subsequently reverted to the use of porcine insulin. She was, with the encouragement of O'S, most anxious to breast-feed her baby, R, as it appears that this would help to prevent the child from developing diabetes. In the early weeks after R's birth, Mrs. A suffered three severe hypoglycaemic episodes in which she lost consciousness. However, she persisted and in the event breast-fed R for in or about a year. O'S was at all times very conscious of the symptoms of Mrs. A's diabetes and the dangers of hypoglycaemia.
11. During 1995 the Plaintiff expressed a wish to return to Ireland to practise his profession. His mother resides in the Cork area and has a holiday home in Co. Waterford. (His father died when the Plaintiff was fourteen).
12. The Defendant's family reside in Scotland. Her father is a Sergeant Major in the British Army and the family had lived in a number of countries, including Germany and the Middle East. At one time the family had lived in Northern Ireland. Mrs. A liked Northern Ireland and was not averse to moving to Ireland. They visited the Plaintiff's mother for a holiday which Mrs. A enjoyed. O'S applied for and obtained his present post and the family moved to Ireland in the Autumn of 1995. After staying for a short time in Mrs. O'S's holiday home, they moved to rented accommodation. In Spring 1996 they purchased a house in their joint names. O'S's salary of in or about £80,000 per annum was the main income of the household. He also earned a relatively small amount from private practice. During holiday periods on a few occasions he took up locum work in England to help finance the family outgoings and to pay off debts on the couple's property in England. Mrs. A worked part-time, though not continuously. She gave evidence that her total earnings were about £7,000. L attended the local National School. Mrs. A took the major role in caring for the household and children. R was in part-time attendance at a crèche.
13. The relationship between the parties was still difficult; in particular, there were severe disagreements about the upbringing of L. The parties attended some counselling with the ACCORD marriage counselling organisation. They decided that they would have another child; they hoped for a son. During the pregnancy, Mrs. A was referred by her obstetrician to Dr. Garrett Fitzgerald, a diabetes specialist, who monitored her condition and expressed himself very pleased with her control of her disease. It is clear that she was in good physical health during the pregnancy but the relationship between the parties did not improve. In particular, they acquired an Irish wolfhound, and much disagreement arose about the management, feeding and hygiene of this very large dog.
14. The parties' son Et was born by Caesarean section on the 6th August, 1997. He appeared to be a healthy baby and at his six week check up on the 17th September, 1997 he was found to be in perfect health. Mrs. A was breast-feeding him and, as in the case of R, she experienced some severe hypoglycaemic episodes leading to unconsciousness. One of these occurred when the baby was two weeks old, another when he was four weeks old. She sought the advice of Dr. Fitzgerald; whether she followed this advice is at issue between the parties. During this perioO'S left the joint bedroom and slept in an adjoining room. Tragically, on the morning of 18th September, 1997, at 6.45 a.m. O'S came into his wife's bedroom and found the baby E dead in his wife's bed. Mrs A had suffered a severe hypoglycaemic episode and was unconscious. O'S, while accepting that the child's death was accidental, ascribes it to his wife's hypoglycaemic attack. He describes the scene in his Affidavit thus:-

"I found E wedged under the right side of the Defendant while she was having an agitated hypoglycaemic coma and was writhing and moaning on top of him".

15. He repeated this description in oral evidence. The child's body was brought to the regional hospital and a post-mortem was carried out by Dr. Bob Tait. He gave as the cause of death on the death certificate sudden infant death syndrome or cot death. He informed the parents of this and gave a report to the Coroner. Allegation and counter-allegation has been made about the cause of E's death. Dr. Tait gave evidence before me. He accepted that "cot death" was not an exact diagnosis - it was equivalent to saying that all available information had been taken account of and assessed, but that the cause of death was unexplained. He also gave evidence, however, that there was no sign of accidental injury and no evidence of suffocation. It was suggested that he gave "cot death" as a cause of death in order to spare the family's feelings. He denied this.
16. The death of E was an extremely traumatic event for all the family. After the funeral the relationship between the mother and father became even more difficult. Mrs. A suffered more severe hypoglycaemic attacks; the number of these is at issue. On 24th October, 1997, the parties attended at the District Court and the Order appointing O'S as joint guardian and granting him joint custody of R was made by consent. Mrs. A says that she was in a hypoglycaemic state at the time due to the delay in making the Order and the fact that she had been unable to eat any lunch. She had legal advice prior to the making of the Order.
