One would assume, that when a court order has been made in relation to access, and that access order has been breached, that the court will automatically enforce that Court Order.
This is not necessarily the case and this was made very clear in a recent Court of Appeal judgement.
This was a case where the husband brought an enforcement application against the wife in circumstances where when his daughter was thirteen and a half years, she refused to come on any further access visit with him. He claimed that the reason the daughter did not come on access visits was because his wife was encouraging the daughter not to come on visits whereas his wife was arguing that it was the husband’s revelation to his daughter that he was re-marrying that was the cause of the daughter’s decision not to go on any further access visits.
The husband brought an attachment and committal application and brought an application under the Guardianship of Infants Act. The relevant section in the Guardianship of Infants Act is section 18(a), and the Court of Appeal went through the section very carefully. The High Court had found that the wife was not to be blamed for the daughter’s decision not to attend access visits. This was on foot of a report from a section 32 assessor.
The husband, who was not legally represented in the High Court application, but was subsequently legally advised in the appeal to the Court of Appeal.
Judge Senan Allen who was the judge in the Court of Appeal that handed down the decision analysed section 18 of the Guardianship of Infants Act. In order to bring an application for an enforcement of access, there must first of all be an order, and the complainant must be able to demonstrate that there had been an unreasonable breach of access. If these two tests can be satisfied, then the Court has a number of remedies-
- It can direct compensatory access
- It can direct financial compensation for the loss suffered by the complainant as a result of having to bring the application
- It can direct that parties attend counselling, therapy or mediation.
In circumstances where the Court finds that breach of access was reasonable, then the Court can still direct enforcement but only on the third of the remedies, mainly counselling/mediation.
In the Court of Appeal the wife argued that where the breach was reasonable the Court should have no power to direct counselling therapy/ mediation, but the Court of Appeal disagreed.
In this case, the Court of Appeal formed the view that the daughter in question was thirteen and a half when she initially indicated that she was not going to attend any further access visits, and fifteen by the time the matter had come to Court and as such was in a position to make her own mind as to whether she wished to attend access or not.
Essentially the Court took the view that it was not going to make directions against the daughter’s wishes in relation to access, it also felt as the High Court had that the husband had shown no understanding as to the impact of his decision to tell his daughter that he was remarrying and he did not address this particular issue in his replying affidavits for the purposes of the High Court Application.
This decision is a very important decision and time will tell how much it is relied upon in circumstances where there is a breach of access, and how the same principles will apply if there is a breach of access in relation to a much younger child, and to what extent the onus would be on the complainant party in those circumstances to that access has been withdrawn/reduced unreasonably.
For further information on this or nay other family law matter, please do not hesitate to contact Brendan Dillon, Emma Dillon or Aoife Cathcart on 01 2960666.
