Important Judgement on Nullity Application
In a recently published decision (although delivered on the 16th April 2021) in a case of CB v CM, Mr Justice Jordan delivered an important judgement in relation to what documentation a medical inspector appointed in the context of a nullity application is entitled to.
In this case, the Petitioner was seeking that the medical inspector be entitled to have sight of the Section 47 Report that had been commissioned in the context of the proceedings to deal with access in relation to the children.
In delivering his judgement and considering the issue, Mr Justice Jordan made reference to section 47 which provides that a Court can direct a report to be provided to deal with “any question affecting the welfare of a party to the proceedings or any other person to whom they relate”.
He also referred to Order 70 of the Rules of the Superior Courts section ix, which relates to the appointment of the medical inspector for the purpose of a Nullity Application.
He then had regard to the relevant authorities and in particular to the Supreme Court decision of PmcG v AF and the decision of Justice O’Neill in 2002 in a case of TP v SP.
In reviewing the authorities he said that it was clear that the inspector was entitled to interview the parties but not third parties. He said the medical inspector was entitled to access to medical and psychiatric records i.e., hospital admissions, notes, daily notes, discharge records, GP records and notes but was not entitled to factual information from third parties i.e., hearsay.
He formed the view that the provision of the section 47 reports which were commissioned for a particular purpose i.e., the welfare of the children, would amount to hearsay and he directed that the medical inspector was not entitled to access to the interviews and conclusions reached by the Section 47 Assessor.
This is an important decision which clarifies the role of a medical inspector in a Nullity case and the documentation/ information which the inspector is entitled to in the context of a nullity application. It also reinforces the position that in circumstances where a Section 47 Report is commissioned for a particular purpose, that the interviews with the parties cannot then be used in another forum i.e., in the context of a nullity or possibly other applications unrelated to the Section 47 process. It can presumably be assumed that the court would take a similar view in relation to interviews and conclusions from a Section 32 process.
If you have any queries for this or any family law matter, please do not hesitate to contact Brendan Dillon, Erika Coughlan or Aoife Cathcart on 01-2960666.