17. On the urging of O'S, A had attended Ms. Maureen O'Donovan, psychotherapist, during her pregnancy with E. After E's death, the Plaintiff was anxious for the Defendant to attend a psychiatrist. They both went to see Dr. Tony O'Flaherty, Consultant Psychiatrist of St. Patrick's Hospital, Dublin, and he referred Mrs. A to Dr. Sinéad O'Brien of St. Patrick's Hospital and Trinity College Dublin. Dr. O'Brien, who first saw Mrs. A in December 1997, found her to be seriously clinically depressed, fragmented, distraught, and highly anxious. She was concerned lest she become actively suicidal. The relationship between the parties deteriorated still further; O'S stayed out of the family home on most evenings and he admits that at this stage he was drinking heavily.
18. In late March 1998 the Plaintiff went to France for a few days for a professional conference. On the 26th March, 1998, the Defendant, having sold the family car and some of the family furniture, took the two children and flew to the United States. From there they travelled through Canada to Vancouver, and settled in Surrey, British Columbia. Mrs. A adopted a false name and took quite elaborate precautions to avoid detection. O'S had no idea as to her whereabouts or that of the children. On a number of occasions, Mrs. A telephoned the Gardai and left messages that the children were safe and in good health, but gave no indication of where they were.
19. The Plaintiff carried out exhaustive searches in his endeavour to trace Mrs. A and the children, using the assistance of both statutory and voluntary agents. In or about the end of July 1998, he ascertained their whereabouts and commenced proceedings under the Hague Convention for their return to Ireland. He also commenced the present proceedings in this Court by special summons dated the 7th August, 1998. On 31st July, 1998 an ex parte application was made to this Court and on that date an Order was made by Laffoy J. giving leave to serve the proceedings outside the jurisdiction and granting sole custody of the infant R to the Plaintiff.
20. In response to the Plaintiff's Hague Convention proceedings, the Canadian Court ordered the return of R to Ireland and the Plaintiff brought her back to this country in or about the beginning of August. Mrs. A and L followed, their travel costs having been paid by the Plaintiff. Since then R has been living in the family home in the custody of the Plaintiff. Mrs. A and L are living in rented accommodation. Mrs. A is not employed; her income consists of a Social Welfare payment plus rent allowance, together with periodic maintenance paid by her former husband for the maintenance of L and the normal Child Benefit for L.
21. After R's return from Canada, the Plaintiff was understandably fearful lest she would again be removed from this jurisdiction. He was reluctant to permit any unsupervised access by Mrs. A to R. One supervised access visit was permitted on 27th August, 1998. The two children were also given a few opportunities to meet each other under the supervision of friends of the Plaintiff.
22. On the 9th September, 1998, Mrs. A made an ex parte application at a Vacation sitting of this Court for an Order granting her access to R. By chance Junior Counsel for the Plaintiff was present in Court and after some negotiations, an Order by consent was made by O'Donovan J. providing for twice weekly one hour period of access subject to certain undertakings. When the matter was returned to Court on 9th October, there was a lengthy list before the Court and a full hearing was not possible. Further negotiations took place and a Consent Order was made by Budd J. permitting access from 3.30 p.m. to 5 p.m. twice a week. At this stage the South Eastern Health Board, who had been providing supervision for the access, expressed the view that no child protection issue was involved and that they did not wish to continue the supervision. However, at the suggestion of Budd J., they continued to supervise until the matter next came before the Court on the 23rd October, 1998.
23. On that date there was a hearing by Laffoy J. of the application for access and an Order was made setting up a regime of access by Mrs. A to R on each weekday afternoon and from 11 a.m. to 6 p.m. on Saturdays. This Order has remained in place to date, the access being unsupervised. There is a certain degree of friction between the parties in regard to the access but it is of a relatively minor variety - complaints that Mrs. A retains some of the child's clothes and complaints that Mrs. A is giving R a substantial meal which means that she will not eat her dinner at home in the evening.
24. The substantive proceedings were heard before me for a period of some twelve days. In their respective Affidavits and during the course of the hearing before me, the parties made very serious allegations against each other. It is clear that their present relationship is marked by very deep hostility, not to say hatred. Both parties made certain efforts during their oral evidence to offset this impression and to give some sort of credit to the other party. Mrs. A was probably more successful in this effort but I have to say that I did not find it convincing on either side. I was left with the impression that any concession to the other party was made solely for the purpose of impressing the Court. The nature of the present relationship between the parties augurs very badly for the future of R and indeed also for her sister, L.
25. During the course of the hearing, Counsel for Mrs. A opened to me the judgment of the learned Murphy J. in the Supreme Court in the case of D. v. D. (unreported 9th November, 1998). She did so in the context of Murphy J.'s discussion of the function of an independent psychiatrist who has assessed children for the benefit of the Court, and I shall refer to this aspect of his judgment at a later stage. At this point I would refer to his dictum in regard to conflict of evidence between parents in this type of case, where he stated (at page 7):-

"It is erroneous to believe that it is necessary for a trial Judge to resolve every issue which emerges in the married life of a couple to enable the important decision as to custody to be determined".

