The Court of Appeal has determined that it would not be appropriate for a court to order that the 17-year-old child of a separating couple undergo an assessment under expert s.47 of the Family Law Act 1995, to determine her welfare where she will turn 18 in the coming months.
Section 47 report
Section 47 reports are regularly directed in family law proceedings involving divorce and judicial separation. The reports are prepared by an expert, often a psychologist, who meets the dependent child and each of the parents, and then prepares a report for the court on welfare considerations.
The reports provide useful guidance for the court in determining questions surrounding the child’s welfare, including custody, access and other such matters.
Court of Appeal
In YB v ZB [2023] IECA 154, a separated couple was seeking judicial separation in the High Court. A preliminary issue arose whereby the husband claimed parental alienation. He alleged that one day, their daughter stopped speaking with him, and he alleges, this was the result of parental alienation. In the context of the ongoing judicial separation proceedings, he made an interim application to the High Court that a s.47 report be ordered so that he could find out what the issues were as between him and the dependent child, and seek to restore their relationship.
The High Court declined his application, finding that the child could not be compelled to participate in the preparation of such a report considering she was 17 years old and there would be no orders made in relation to custody and access, given that the child would be 18 at that stage.
The husband appealed to the Court of Appeal, arguing that the High Court had simply accepted his wife’s evidence that the child did not wish to participate, arguing that welfare should be widely interpreted.
Wide jurisdiction
The decision represents a rare consideration by the Superior Courts of the s.47 jurisdiction. The Court of Appeal determined the meaning of ‘welfare’ under s.47 was very wide. It did not only include custody, access and related considerations. However, the court determined that reports could only be ordered when there were orders to be made in relation to the child. It was not appropriate for such reports to be directed in these particular circumstances when the child was about to turn 18 years old.
The appeal was dismissed.