26. I have no difficulty whatever in accepting the dictum of the learned Murphy J. However, in this case where the hostility of the parents is so extreme and the allegations which are made are to a high degree relevant to the welfare of the child, it is necessary that I survey at least the main areas of conflict.
27. The Plaintiff, O'S alleges that Mrs. A is unstable both physically and mentally. He lays very great emphasis on the danger to R arising from Mrs. A's diabetes. Not only does he claim that it has been, and is, poorly controlled; he blames Mrs. A herself for failure to manage it by eating a proper diet and for allowing herself to suffer severe hypoglycaemic attacks leading to unconsciousness. This accusation reaches its most extreme in his description of the death of the baby E. He told the Court, as apparently he told quite a number of other people, that the child's death was an accident in that Mrs. A did not purposely kill E, but it is abundantly clear to me (and, I am sure, was clear to others) that he blames her for her failure to control her diabetes which, he believes, led to her overlaying the child.
28. O'S describes Mrs. A as suffering from frequent hypoglycaemic comas during the period between E's death and her flight to Canada. He mentions fifteen episodes; she admits to two. On two occasions he took photographs of her while she was unconscious; he says that this was because she would not accept that she was suffering from comas. Mrs. A claims that on one of these occasions Mrs. Ethna Early, the local pharmacist, was present when the photographs were taken. Mrs. Early in her evidence stated that she was present in the house but that she was not in the room when the photographs were taken. These episodes occurred shortly before Mrs. A's flight to Canada.
29. O'S in the course of his evidence before me laid great stress on his own suffering when Mrs. A suffered hypoglycaemic attacks in the period after E's death. He described them as bringing back the terrible experience of finding E dead. He was clearly greatly affected by this and broke down in the witness box on a couple of occasions. To some extent his concern seemed to be more with his own suffering and less with the threat to Mrs. A's health which such attacks represented. His attitude was virtually one of suggesting that she purposely brought on these attacks in the knowledge of the suffering which they caused him. This I do not accept.
30. From the point of view of the welfare of R it is of more importance that O'S repeatedly expressed his fear that if Mrs. A had custody of R she would continue to suffer severe hypoglycaemic attacks and that only the two young children would be present in the household to manage the situation. He was aware that L had a certain amount of knowledge as to the management of her mother's diabetes. However his evidence was that Mrs. A's hypoglycaemic attacks were a source of considerable anxiety to L. He felt that the management of attacks which could lead to unconsciousness and coma was too great a responsibility for a girl of thirteen. Such episodes could also be both frightening and dangerous for R.
31. O'S's second main criticism was in the area of both child management and household management. A great deal of his own evidence, and that of a number of witnesses whom he called, dealt with what he perceived as weaknesses in A's care and upbringing of L. He felt that no "limits" were set for Laura, that she was allowed to behave as she liked, that she was not required to take any responsibility for looking after her own clothes and possessions, and that both her school attendance and commitment to schoolwork left much to be desired. Clearly his fear is that if Mrs. A is given custody of R her upbringing will be, in his eyes, equally haphazard. When the parties were living together in England efforts were apparently made to provide a more systematic set of "limits" or rules of behaviour for L. O'S feels that at first this went well and that L responded willingly enough. However it is clear that as time went on things grew more and more difficult, and the parties ideas on the upbringing of L and R became more and more diametrically opposed.
32. O'S was also critical of Mrs. A's methods of household management, in particular the provision of a wholesome and healthy diet for the two children, whom he felt were being fed in the main on junk food. He also objected greatly to the Irish wolfhound being fed in the kitchen and to the fact that it was not fully house trained; he saw this as being extremely unhygienic and a danger to the children's' health.
33. Above all O'S stressed Mrs. A's cruelty and lack of responsibility in abducting the children to Canada. This incident was naturally a terrible shock to him. He came home to find not only his child gone but, according to him and his witnesses, his family home stripped of virtually all its contents and flooded, the dog tied up in the house unfed and wild, his car sold and everything in chaos. He mentions the details that a lock of E's hair was trodden underfoot and that his family photographs were gone. His son had died and he had now lost his daughter.
34. Mrs. A in her evidence described her life with O'S as one of increasing stress and unhappiness; indeed, apart from the first few months of their acquaintance, she finds little good to say of the relationship. When O'S moved into her house in England she describes him as spending much of his time lying in bed and as giving no assistance in the running of the household. At the same time she says that he was extremely critical of the details of her housekeeping such as the organisation of her kitchen cupboards. She accepts that at the beginning O'S was helpful with L but goes on to give an account of his behaviour with L and with regard to the household which could only be categorised as obsessional. She describes him as insisting on L tidying her room to the extent that her shelves were labelled as to their contents, as refusing to let her leave her room until it was tidied to his satisfaction, as dragging her out of bed at night to lift a pen she had left lying in the sittingroom. Mrs. A produced a series of "lines" which she said L had been forced by O'S to write apologising for minor failures in tidiness. (It should be said that O'S completely denied that he had ever asked the child to do this, and indeed cast doubt on whether the "lines" were in fact written by L.) Mrs. A was critical of O'S for insisting that L remove her school uniform and hang it up neatly as soon as she returned from school and feels that he went too far in wanting L to clean her own shoes and make her own lunch; Mrs. A felt that these were tasks a mother should undertake. She accuses O'S of checking the garden each day to make sure that all dog excreta had been cleared away. Generally she paints a picture of an obsessive tyrant.
35. Mrs. A also stated in evidence that O'S drank very heavily each evening during their relationship. She produced photographs of him asleep on the sofa after returning from work. These photographs, in my view, fall far short of establishing that he was drunk, rather than merely over-tired, at the time. At the end of the relationship she states that he insisted on her staying with him on account of R and threatened that he would keep the child if she left. She also suffered extremely at the time of the child E's death. Some weeks after his death O'S told her of finding the dead child under her and made it clear that he believed that she had accidentally smothered E. This, not unnaturally, greatly added to her unhappiness. She felt that O'S had a position of power and influence in the community and that she herself was powerless in the situation. It was from this situation that she fled to Canada. In her evidence to this Court she described her flight as a sudden decision acted upon on the spur of the moment. Under cross-examination it became clear that this was not entirely true. She had laid quite careful plans in advance in working out where in Canada to seek rented accommodation, in advertising the family furniture for sale in a local paper and in contact by phone with a close friend in England. I would have to say that I found this aspect of her evidence less than reliable. She said, for example, that she found the town of Surrey outside Vancouver "in L's atlas"; Surrey is not in fact marked even in large and detailed atlases that would be obtainable in this country let alone in a school child's atlas. The matter of her sale of the furniture and the state in which she left the house is still far from clear. In her affidavit sworn for the Canadian Court in the Hague Convention proceedings she made allegations of serious domestic violence against O'S. When questioned about these episodes in this Court they were reduced to minor accidental blows.
36. Both parties called witnesses. O'S's witnesses included his mother and a number of personal friends. While they had reservations about Mrs. A's general behaviour from time to time their evidence did not have particular relevance to her ability to care for R. The Plaintiff's mother was very fair in her evidence. She was perceptive enough to see from an early stage that the parties were unsuited to each other and that the relationship would not be a lasting one. Her views on the children's upbringing are those of her own generation but are imbued with considerable common sense and it is clear that the relationship between her and her granddaughter is a good one. She felt that Mrs. A was somewhat lacking in common sense and was not always strictly truthful, but she was far from being overly critical.
37. Two teachers from the School which L had attended gave evidence; both felt that she had ability and imagination but that she was poorly motivated and disorganised as far as school work was concerned. Her class teacher, Ms F, felt that too much responsibility rested on L at home. Both teachers were concerned that L had left school without any notice when her mother brought her to Canada. They had, of course, no direct knowledge of R and their evidence was of relevance only in so far as it touched on Mrs. A's qualities as a mother.
38. Ms H, the manager of the crèche which is attended by R, gave evidence that R was in general making good progress although she had been somewhat disturbed for a while after her return from Canada. I was impressed by Ms H's evidence and felt that she had a high degree of understanding of and commitment to the children in her care. Evidence was also given by Ms T F who now assists the Plaintiff in caring for R at home during the early evenings. Ms F has no formal qualifications but as one of a family of fifteen children she obviously had both experience and understanding of young children. She tellingly describes the child's stressed state after her return from access periods with her mother and the child's acting out with her doll a mother's reassurance of her love for her child. It also is significant that she describes R's eating problems after returning from her mother to her father (an area of conflict between the parents) but said that these difficulties had completely disappeared when the child was being cared for by her grandmother during the course of the hearing before this Court.
39. Mrs. A's witnesses were in the main professional experts. Ms Maureen O'Donovan a Clinical Psychotherapist had treated Mrs. A for a time during her pregnancy with E and after E's death. She had been asked by both parties to help them in improving their relationship but had had only one joint meeting with them prior to E's death. She felt that Mrs. A was deeply depressed and felt herself to be in the power of O'S. Mrs. A feared that O'S wanted to label her as suffering from psychiatric illness and that his position would enable him to do this. She believed that O'S would also be able to influence the Court system in this country and that there was no point in trying to struggle against O'S. Ms O'D felt that Mrs. A's mismanagement of her diabetes was not deliberate and was due to stress. After E's death she suffered terribly as a result of O'S's accusations against her.
40. After E's death O'S visited Ms O'Donovan. She knew that he was in terrible pain but felt he had a destructive way of showing his pain; he was also drinking heavily. She felt he also badly needed help but was unwilling to seek it. She quoted O'S as telling her in October 1997 that Mrs. A was "an evil and poisonous woman".
41. Dr. Sinéad O'Brien, Consultant Psychiatrist, had also treated Mrs. A. She first saw her on the 15th of December 1997 when she was suffering from very severe depression. She described her as fragmented and having serious suicidal ideation, and possibly being in actual danger of suicide. She too stressed Mrs. A's feeling of powerlessness vis-à-vis O'S. By February 1998 she was little improved. Dr. O'Brien had seen Mrs. A since her return from Canada and was continuing to treat her. She was very much improved and approaching normal health.
42. John Martin Social Worker of the South Eastern Health Board gave evidence of having supervised access between R and L. He felt that the mother/child relationship was appropriate, warm and loving. He saw no need for Health Board intervention. Sister P who is the Principal of the Secondary School in which L now attends felt that L was an intelligent and well mannered pupil, but she had had many gaps in attendance which appeared to be due to transport difficulties. She felt that L had had many changes of school recently and should not change again in the near future.
43. Dr. Garret Fitzgerald, a consultant expert in the treatment of diabetes, gave evidence that Mrs. A had been his patient since being referred by her obstetrician in March 1997. He was aware of the hypoglycaemic episodes after E's birth and had given advice as to how to control them. In general he felt that Mrs. A managed her diabetes very well. Although she had been insulin dependant for many years she had not suffered any of the possible long term effects of diabetes and thus one could deduce that her disease had been well controlled over time. He felt she was capable of looking after her children from a diabetic standpoint. Under cross-examination he said he felt it was unlikely that Mrs. A was giving him false records or false information. He also, somewhat to my surprise, felt that L would be capable of dealing with a severe hypoglycaemic attack even if it led to unconsciousness and that as a thirteen year old girl she could administer the necessary emergency injections.
44. Expert evidence was also given by Dr. Una O'Donnell, Consultant Child Psychiatrist. It appears that it was agreed between the parties that Dr. O'Donnell be appointed to assess both parties and the children and to give evidence to the Court as to the welfare of R. Certain difficulties arose in connection with Dr. O'Donnell's instructions, her reports and her evidence. Some of these were due to secretarial difficulties which Dr. O'Donnell was unfortunately experiencing at the time. This had the result that neither the parties nor the Court had a full set of reports by the date of trial. Due to the level of hostility between the parties, which unfortunately was all too clearly reflected in the attitude of their Solicitors and Counsel, this gave rise to suspicions about Dr. O'Donnell which, I consider, were unfounded. More seriously, Dr. O'Donnell was not provided with an agreed outline of background information before embarking on her interviews with the parties and the children. It seems to me that such agreed background information should be provided to an independent assessor in all cases. It should not consist of a set of pleadings as these can well contain allegations that are unproven, irrelevant, and merely prejudicial. In such a case as this, where one of the parties is a professional colleague of the assessor, such background information is all the more necessary. What appears to have happened is that O'S provided a lengthy document setting out all matters from his point of view. This was very much in the nature of privileged instructions by a client to a Solicitor and was highly prejudicial in tone. This was sent to Dr. O'Donnell. She stated that she felt that all documents should be seen by both sides and accordingly sent this document to Mrs. A's Solicitor, who promptly - and in my view mistakenly - handed it over to her client. This had, not unsurprisingly, the effect of exacerbating the already bitter state of affairs between the parties. As a result of receiving the document Mrs. A visited the two teachers in the National School and accused them of slandering her - a completely unfounded accusation. Dr. O'Donnell did not, apparently receive any similar document from Mrs. A and therefore O'S was unaware of the various accusations which Mrs. A was to make against him.
45. Dr. O'Donnell stated in evidence that her method was simply to listen to what the parties and the children said to her, to make notes and to report. In her evidence she went through the reports of her interviews and gave her opinions. It was clear that she felt that Mrs. A interacted more naturally with the two children than did O'S. However she did not appear to have been aware that a short time previously Mrs. A had told O'S not to speak to L as L did not wish to speak to him. In these circumstances it is hard to see how a meeting between O'S and the two girls could be other than strained. Dr. O'Donnell laid a great deal of stress on the close and loving relationship between L and R; she described their interaction at length.
46. Senior Counsel for O'S, Ms Dunne, in cross-examining Dr. O'Donnell, strongly suggested that she was prejudiced against . O'S. Dr. O'Donnell clearly resented this and said that she had merely reported what she observed at the various interviews. However, having carefully read such reports as were provided to the Court and reviewed my notes of Dr. O'Donnell's evidence I would have to say, with some regret, that I felt that there was some basis for Ms Dunne's suggestion. Dr. O'Donnell also made sweeping generalisations about the unhappiness of children in crèches for which she gave no authority other than anecdote. Again when speaking of allegations that O'S drank too heavily she stated that "it went with the job". While no doubt it was not really her fault, it was clear throughout the course of the hearing that she was viewed by both O'S and his legal representatives as being a witness for Mrs. A, rather than for the Court. This situation reduced the level of assistance which she could in fact give to the Court. However, it seemed to me that the most important part of her evidence was her description of the relationship between L and R.
47. There were also some items of evidence concerning the period since the return from Canada which gave me considerable concern. Firstly Mrs. A had lodged complaints against O'S with the Medical Councils both of Ireland and of Britain. These complaints have caused investigations to be carried out by both professional disciplinary bodies. The complaints were ostensibly based on O'S's wrongly prescribing a common antibiotic (Augmentin) in Mrs. A's name when it was intended for his own use. On the evidence before me there is no factual basis whatever for these complaints and they appear to be acts of pure spite or vengeance.
48. Even more seriously Mrs. A on the 5th of October 1998 complained to the South Eastern Health Board that O'S was neglecting and sexually abusing R. Marie Ling Social Worker gave evidence of this complaint, which gave rise to a full investigation and case conference. The allegations were found to be completely unsubstantiated.
49. Again both O'S and an independent witness gave evidence that on the 7th of November 1998 in their presence in the local pharmacy R made an overtly sexual remark about her father. O'S was extremely concerned. It is clear that he believed that this remark resulted from "coaching" by Mrs. A. O'S reported the matter to the South Eastern Health Board and it was investigated by Dr. Alice Swann, the well known Northern Ireland expert on child sexual abuse. Dr. Swann did not give oral evidence but her report was handed in to the Court. This report was a clear account of a highly professional and thorough investigation. She concluded that she could find no evidence that the child had been sexually abused or that she had inappropriate sexual knowledge. She advised that O'S should cease bathing with R and he has followed this advice. Mrs. A in evidence said that she could offer no explanation as to why the child had made the original inappropriate remark.
50. All these matters combined create an impression that Mrs. A is making ill-founded allegations with a view to denigrating O'S's character and in particular his suitability as a parent. Unfortunately her attitude is reflected in the various allegations which O'S himself makes against her.
51. I have surveyed the evidence in this case at some length in order to establish the extremely difficult background against which the Court must make any decision as to the future of R. The one hopeful feature present is that R herself still has a very good relationship with both parents and is coping well. This emerges much more clearly from the report of Dr. Swann than from the evidence of Dr. O'Donnell. Dr. Swann summarises her general findings thus:

"There is an acrimonious relationship between the parents, O'S and Ms A. There are allegations and counter allegations so it is difficult to ascertain the true situation. The concern as to the possibility of sexual abuse is, in my opinion, not the central or even important issue in this situation.... In spite of the difficulties between the parents they have been able to maintain an excellent and individual relationship with R.. This child is coping well and shows no evidence of psychological or emotional disturbance currently. It would be my opinion that the circumstances of the death of E are central to this whole situation.

Whilst R is coping well with the situation at present it would be my opinion that the situation cannot be maintained indefinitely, hence a decision has to be made in the near future as to the care and contact arrangements. I would respectfully recommend that such decisions can be made without having to address the possibility of sexual abuse or some type of inappropriate sexual contact.... The circumstances of E's death are obviously a tragic and very sensitive issue. It is my opinion that this has to be addressed with both parties, particularly with Mrs. A. My impression is that this has not been resolved and it could well be that this is a major issue for both parents, particularly Mrs. A."

52. The lengthy evidence which was given before me in this Court would lead me to very similar conclusions. O'S is still suffering from extreme grief due to the death of E and this grief is complicated by the fact that he undoubtedly blames Mrs. A for the child's death. Mrs. A is aware of this and deeply hurt by it. Until some kind of resolution of this matter is reached it is hard for the parties to co-operate at any level in caring for R. It is not for this Court to resolve any conflict between the parties in regard to E's death; the evidence of Dr. Tait, who carried out the post-mortem, is that there was no sign of accidental injury or of suffocation. He attributed Ethan's death to Sudden Infant Death Syndrome and this Court cannot go behind that finding.
53. O'S clearly loves his daughter and has a very good and close relationship with her; this is accepted by Mrs. A. He himself, however, is in real emotional and psychological difficulty. I would have welcomed expert evidence as to his psychological state. He had consulted Dr. O'Flaharty, Consultant Psychiatrist, and he had previously had treatment to assist him in adjusting to the early death of his father, but no expert evidence was given as to his present psychological health. It seems presumptuous for this Court to suggest to a Consultant Psychiatrist that he seek professional assistance, but his demeanour in the witness box would indicate strongly to me that he should seek counselling or some other form of professional assistance to enable him to deal with his grief and his resentment. This would also assist him in his role as a parent of R.
54. O'S is also understandably fearful lest Mrs. A again remove R from this jurisdiction and this is what lay behind his insistence on supervised access after Mrs. A returned from Canada. R is an Irish citizen, domiciled and habitually resident in Ireland. Ireland is her home and it is reasonable that this Court should ensure that she remain in this jurisdiction.
55. As far as R's material welfare is concerned it is important that her father has roots in this country and is in permanent employment here. He has both a permanent home and a considerable income. His mother, Mrs. O'S Senior, lives within a relatively short distance. She is a person of good sense who has a good relationship with her granddaughter and who can, I hope, play an important part in her life.
56. Mrs. A also loves her daughter and has a good relationship with her. The good relationship between R and L is also an important factor. However, as I have already pointed out, there are aspect of Mrs. A's evidence which cannot but cause me concern. As regards her criticisms of O'S's attitude to L, I find it difficult to accept Mrs. A's belief that it is too much to ask a thirteen year old child to clean her own shoes but quite acceptable to ask the same thirteen year old to give her unconscious mother an injection which is necessary to save her life.
57. On the other hand the evidence of Ms O'Donovan and Dr. Sinéad O'Brien give a graphic picture of Mrs. A's depression and the motives which lay behind her flight to Canada. While she also has not come to terms with E's death she is continuing to receive treatment from Dr. Sinéad O'Brien which no doubt will be of assistance to her. She is willing to remain in this country and recognises the importance of the relationship between R and her father. Counsel for Mrs. A, Ms Bolger, in her submissions to the Court drew attention to the "tender years" principle that a young child, and particularly a young girl, should be in the custody of her mother. In this context Mrs. A has the advantage of not being in employment outside the home and being available to R on a full-time basis. As far as Mrs. A's diabetes is concerned it seems to me that O'S's fears are somewhat exaggerated. Dr. Fitzgerald's evidence is impressive and it seems likely that Mrs. A's serious hypoglycaemic attacks in 1997 and early 1998 can be attributed firstly to breast-feeding E and at a later stage to stress and depression. While, despite Dr. Fitzgerald's evidence, I do not think it right that L should have to undertake the responsibility of managing her mother's diabetes, I would hope that Mrs. A, now that her psychological health is improved, will be able to manage her diabetes so as to avoid crisis situations.
58. Mrs. A has no particular connection with this country and no roots here. However, due to her father's career with the British Army, she has lived in a number of countries and appears not to have great difficulties in adjusting to her surroundings. She states in evidence that she is quite willing to continue living in Ireland and I accept this. Her present difficulty is that she cannot continue to live in her present rented accommodation as the owner will require it for letting out over the tourist season. She has, however, put her name down on the local authority housing list and she says that there is quite an amount of property available for renting in the area. If she were to live in the City L's school transport difficulties would be ended since she could take a bus directly to school.
59. Thus the evidence in this case gives rise to certain concerns in regard to the parental capacity of each parent, while each parent in turn has good qualities and both are committed to R welfare. Their theories in parenting are diametrically opposed; this Court can only suggest that they both try to reach a reasonable compromise where limits are set and responsibilities accepted but where positive encouragement would replace what may have been somewhat bullying enforcement and a degree of flexibility replace too rigid a reliance on rules. The greatest problem by far and the most serious threat to R's future welfare is the continuing bitter hostility between the parents and the unresolved grief, blame and hurt over E's death.
60. It appears to me that if R is not to be damaged by her parents' antagonism and hostility both parties should avail of professional counselling and help to assist them to resolve their differences and come to terms with their grief. This is not a matter which the Court can regulate by Orders; I can only ask the parties to think first of R's welfare.

Section 2 of the Guardianship of Infants Act, 1964, defines welfare as comprising "the religious and moral, intellectual, physical and social welfare of the infant". To this list Judges in the past have added "emotional welfare". As far as religious and moral welfare is concerned Dr. O'S states that he is a practising Roman Catholic. Mrs. A throws some doubt on the level of his practice. I feel sure however that Mrs. O'S Senior would have an important and beneficial influence in this area. Mrs. A is an Anglican but takes part in the local Roman Catholic Church choir. She had close church connections while she was in Canada and I accept on her own evidence that she is a sincere believer and has a commitment to religious practice. As far as intellectual welfare is concerned both parties are highly educated and R is clearly an intelligent little girl. It seems to me that both her intellectual and her social welfare will be promoted by her continuing her part-time attendance at her present crèche. I do not accept Dr. O'Donnell's sweeping condemnation of crèches in general and I found Ms H, the crèche manager, an impressive person. By September 1999 R will no doubt begin her attendance at primary school. As far as physical welfare is concerned both parties are medically qualified and well able to provide for this aspect. O'S has a good income and is able to provide for his daughter's needs. As far as emotional welfare is concerned - and this is a most important aspect of welfare - I can only refer to what I have already said in regard to the steps which the parents must take to resolve their difficulties in R's interest.

61. This has been a very difficult case to decide as regards R's future custody. As a general rule where there is deep hostility between the parents I am very reluctant to make an Order granting joint custody, due to the probable inability of the parents to co-operate in caring for the child. This, however, is not an ordinary case and has special elements of sadness. It seems to me that if I were to chose to grant custody to one parent rather than the other there is a danger of adding to the present bitterness and resentment. There is much good in each of the parents and if they accept the joint responsibility of caring for their daughter and promoting her welfare I hope it will encourage them to put their antagonisms behind them. I do not entirely accept the old "tender years" principle; modern views and practices of parenting show the virtues of shared parenting and the older principles too often meant the automatic granting of custody to the mother virtually to the exclusion of the father. I will therefore make an Order granting joint custody of R to both parents.
62. There remains the question of where and with whom R is to live. The present arrangement whereby she is constantly transferred each day from parent to parent seems to me far from ideal and is likely to increase her insecurity and confusion. This is reflected in the evidence of her carer, T F, who I felt had considerable insight into the feelings of the little girl. Her description of R holding her doll and reassuring her of a mother's love was particularly moving. I also take into consideration the importance of R's relationship with L as stressed by Dr. O'Donnell. There is also the practical fact that O'S is in full-time employment. It seems to me illogical that R should be with her mother for most of Saturday at the time when O'S should be free to care for her and develop his relationship with her.
63. Given the practical realities of the situation the best course would seem to be for Mrs. A to collect R from the crèche at the normal midday time each Monday. R should then stay with her mother and L until Friday evening when O'S can collect her after work (say at 6.00 p.m.). She should then spend the entire weekend with her father. Once this system has settled down and R is secure in it, it would be open to the parties to introduce a degree of flexibility to allow R some extra time with her father when he is free. On the whole I feel it would be desirable if Mrs. A went to live in Waterford. The housing situation there seems easier and it will be a help to L's schooling. I agreewith Sr. M that another change of school for L would not be in her best interests. R should go to school locally in W; there is no advantage in her taking a bus journey to school at her age. In any case her school hours in the infant classes will be quite different from those of L. I also feel that it would be in the interests of Mrs. A herself not to live any longer in D - a small community where she has many unhappy memories and some difficult relationships. In W she would also have better opportunities to obtain part-time work in her profession especially once R goes to school.
64. As far as holidays are concerned R should have two weeks holidays with each parent during the school summer holidays. The school holidays at Christmas and Easter - usually about two weeks - should also be divided between the parents. Neither parent should take R out of the jurisdiction of this Court at any time without further application to the Court and R's passport should be handed into Court. Mrs. A has offered to sign on at the local Garda station as often as the Court requires. Normally I would consider any such action unnecessary but in order to allay O'S's present fears I will direct that Mrs. A call to the Garda Station each Wednesday between the hours of 9.00 a.m. and 9.00 p.m. from now until the end of 1999. She need not sign on formally but should reassure the Gardaí of her presence. I hope that by the end of this year the parties will have developed at least a degree of trust and co-operation and this system can end.
65. If difficulties and disagreements regarding R should arise between the parents in the future I would ask them to try to resolve these through some form of mediation - perhaps through one of the social workers who have already been involved in this case. As must have become clear to them during the prolonged hearing of the present proceedings an adversarial battle in Court is probably the worst possible way to resolve questions of custody and welfare. I very much hope that no further application to this Court will prove to be necessary in this case.